EXHIBIT 4.9
SHARE SALE AGREEMENT
PACIFIC BRANDS (UK) LTD
Pacific Dunlop Holdings (Europe) Limited
Pacific Dunlop Limited
and
PB Holdings NV
[LOGO OF FREEHILLS]
101 Collins Street Melbourne Victoria 3000 Australia
Telephone 61 3 9288 1234 Facsimile 61 3 9288 1567
www.freehills.com.au DX240 Melbourne
SYDNEY MELBOURNE PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability Scheme, approved
under the Professional Standards Act 1994 (NSW)
Reference
TABLE OF CONTENTS
Clause Page
1 Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 4
1.3 Business Day 5
1.4 Conflict 5
2 Sale and purchase 6
2.1 Sale of shares 6
2.2 Associated rights 6
3 Purchase Price 6
3.1 Amount 6
3.2 Payment at Completion 6
3.3 Final payment 6
4 Completion 6
4.1 Date for Completion 6
4.2 Delivery of documents 6
4.3 Board meetings 7
4.4 Buyer's obligations at completion 7
4.5 Interdependence 7
4.6 Conduct until Shares are registered 8
5 Before Completion 8
5.1 Carrying on Business 8
5.2 Treatment of Cash in Hand 8
5.3 Inter Company Debt 9
6 After Completion 9
6.1 Obligations relating to Taxes or Duties 9
6.2 Consultation 9
7 Warranties 9
8 Limitation of liability 9
9 Competition 10
9.1 Undertaking 10
9.2 Acquisition of interests in competing Businesses 10
9.3 Exclusion from restraint 10
9.4 Associates 11
9.5 Severability 11
10 Release of guarantees 11
11 Guarantee and indemnity 11
11.1 Guarantee 11
11.2 Indemnity 11
11.3 Extent of guarantee and indemnity 11
11.4 Continuing guarantee and indemnity 12
11.5 Warranties of the Guarantor 12
page 1
11.6 Rights 12
Schedule 1 - Share Details 13
Schedule 2 - Warranties 14
Schedule 3 - Disclosure Schedule 30
Schedule 4 - Intellectual Property Rights 31
Schedule 5 - Superannuation funds 32
Schedule 6 - Contracts 33
Schedule 7 - Guarantees 34
Schedule 8 - Employees 35
Schedule 9 - Plant and Equipment 36
Schedule 10 - Assets Leases 37
Schedule 11 - Properties 38
Schedule 12 - Inter Company Debt 39
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THIS SHARE SALE AGREEMENT
is made on 2001 between the parties specified in parts 1,
2 and 3 of schedule 1.
RECITALS
A. The Seller is the owner of the Shares.
B. The Seller agrees to sell and the Buyer agrees to buy
the Shares on the terms and conditions set out in this
agreement.
C. The Guarantor agrees to guarantee the performance by
the Seller of its obligations pursuant to this
agreement.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises
contained in this agreement:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
Accounting Standards has the meaning given to that term in the
Co-ordination Agreement;
Accounts has the meaning given to that term in the
Co-ordination Agreement;
Accounts Date means 30 June 2001;
Apportionment Statement has the meaning given to that term in
the Co-ordination Agreement;
Assets Leases means all leases, hire purchase agreements,
conditional purchase agreements and other hiring arrangements
to which the Company is party including, but not limited to,
those listed in schedule 10, but excludes leases in relation
to the Properties;
Associate means any person who is a connected person (as
defined in section 839 of the Income and Corporations Taxes
Act 1988 (United Kingdom)) of a seller;
Authorisation means any consent, registration, agreement,
certificate, licence, approval, permit, authority or exemption
from, by or with a Governmental Agency;
Business means the business carried on by the Company as more
particularly described in part 6 of schedule 1;
Business Day means a day on which banks are open for business
in Melbourne, Sydney and Auckland excluding a Saturday or a
Sunday or a public holiday;
Business Records means, the Company's customer lists and
supplier lists, records of Intellectual Property Rights,
Assets Leases, Contracts and Properties;
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Buyer means the company specified in part 2 of schedule 1;
Buyer Group Companies has the meaning given to that term in
the Co-ordination Agreement;
Buyer's Warranties means the warranties set out in part 1 of
schedule 2;
Cash in Hand means the amount of cash at bank on deposit or at
hand in the Company;
Claim means any claim or any course of action (including, but
not limited to, in contract, in tort or under statute) in
respect of this agreement;
Company means the company specified in part 4 of schedule 1;
Completion means completion of the sale and purchase of the
Shares under clause 4;
Completion Date has the meaning given to that term in the
Co-ordination Agreement;
Completion Statement has the meaning given to that term in the
Co-ordination Agreement;
Conditions has the meaning given to that term in the
Co-ordination Agreement;
Contracts means the agreements to which the Company is a party
and which are, wholly or partly, executory as at the
Completion Date, including, but not limited to, those listed
in part 1 of schedule 6, but excludes:
(a) the Assets Leases; and
(b) leases in relation to the Properties;
Co-ordination Agreement means the Co-ordination Agreement
executed on the same day as this agreement by, among others,
the Seller and the Buyer;
Data Room has the meaning given to that term in the
Co-ordination Agreement;
Dollars, A$ and $ means Australian dollars unless otherwise
specified in this agreement;
Duty means any stamp, transaction or registration duty or
similar charge imposed by any Governmental Agency and
includes, but is not limited to, any interest, fine, penalty,
charge or other amount imposed in respect of the above, but
excludes any Tax;
Effective Time has the meaning given to that term in the
Co-ordination Agreement;
Employees means an employee of the Company listed in schedule
8 who is still employed in the Business as at the Completion
Date;
Encumbrance means any mortgage, charge, lien, pledge, other
security interest or encumbrance (other than liens arising in
the ordinary course of business by operation of law and title
retention in respect of stock-in-trade);
Environmental Law has the meaning given to that term in the
Co-ordination Agreement;
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Foreign Exchange Contracts means all foreign exchange hedging
contracts entered by the PDL Group which relate exclusively to
the Business which remain current as at Completion, details of
which will be provided to the Buyer at the date of this
agreement and at Completion;
Governmental Agency means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity
in any part of the world;
Guarantees means the guarantees and other letters of comfort
and commitments of financial support given by the Seller and
its Associates in relation to the Business which remain in
force at the date of this agreement, including but not limited
to, as listed in schedule 7;
Guarantor means the company specified in part 3 of schedule 1;
Intellectual Property Rights means the rights and interests of
the Company in the internet domain names, trademarks, patents,
copyrights and designs listed in schedule 4;
Inter Company Debt means any amount owing (including trade
accounts payable and receivable):
(a) by the Company to a member of the PDL Group (except in
that member's capacity as an entity carrying on any
part of the Pacific Brands Business); or
(b) by a member of the PDL Group (except in that member's
capacity as an entity carrying on any part of the
Pacific Brands Business) to the Company,
immediately before Completion;
Interest Rate means the average rate displayed on the Reuters
Page BBSW for 90 day bank bills at 10:10 am Melbourