ACN 079 039 204
Table of contents Part 1 - Operation of Agreement...3 1. Entire agreement...3 2. Inconsistency with other documents...4 3. Conditions precedent...4 4. Term...4 5. Warranties regarding capacity and status...4 Part 2 - Company...5 6. Company s objectives...5 7. Company s action...5 Part 3 - Governance...5 8. Board composition...5 9. Board remuneration...6 10. Meetings...6 11. Shareholders Special Resolutions...8 12. Shareholders Simple Resolution...8 13. Directors Special Resolutions...9 14. Directors Simple Resolution...10 15. Other consents required...10 16. Winding up...10 Part 4 - Management of the Company...11 17. Management of the Company...11 18. Business Plan...11 19. Financial and other reporting...12 20. Accounts and records...12 21. Costs...13 22. Disclosure of information by Directors...13 Part 5 - Shares...13 23. Additional Shareholders...13 24. Other dealings with Shares...14 0000087832 Page i
Table of contents 25. Transferring Shares...14 26. Pre-emptive rights...14 27. Completion...15 28. Warranty...16 Part 6 - Shareholders...16 29. Shareholders relationship...16 30. Shareholder to further Company objectives...17 31. Shareholders obligations...17 32. Control of Shareholders...18 33. Confidentiality...18 34. Public announcements...19 Part 7 - Standard terms...19 35. Power of attorney...19 36. Other acts...19 37. Costs...20 38. Dispute resolution...20 39. Consents, approvals, requests and notices...20 40. Governing law...21 41. Dealing with rights and obligations granted by this Agreement...21 42. Parties...21 43. Trustees...22 44. Payments...22 45. Time...23 46. Rules of interpretation...23 Part 8 - Dictionary...24 47. Dictionary...24 Part 9 - Execution...27 Annexure A...30 1. Interpretation...30 0000087832 Page ii
Table of contents 2. Agreement to be binding...30 3. Obligations under the Agreement...30 4. Confirmation of the Agreement...31 0000087832 Page iii
Date The 1st day of January 2007 Parties Name ( Company ) ACN 079 039 204 Address Level 1, 5 King William Road, Unley, South Australia Name Address John Bruce Kain as trustee of the Emerald Hill Investment Trust ( Kain ) 42 Adelaide Street, Maylands, South Australia Name Address Samuel Andrew Fischer as trustee of the Fischer Family Trust ( Fischer ) Fordulo 1, 3 rd District, Budapest, Hungary Name Address Thomas James Hannaford and Amanda Louise Hannaford as trustees of the Hannaford Family Trust ( Hannaford ) 44 Hyland Terrace, Rosslyn Park, South Australia Name Redward Investments Pty Limited ( Hayward ) ACN 051 066 696 Address 21 Avanel Gardens Road, Medindie, South Australia Name Address Lachlan Haynes as trustee of the Shepherds Way Investment Trust ( Haynes ) 4 Canning Place Mews, Canning Place, London, United Kingdom Name Address Emily Young as trustee of Annabel Young and Edwina Young ( Young ) Flat B1 Tower I, Pine Court, 23 Sha Wan Drive, Pokfulam, Hong Kong Name Address Nicholas Harvey Heard and Melissa Jane Heard as trustees of The Seven Trust ( Heard ) 7 Jasper Street, Hyde Park, South Australia 0000087832 Page 1
Name Address Hamish Coombe Stuart ( Stuart ) 14 Tregunter Path, Tregunter Apartment 10A, Tower II, Mid Levels, Hong Kong Name Address Nicholas Lee ( Lee ) Villa 1138 A, Phu Nhuan Compound, Thau Dien An Phu, Vietnam Name GRQ Strategies Pty Limited ( Taylor ) ACN 091 896 730 Address Level 1, 5 King William Road, Unley, South Australia Name North Australia Investments Pty Limited ( McVann ) ACN 080 525 113 Address 4 Schultze Street, Larrakeyah, Northern Territory Name Address John Bruce Kain and Edward William Taylor as trustees of the ASI Pamplona Shareholding Trust No. 1 ( Kirchner ) 42 Adelaide Street, Maylands, South Australia Name Address Benjamin John Lawrence Sullivan ( Sullivan ) 7 Garnet Street, Gilberton, South Australia Introduction A. The Company was registered on 24 June 1997. B. The Company operates the Business from the Premises. C. The following parties are the Shareholders. They own the following Shares: Shareholder Share class Number of Shares Kain Ordinary 1 180,000 Fischer Ordinary 2 160,000 Hannaford Ordinary 3 160,000 Hayward Ordinary 4 130,000 Haynes Ordinary 5 80,000 0000087832 Page 2
Shareholder Share class Number of Shares Young Ordinary 6 80,000 Heard Ordinary 7 80,000 Stuart Ordinary 8 80,000 Lee Ordinary 9 80,000 Taylor Ordinary 10 80,000 McVann Ordinary 11 80,000 Kirchner Ordinary 12 50,000 Sullivan Ordinary 13 50,000 D. The Shareholders have agreed how the Company will be governed and how and when they will exit the Company. E. Part 1 sets out the term and operation of this Agreement. F. Part 2 sets out the Company s objectives and what it must do. G. Part 3 sets out how the Company will be governed. H. Part 4 sets out how the Company will be managed. I. Part 5 sets out how the Shares in the Company may be dealt with. J. Part 6 sets out the relationships between, and the obligations of, the Shareholders. K. The standard terms dealing with the administration and interpretation of this Agreement are in Part 7. L. The definitions used in this Agreement are in Part 8. M. This introduction is correct and forms part of this Agreement. Part 1 - Operation of Agreement 1. Entire agreement 1.1 The parties enter and complete this Agreement solely as a result of their own due diligence investigations, inquiries and advice. 1.2 This Agreement and the Constitution record the entire agreement between the parties as to the subject matter of this Agreement. 1.3 Any prior or collateral agreement (other than the Constitution) related to the subject matter of this Agreement is rescinded by this Agreement. The parties release each other from all claims in respect of any prior or collateral agreement (other than the Constitution). 0000087832 Page 3
1.4 Any representation not expressly warranted in this Agreement and the Constitution is withdrawn. The parties do not rely upon any representation that is not expressly warranted in this Agreement or the Constitution. The parties release each other from all claims in respect of any representation that is not expressly warranted in this Agreement or the Constitution. 1.5 The parties will not bring any claim based upon any prior or collateral agreement or any representation not expressed in this Agreement or the Constitution. 2. Inconsistency with other documents 2.1 If there is any inconsistency or conflict between this Agreement and any other document between the parties governing or regulating the Company (including the Constitution) then, as between the parties, the provisions of this Agreement prevail. 2.2 The parties will do all things necessary to amend any document that is inconsistent with this Agreement (including provisions conferring pre-emptive rights) so as to remove that inconsistency or conflict. 3. Conditions precedent 4. Term The operation of this Agreement is not subject to any conditions. 4.1 Commencement This Agreement commenced on 1 October 2006. 4.2 Termination for all parties This Agreement terminates automatically if: 4.2.1 all the parties agree; 4.2.2 the Company is wound up by Court order; 4.2.3 Shares offered in an IPO are allotted; or 4.2.4 an agreement to sell the issued Share Capital of the Company is completed. 4.3 Termination for a Shareholder 4.3.1 This Agreement terminates automatically for a Shareholder if it stops holding, directly or indirectly, Shares. 4.3.2 At that time the Shareholder has no further rights or obligations under this Agreement (except under clauses 33 and 34). 4.4 Accrued rights Termination of this Agreement is without prejudice to any accrued rights of the parties. 5. Warranties regarding capacity and status Each party represents and warrants that each of the following statements is true and accurate at the date of this Agreement: 0000087832 Page 4
5.1 if it is a corporate entity, it is validly existing under the laws of its place of incorporation; 5.2 it has the power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement; 5.3 it has taken all necessary action to authorise its entry into and performance of this Agreement and to carry out the transactions contemplated by this Agreement; and 5.4 its obligations under this Agreement are valid and binding and enforceable against it in accordance with its terms. Part 2 - Company 6. Company s objectives The objectives of the Company are to: 6.1 carry on the Business; 6.2 develop and expand the Business in accordance with the Business Plan; and 6.3 maximise the value of the Company. 7. Company s action The Company must do, or cause to be done, each thing listed in this clause 7. 7.1 Comply with laws Comply with all laws and the requirements of any relevant governmental agency and maintain any necessary authorisations, licences, permits and registrations in relation to the conduct of its Business. 7.2 Comply with Business Plan Comply with the Business Plan. Part 3 - Governance 8. Board composition 8.1 On 1 October 2006, the Board consisted of: 8.1.1 John Bruce Kain (Director/Chairman); 8.1.2 Thomas James Hannaford (Director); 8.1.3 Edward William Taylor (Director); 8.1.4 Benjamin John Lawrence Sullivan (Director); 0000087832 Page 5
8.1.5 Paul Damian Kirchner (ex-officio Consultant to the Board); 8.1.6 Nicholas Harvey Heard (ex-officio Consultant to the Board); and 8.1.7 Antonios Vroulis (Secretary). 8.2 Each Director is appointed for a term of one year. 8.3 At each AGM: 8.3.1 each Director s position is declared vacant; and 8.3.2 new Directors are appointed by Shareholders holding more than 50% of the Shares. 8.4 A Director may appoint an alternate Director to act as a Director in his absence. 9. Board remuneration 9.1 Directors fees The Company will pay Directors fees in accordance with the Directors remuneration policy adopted from time to time by the Shareholders. 9.2 Board expenses 10. Meetings The Company will reimburse the members of the Board all reasonable expenses incurred in the discharge of their obligations as members of the Board. Those expenses will be reimbursed within 20 business days after the Company receives a statement of account for those expenses. 10.1 Chairperson The Board must appoint a Chairperson. 10.2 Frequency of meetings 10.2.1 The Directors will meet at least 10 times each Financial Year. Each Director must attend at least eight meetings each Financial Year. 10.2.2 As far as practicable each Board Meeting must be held: (a) (b) on the same day and week of each month; and at the same location. 10.3 Notice of meetings 10.3.1 Any two Directors may convene a Board Meeting. 10.3.2 Each Director must be given seven business days notice of that Board Meeting. 10.3.3 Each notice of a Board Meeting must include: 0000087832 Page 6
(a) (b) (c) an agenda describing the business to be conducted at the Board Meeting; the minutes of the preceding Board Meeting; for the period since the end of the last reported period, for the month to date and for the year to date: (i) (ii) (iii) (iv) (v) a profit and loss statement relative to budget; consolidated finance report; consolidated balance sheet; major variations to budget; and cash flow and forecasts; (d) a report from the Secretary on the trading period since the end of the last reported period, including comments on: (i) (ii) revenues, profits and cash flow prospects; and any major commercial issues affecting the current and future trading position of the Company; and (e) copies of all papers to be considered at the Board Meeting. 10.4 Board business 10.4.1 Business not described in the agenda may not be dealt with at a Board Meeting, except if all Directors (including those not present at the Board Meeting) agree otherwise. 10.4.2 A Board Meeting may not transact any business unless a quorum is present. 10.5 Quorum 10.6 Proxy 10.5.1 The quorum for a Board Meeting is half of the Directors. 10.5.2 If a quorum is not present within 30 minutes after the time appointed for the Board Meeting, the Board Meeting is adjourned to the same time and place five business days later. At the reconvened meeting, a quorum is any half of the Directors. 10.5.3 A Director is taken to be present and entitled to vote at a Board Meeting if he is able to communicate with those present at a Board Meeting by any technological means by which simultaneously they are able to hear each other and participate in discussion. 10.6.1 A Director may appoint a proxy to attend a Board Meeting. A proxy need not be a Director. 10.6.2 The proxy must be appointed in writing. The appointment must be signed by the Director or an attorney of the Director. The appointment must state: (a) the Director s name and address; 0000087832 Page 7
(b) (c) (d) the proxy s name and address; the Board Meetings at which the proxy may be used; and the manner in which the proxy must vote on any resolution. 10.6.3 The proxy must be exercised according to its terms. 10.6.4 The appointment must be given to the Chairperson on or before the business day preceding the Board Meeting. An undated proxy is taken to be dated on the day that the Chairperson receives it. 10.6.5 A proxy is valid (including at an adjourned Board Meeting) unless: (a) (b) it is not given in accordance with this clause 10.6; and/or before the relevant Board Meeting, the Chairperson receives notice that the proxy has been revoked or that the Director died or lost his legal capacity after appointing the proxy. 10.7 Written resolutions 10.8 Voting All Directors may sign a document stating that they are in favour of a resolution. That resolution is passed on the day the document was last signed by a Director. That document may be executed in counterparts and exchanged by facsimile. 10.8.1 At a Board Meeting each Director has one vote. 10.8.2 The Chairperson will have a deliberative vote. The Chairperson will not have a casting vote. 11. Shareholders Special Resolutions The Company may only do, or commit to do, things listed in this clause 11 with a Shareholders Special Resolution, unless those things are authorised by the Business Plan. 11.1 Company s Constitution Alter the Constitution. 11.2 Winding up 11.3 Listing Take a step to dissolve or wind up the Company. Apply to a stock exchange for a listing or quotation of Shares. 12. Shareholders Simple Resolution The Company may only do, or commit to do, things listed in this clause 12 with a Shareholders Simple Resolution, unless those things are authorised by the Business Plan. 12.1 Business Plan Adopt or alter the Business Plan. 0000087832 Page 8
12.2 Directors Appoint or remove a Director. 12.3 Remuneration of Directors Pay any remuneration to a Director, except in accordance with the Business Plan. 12.4 Dividends Set or change the dividend or distribution policy of the Company, or declare, make or pay a dividend or other distribution. 13. Directors Special Resolutions The Company may only do, or commit to do, things listed in this clause 13 with a Directors Special Resolution, unless those things are authorised by the Business Plan. 13.1 Investment outside Business Plan Make a decision to invest funds other than in accordance with the Business Plan. 13.2 Trade sale or disposal of Business Sell the main operating Subsidiaries, all or a substantial part of the Business or all or a substantial part of the assets of a member of the Group. 13.3 Change in nature of Business Stop carrying on, or materially alter the scale of operations of, the Business. Start any substantial business or operational activities (except the Business). 13.4 Acquisitions and disposals Acquire any company or business. 13.5 Related party transactions Enter into, materially vary or terminate an agreement or arrangement with: 13.5.1 a Director or an associate of a Director; or 13.5.2 a Shareholder or an Affiliate of a Shareholder. 13.6 Financial assistance Make a loan or provide financial assistance to a Director or an associate of a Director or vary the terms of a loan or financial assistance previously provided to a Director or an associate of a Director. 13.7 Reorganisation of Capital Approve or carry into effect: 13.7.1 a bonus issue of Shares; 13.7.2 a sub-division or consolidation of Shares; or 0000087832 Page 9
13.7.3 any other reorganisation or reconstruction of the Share Capital where the Company does not pay or receive cash representing fair market value; 13.8 Accounting Standards and principles Materially alter the Accounting Standards or principles previously adopted by the Company for the preparation or presentation of individual or consolidated financial statements, except if required by law. 13.9 Balance date Change the balance date or accounting period of the Company. 13.10 Partnerships and joint ventures Enter into or alter a partnership or joint venture. 13.11 Insurance Alter the insurance cover over the Company or the Business or a key man insurance policy. 13.12 Stapled Shares 13.12.1 Staple another entity s shares to the Shares. 13.12.2 Reorganise or restructure the capital of the Company or any other entity whose shares are stapled to the Shares. 14. Directors Simple Resolution Unless otherwise stated in this Agreement, the Company may do, or commit to do, anything by a Directors Simple Resolution. 15. Other consents required Clauses 11 to 14 are without prejudice to any other consent or approval required under the Corporations Act or the Constitution for any matter in those clauses. 16. Winding up If a Shareholders Special Resolution gives all Shareholders and the Board notice requiring the Company to be wound up ( Winding Up Notice ): 16.1 the parties must ensure a meeting of Shareholders is held to consider a Shareholders Special Resolution to wind up the affairs and distribute the property of the Company, pursuant to the Corporations Act and/or the Constitution; 16.2 the parties must consent to the meeting being held at short notice; 16.3 each Shareholder must vote in favour of the Shareholders Special Resolution to wind up the Company; and 16.4 each Shareholder must ensure that a liquidator is appointed to the Company as soon as possible and in any event, within one month of a Winding Up Notice being given. 0000087832 Page 10
Part 4 - Management of the Company 17. Management of the Company 17.1 The management of the Company is vested in the Board. 17.2 The Board must manage the Company in accordance with the Business Plan. 17.3 The Secretary is responsible for: 18. Business Plan 17.3.1 preparing agendas and minutes of all Board Meetings; 17.3.2 the general administration of the Company; 17.3.3 managing the administration of the Company s investment portfolio; 17.3.4 researching proposed investments of the Company; 17.3.5 regularly reporting to the Shareholders; 17.3.6 the implementation of, and compliance with, the Business Plan; and 17.3.7 giving the Board full information about the activities of the Company, subject to the Board's supervision, lawful direction or delegation in accordance with this Agreement. 18.1 Business Plan The Company must carry on the Business in accordance with the Business Plan. The Business Plan must include, for the relevant period, the estimated, proposed or projected: 18.1.1 investment strategy of the Company; 18.1.2 mix of investments for the Company (that is whether, when and how much the Company will invest in Australian equities, international equities, property, private equity, and so on); 18.1.3 gearing levels for the Company; 18.1.4 the Company s dividend policy; 18.1.5 profit and loss statement, profitability, cashflow statements and balance sheet; 18.1.6 capital expenditure; 18.1.7 a statement of the responsibilities of each Shareholder and Director; 18.1.8 the Company s policy for remuneration of Directors and Shareholders; 18.1.9 the Company s criteria for admission of new Shareholders; and 0000087832 Page 11
18.1.10 the Company s policy for the valuation of Shares on the issue or buy back of Shares. 18.2 New Business Plans 18.2.1 At each AGM, the Board must submit to the Shareholders a draft Business Plan for the next Financial Year. 18.2.2 The Shareholders must consider the draft Business Plan and approve a Business Plan before the start of the next Financial Year. 18.3 Previous Business Plans If a new Business Plan is adopted, the old Business Plan does not have effect. 19. Financial and other reporting 19.1 Monthly The Company must, within 15 business days after the end of each month, give each Director unaudited management accounts for the preceding month. 19.2 Quarterly The Company must, within 20 business days after the end of each quarter, give each Director and Shareholder unaudited quarterly management accounts for the preceding quarter, including: 19.3 Annual 19.4 Other 19.2.1 commentary on the financial performance for that preceding quarter; 19.2.2 a quarterly management report on any variation between the actual results and those forecast in the Business Plan; 19.2.3 a profit and loss statement and cash flow statement for that preceding quarter; and 19.2.4 a balance sheet as at the end of that preceding quarter. The Company must, within 60 business days after the end of each Financial Year, give each Director and Shareholder unaudited financial statements (including consolidated profit and loss statements, balance sheets and cash flow statements) for the Financial Year. The Company must give each Shareholder any other reports or information reasonably required by the Shareholder. 20. Accounts and records 20.1 Books of accounts The Company must keep all usual and proper books of accounts. The books will: 20.1.1 contain particulars of: 0000087832 Page 12
(a) (b) (c) all Company assets and liabilities: all Company income and expenses; and all other matters necessary to promptly and accurately report the true financial position of the Company; 20.2 Access 20.1.2 be kept in accordance with the Corporations Act; and 20.1.3 reflect the Accounting Standards consistently applied. 20.2.1 The Company must give each Shareholder (and any accountant, agent, adviser, consultant or employee of each Shareholder) reasonable access to: (a) (b) the books, accounts and financial records of the Company; and the facilities of the Company to audit or value the Company or for any other reasonable purpose. Reasonable access means access during business hours on no less than two business days notice. 20.2.2 The Shareholder must pay any cost incurred in connection with any audit or valuation of the Company. 21. Costs The Company must pay the costs of giving any reports or information required to be given under this Agreement. Otherwise a Shareholder must pay the Company s costs of giving any reports or information requested by that Shareholder, except if all Shareholders agree that the Company will pay the costs. 22. Disclosure of information by Directors Subject to clause 33, each Director may disclose any information (including confidential information) about the affairs, finances and accounts of the Group that comes into the Director s possession from time to time to the Shareholder that appointed the Director. Part 5 - Shares 23. Additional Shareholders 23.1 The parties may agree that this Agreement may extend to govern other companies. That agreement must be in writing. 23.2 The issue of Shares to a proposed Shareholder is conditional upon the Board being satisfied that that proposed Shareholder meets the Company s criteria for new Shareholders. 23.3 Subject to clause 23.2, the Company may only issue Shares to a proposed Shareholder if more than 50% of the Shareholders (by value) agree. 23.4 The Company may issue Shares to a proposed Shareholder at market value. 0000087832 Page 13
24. Other dealings with Shares 24.1 In addition to any other existing restriction, no Shareholder may Transfer Shares other than in accordance with this Agreement. 24.2 The Shareholders may not Encumber their Shares except if: 25. Transferring Shares 24.2.1 the Encumbrance is subject to the terms of this Agreement; and 24.2.2 the Board agrees. 25.1 A Shareholder may not Transfer Shares to a person who is not a Shareholder unless: 25.1.1 it first exhausts the procedure set out in clause 26 (Pre-emptive rights); or 25.1.2 the Board first approves that Transfer. 25.2 A Shareholder may Transfer Shares to another Shareholder on any terms that those Shareholders agree. 26. Pre-emptive rights 26.1 Transfer Notice If a Shareholder wants to Transfer Shares to a person who is not a Shareholder, the Shareholder ( Seller ) must first give the other Shareholders ( Offerees ) notice ( Transfer Notice ) stating: 26.1.1 the class or classes of Shares proposed to be Transferred ( Sale Shares ); 26.1.2 the cash price per Sale Share ( Specified Price ); 26.1.3 the name of the proposed transferee (if known); and 26.1.4 whether that offer is conditional upon the sale of a minimum number of Sale Shares. 26.2 Response to Transfer Notice Within 20 business days after receiving a Transfer Notice ( Offer Period ), each Offeree must give the Seller notice ( Sale Notice ) stating: 26.2.1 whether it accepts or rejects in full the offer made in the Transfer Notice; and 26.2.2 the number of Shares which the Offeree will buy. The Offeree must give the Board a copy of its notice to the Seller. 26.3 If other Shareholders agree to buy Sale Shares 26.3.1 If the Offerees accept the offer made in the Transfer Notice for at least the minimum number of Sale Shares (if any) then those Offerees who accepted the offer ( Buyers ) are deemed to have unconditionally agreed to buy, and the Seller is deemed to have unconditionally agreed to sell, the Sale Shares at the specified price in the Shareholding Proportions of the Buyers. 0000087832 Page 14
26.3.2 The sale of the Sale Shares under this clause 26 will occur on the terms set out in clauses 27 and 28. Completion will occur 20 business days after the Offer Period expires. 26.4 If other Shareholders do not agree to buy Sale Shares If the Offerees do not accept the offer made in the Transfer Notice for at least the minimum number of Sale Shares (if any), the Seller may sell the Sale Shares to a person who is not a Shareholder: 26.4.1 within 60 business days after the Offer Period expires; 26.4.2 at a price per Sale Share not less than the Specified Price; and 26.4.3 on terms no more favourable than those offered to the Offerees. 26.5 No revocation 27. Completion A Transfer Notice or a Sale Notice cannot be revoked or withdrawn after it is given by a Shareholder, except if the other Shareholders consent. 27.1 Time and place Completion will take place on the Completion Date at the Company s registered office or such other place in the metropolitan area of Adelaide nominated three business days before the Completion Date by the Buyer. 27.2 Payment The Buyer must pay to the Seller the Purchase Price at Completion. 27.3 Seller s obligations On Completion the Seller will execute and deliver to the Buyer any transfer or title documents relating to the Sale Shares that the Buyer reasonably requires. 27.4 Buyer s obligations 27.4.1 The Buyer must use its best efforts to procure, on or before Completion, the release of the Seller from any liability arising under any guarantee, indemnity or security given by the Seller to secure the obligations of the Company. 27.4.2 If the Buyer cannot procure that release on or before Completion the Buyer must, as and from Completion: (a) (b) continue to use its best efforts to procure that release; and indemnify the Seller against any liability (including for legal costs on a solicitor and own client basis) arising under that guarantee, indemnity and/or security. 27.5 Transfer free from encumbrance The Seller will transfer the Sale Shares free from any Encumbrance. 0000087832 Page 15
27.6 Ownership passing The Buyer will own the Sale Shares from Completion. 27.7 Dividends On the Completion Date, the Company must pay to the Seller any dividends which, at Completion, had been declared but not paid. The Seller is not otherwise entitled to any of the Company s retained profits. 27.8 Stamp duty 28. Warranty The Buyer must pay the stamp duty and registration fees payable in respect of the transfer of the Sale Shares. The Seller warrants and represents to the Buyer that: 28.1 the Seller is the sole legal and beneficial owner of the Sale Shares; 28.2 the Seller is entitled to transfer the Sale Shares to the Buyer at Completion free from Encumbrance; and 28.3 the sale does not conflict with, and will not breach, any material term of any agreement, order or law which binds the Seller. Part 6 - Shareholders 29. Shareholders relationship 29.1 Shareholder not liable for another party Each Shareholder is responsible for its obligations under this Agreement and is not liable for any obligation of another party. 29.2 Relationship between Shareholders Except where this Agreement expressly states otherwise, this Agreement does not create any relationship between the Shareholders under which a Shareholder: 29.2.1 is liable generally for the acts or omissions of another Shareholder; or 29.2.2 may share profits. 29.3 Authority of Shareholders A Shareholder: 29.3.1 may not hold itself out as a partner, principal, agent or trustee of another Shareholder; and 29.3.2 except where this Agreement expressly states otherwise, does not have authority to act for, or to create or assume any responsibility or obligation on behalf of another Shareholder. 0000087832 Page 16
29.4 Shareholders must act in good faith Each Shareholder must act in good faith when dealing with another party and otherwise act reasonably in all matters relating to the Company. 30. Shareholder to further Company objectives Each Shareholder must: 30.1 comply with this Agreement; 30.2 use all reasonable efforts to promote the Business and the profitability of the Company; 30.3 exercise its voting rights and other rights as a Shareholder (as far as it can by exercising those rights) to give full effect to this Agreement (including the objectives in clause 6) and the rights and obligations of the parties under this Agreement; and 30.4 ensure any Director appointed by it from time to time (subject to the Director's duties to the Company) exercises their voting rights and other powers (as far as they can by exercising those rights and powers) to give full effect to this Agreement (including the objectives in clause 6) and the rights and obligations of the parties under this Agreement. 31. Shareholders obligations 31.1 Positive obligations The Shareholders must: 31.1.1 pay their personal debts when due; 31.1.2 fully account to the Company for all transactions relating to the Company and the Business; 31.1.3 promptly disclose to the Board all matters which may affect the Company and the Business; 31.1.4 do all things reasonably necessary to give effect to any Company decision; 31.1.5 comply with all Company policies approved by the Board; and 31.1.6 indemnify the Company and the other Shareholders against any liability arising from any thing done without the necessary authority or power to do so. 31.2 Negative obligations The Shareholders must not except as allowed by this Agreement: 31.2.1 give any security or promise of payment or commit the Company to any liability; 31.2.2 draw, accept or endorse any negotiable instrument on account of the Company; 31.2.3 compound, release or discharge any debt which is due or owing to the Company without receiving full payment of that debt; 0000087832 Page 17
31.2.4 do anything to allow the property or assets of the Company to be attached or taken in execution; 31.2.5 allow the bank accounts of the Company to be overdrawn in excess of a limit fixed from time to time by the Directors; or 31.2.6 become insolvent. 32. Control of Shareholders 32.1 A Shareholder that is trustee of a trust must not, without the consent of the Directors: 32.1.1 allow any change to the power (whether legally enforceable or not) to control the trust; 32.1.2 do anything which could bring about its removal or retirement as trustee; 32.1.3 default under the provisions of the trust deed; 32.1.4 allow its right of subrogation as trustee of the trust to be restricted; or 32.1.5 allow the vesting date of the trust to be determined. 32.2 A Shareholder that is a corporation, must not, without the consent of the Directors, allow any change to the power (whether legally enforceable or not) to control the corporation. 33. Confidentiality 33.1 Each Shareholder must: 33.1.1 keep the Confidential Information confidential; 33.1.2 use its best efforts to prevent any unauthorised access to, copying, use or disclosure of the Confidential Information; and 33.1.3 immediately notify the Company if it suspects or becomes aware of any unauthorised access to, copying, use or disclosure of the Confidential Information. 33.2 A party may access, copy (in any media) and use Confidential Information only to the extent reasonably necessary for it to: 33.2.1 exercise a right conferred, or to discharge an obligation imposed, by this Agreement; or 33.2.2 make decisions regarding its investment in the Company. Any copy must be marked Confidential. 33.3 A party may not disclose Confidential Information (in any media) except: 33.3.1 to the extent required by law or the rules of a stock exchange (provided that as soon as reasonably practicable before making that disclosure, it informs the Company of the fact of, and the reasons for, that intended disclosure); or 33.3.2 to a person: 0000087832 Page 18
(a) who has been approved in writing by the Company or is an employee of, or a professional adviser to, the Shareholders; and (b) who has undertaken to comply with clause 33. The disclosing party is liable for any breach of those undertakings including any breach by its nominee Director. 33.4 Within five business days of notice to do so from the Company, a party will return or destroy any document containing the Confidential Information and confirm in writing that it has complied with that notice. 33.5 The obligations in this clause 33 continue indefinitely. 34. Public announcements Unless approved by the Board, any announcement, press release or other communication of any kind relating to the negotiations of the parties or the subject matter or terms of this Agreement must be agreed by the parties except if it must be made by law or order of any Court, tribunal, authority or regulatory body (including a relevant stock exchange). Part 7 - Standard terms 35. Power of attorney 35.1 Each Shareholder irrevocably appoints each Director as its attorney: 35.1.1 to sign any instrument on its behalf; 35.1.2 to do any act on its behalf; and 35.1.3 to use its name, to give effect to this Agreement. 35.2 A certificate signed by a Director that an instrument or act falls within this power of attorney is sufficient evidence of that matter unless proved incorrect. 35.3 The power of attorney is granted to secure the performance of the obligations of the parties owed under this Agreement. 35.4 Each party must ratify any exercise of a power by an attorney. 35.5 Each Shareholder indemnifies its attorney against any claim, damage, loss, cost or liability to the extent arising from a lawful exercise of all or any of its powers under this clause 35. 36. Other acts Each party must, at its expense, promptly do all things reasonably necessary to give full effect to this Agreement. 0000087832 Page 19
37. Costs 37.1 Each party must bear its own costs in relation to the negotiation, preparation and execution of this Agreement. 37.2 The Company must pay all stamp duty, registration fees and any other government charges payable in respect of this Agreement. 38. Dispute resolution 38.1 Procedure 38.1.1 Before recourse to arbitration or litigation (other than an application for urgent interlocutory or declaratory relief) the parties must endeavour to resolve any dispute or claim arising out of or relating to this Agreement or its performance ( Dispute ) in accordance with the procedures set out in this clause 38. 38.1.2 All procedures set out in this clause 38 will occur in Adelaide, South Australia. 38.1.3 The timeframes set out in this clause 38 may be varied with the consent of all parties. 38.1.4 This clause 38 continues indefinitely. 38.2 Negotiation 38.2.1 A party may at any time deliver to the other parties a notice of a Dispute ( Dispute Notice ). The date upon which the Dispute Notice is delivered is referred to as the Dispute Notice Date. 38.2.2 The parties must deliver to each other a written response ( Answer ) within 10 business days after the Dispute Notice Date. The Dispute Notice and the Answer must include a statement of each party s position and a summary of arguments supporting that position. 38.2.3 The parties must negotiate in good faith to resolve the Dispute. 38.3 Mediation If the Dispute has not resolved within 20 business days of the Dispute Notice Date it will be mediated in accordance with the Australian Commercial Disputes Centre Guidelines for Commercial Mediation current at the Dispute Notice Date. Those Guidelines are incorporated into this Agreement. Where there is any inconsistency between those Guidelines and this Agreement, this Agreement will prevail. 39. Consents, approvals, requests and notices 39.1 Where conduct requires a consent or approval, that consent or approval must be given before that conduct occurs. 39.2 Any consent or approval may be subject to reasonable conditions. Unless stated otherwise, a consent or approval must not be unreasonably withheld. 39.3 A consent, approval, request or notice must be in writing and executed by the party or its agent. It may be given by: 0000087832 Page 20
39.3.1 pre-paid post, facsimile or email to the address on page 1 or to the address otherwise notified to all parties; or 39.3.2 by any other means allowed by law. Unless otherwise stated a copy of any consent, approval, request or notice must be given to each party. 39.4 A consent, approval, request or notice, if validly given, is deemed to have been received: 39.4.1 on the third business day after posting; 39.4.2 on the next business day after transmission by facsimile; 39.4.3 on the next business day after transmission by email; or 39.4.4 at any other time allowed by law. 39.5 Where two or more persons comprise a party, notice to one is effective notice to all. 40. Governing law This Agreement is governed by the laws of South Australia. The parties submit to the jurisdiction of the Courts of South Australia. Any proceeding brought in the Federal Court of Australia must be instituted in its South Australian District Registry. 41. Dealing with rights and obligations granted by this Agreement 42. Parties The rights and obligations under this Agreement: 41.1 are personal and cannot be assigned or charged without the prior consent of all parties; 41.2 cannot be waived except by express notice specifying the waiver; 41.3 cannot be amended or varied without the prior consent of all parties; 41.4 are in addition to and do not affect any other rights that party may have; and 41.5 will not merge with any act done to complete or perform this Agreement. 42.1 A party includes the party s successors and permitted assigns. 42.2 This Agreement confers no rights or obligations upon any person who is not a party. 42.3 An agreement, representation, or warranty: 42.3.1 on the part of two or more persons binds them jointly and severally; and 42.3.2 in favour of two or more persons is for the benefit of them jointly and severally. 0000087832 Page 21
43. Trustees 43.1 Application This clause 43 applies if a party ( Trustee ) is the trustee of a trust ( Trust ) and the Trust has been disclosed for this purpose to the parties. 43.2 Limited capacity 43.2.1 The Trustee enters into this Agreement only in its capacity as responsible entity or trustee (as applicable) of the Trust. 43.2.2 A liability arising under or in connection with this Agreement is limited to, and can be enforced against the Trustee only to the extent to which it can be satisfied out of the assets of the Trust out of which the Trustee is actually indemnified for the liability. 43.2.3 This limitation of the Trustee's liability applies despite any other provision of this Agreement. 43.3 Limited rights to sue No party may sue the Trustee in a capacity other than as responsible entity or trustee (as applicable) of the Trust, including: 43.3.1 to seek the appointment of a receiver (except in relation to property of the Trust), a liquidator, an administrator, or similar person to the Trustee; or 43.3.2 prove in any liquidation, administration or arrangement of or affecting the Trustee (except in relation to property of the Trust). 43.4 Exceptions This clause 43 does not apply to any obligation or liability of the Trustee to the extent that it is not satisfied because there is a reduction in the extent of the Trustee s indemnification out of the assets of the Trust, as a result of the Trustee s fraud, negligence or breach of trust. 43.5 Limitation on authority 44. Payments No attorney, agent, receiver or receiver and manager appointed in accordance with this Agreement has authority to act on behalf of the Trustee in a way which exposes the Trustee to personal liability. No act or omission of any such person is considered fraud, negligence or breach of trust of the relevant party for the purpose of clause 43.4. 44.1 A reference to money means Australian currency. 44.2 Unless otherwise agreed, payments must, at the payee s option, be made by, cash, bank marked cheque or telegraphic transfer or direct credit of cleared funds. 44.3 Unless otherwise specified, payments must be made without set off or deduction. 44.4 Any late payment attracts interest. Interest will be calculated at four percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time. That interest will accrue and be recoverable from day to day. 0000087832 Page 22
45. Time 45.1 Time means South Australian time. 45.2 A month means a calendar month. 45.3 A business day means any day that banks are generally open for business in Adelaide but not a Saturday, Sunday or a public holiday. 45.4 If an act must be done on a day that is not a business day, it may be done on the next business day. 45.5 Where time is to be calculated from a day or event, that day or the day of that event must be excluded from that calculation. 45.6 Unless otherwise specified, time is of the essence. 46. Rules of interpretation 46.1 Any provision of this Agreement must be read down to the extent necessary to be valid. If that is not possible, it must be severed. All other provisions of this Agreement are unaffected. 46.2 A provision of this Agreement will not be construed to the disadvantage of a party because that party was responsible for including that provision and/or that provision benefits that party. 46.3 In this Agreement unless the contrary intention appears: 46.3.1 a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; 46.3.2 a reference to the Company includes any Subsidiary from time to time and the rights and obligations of the parties apply to any Subsidiary; 46.3.3 fractions of Shares are rounded down to the nearest whole number when calculating the number of Shares issued or transferred; 46.3.4 a person includes any other legal entity and vice versa; 46.3.5 control of a company means the power (whether legally enforceable or not) to control, whether directly or indirectly: (a) (b) (c) the composition of the board of directors of that corporation; the voting rights of the majority of the voting shares of the corporation; and/or the management of the affairs of the corporation. 46.3.6 control of a trust means the power (whether legally enforceable or not) to control, whether directly or indirectly: (a) (b) (c) the appointment of any new or additional trustee of the trust; the removal of the trustee of the trust; and/or the management of the affairs of the trust. 0000087832 Page 23
46.3.7 the singular includes the plural and vice versa; 46.3.8 a gender includes the other gender; 46.3.9 where a term is defined, its other grammatical forms have a corresponding meaning; 46.3.10 a clause or annexure is a clause of, or an annexure to, this Agreement; 46.3.11 a reference to a document is to that document as amended or varied; 46.3.12 any legislation includes any subordinate legislation and amendments; 46.3.13 conduct includes any act, omission, representation, statement or undertaking whether or not in writing; and 46.3.14 including, or similar words, does not limit what else might be included. 46.4 Headings are for convenience and do not affect the interpretation of this Agreement. Part 8 - Dictionary 47. Dictionary In this Agreement unless the contrary intention appears: 47.1 Accounting Standards means: 47.1.1 the Accounting Standards as set from time to time pursuant to Part 12 of the Australian Securities and Investments Commission Act 2001 (Cth); or 47.1.2 if any matter is not covered by those Accounting Standards, the generally accepted accounting principles applied from time to time in Australia for a Company conducting a business similar to the Business will apply; 47.2 Affiliate means, in relation to a Shareholder: 47.2.1 a related body corporate of the Shareholder; 47.2.2 a company in which the Shareholder beneficially owns 50% or more of the issued shares; 47.2.3 a trust of which the Shareholder is a beneficiary and from which the Shareholder has received 50% or more of the distributions from that trust in the previous three Financial Years; 47.2.4 a trust of which a related body corporate of the Shareholder is the responsible entity, trustee, manager or investment adviser of the trust; 47.2.5 a limited partnership whose general partner is a related body corporate of the Shareholder; 47.2.6 a general partnership all of whose general partners are related bodies corporate of the Shareholder; 0000087832 Page 24
47.2.7 if the Shareholder is a limited partnership, general partnership or a trust, a custodian of an asset or assets of the limited partnership, general partnership or trust; or 47.2.8 if the Shareholder is an individual, the spouse, former spouse, mother, father, brother, sister or child over the age of 18 of the Shareholder; 47.3 AGM means an annual general meeting of the Shareholders; 47.4 Agreement means this agreement; 47.5 Board means the board of directors of the Company as constituted from time to time; 47.6 Board Meeting means a meeting of the Board (or any committee of the Board) convened and held in accordance with this Agreement and the Constitution; 47.7 Business means: 47.7.1 investing in listed and unlisted equities, property and any other investments approved in the Business Plan from time to time; 47.7.2 the business described in the Business Plan; and 47.7.3 any other activity carried on by the Company; 47.8 Business Plan means the program current from time to time for carrying on the Business and adopted under clause 18; 47.9 Buyer means the Shareholder buying any Shares under the terms of this Agreement; 47.10 Chairperson means the chairperson of the Board; 47.11 Completion means the completion of the sale and purchase of Shares under the terms of this Agreement; 47.12 Completion Date means the date upon which completion of the sale of Shares occurs under the terms of this Agreement; 47.13 Confidential Information means any of the following that is not in the public domain: 47.13.1 all Board papers prepared in accordance with clause 10.3.3; 47.13.2 any Business Plan; 47.13.3 all databases, source codes, methodologies, manuals, artwork, advertising manuals, trade secrets and all financial, accounting, marketing and technical information, customer and supplier lists, know-how, technology, operating procedures and other information, used by or relating to the Group and its transactions and affairs; and 47.13.4 all notes and reports incorporating or derived from the material referred to in clauses 19, 20 and 22; 47.14 Constitution means the Company s constitution; 47.15 Corporations Act means the Corporations Act 2001 (Cth); 47.16 Director means: 0000087832 Page 25
47.16.1 a director of the Company from time to time; and 47.16.2 a person who acts as a consultant to the Board from time to time; 47.17 Encumber means to mortgage, pledge, charge, assign as security or otherwise encumber; 47.18 Financial Year means any of: 47.18.1 the period from the date of registration of the Company to the following 30 June; 47.18.2 the period from each subsequent 1 July to each following 30 June before the termination of this Agreement; and 47.18.3 the period from the last 1 July before the termination of this Agreement to the date of termination of this Agreement; 47.19 Group means the Company and its Subsidiaries from time to time; 47.20 IPO means an initial public offering of Shares made under a prospectus or similar offer document stating that the Company has or will apply, in conjunction with the offering, for quotation of the Shares on a stock exchange; 47.21 Market Value means the market value of Shares calculated in accordance with the Company s valuation policy set out in the Business Plan; 47.22 Shares means ordinary shares in the capital of the Company; 47.23 Premises means any premises of the Business; 47.24 Purchase Price means the purchase price payable for any Shares sold under the terms of this Agreement; 47.25 Secretary means a secretary of the Company from time to time; 47.26 Seller means the Shareholder buying any Shares under the terms of this Agreement; 47.27 Share Capital means all of the Shares on issue; 47.28 Shareholder means a person that holds Shares and is a party to this Agreement; 47.29 Shareholding Proportions means, in respect of any Shareholder, a ratio determined as follows: The number of Shares held by that Shareholder Total number of Shares on issue 47.30 Simple Resolution means a resolution passed by more than one half of the Directors or Shareholders (as the case may be) present at the relevant meeting and who may vote on the resolution; 47.31 Special Resolution means a resolution passed by 75% or more of all Directors or Shareholders (as the case may be) present at the relevant meeting and who may vote on the resolution; 47.32 Subsidiary means any subsidiary of the Company from time to time; and 0000087832 Page 26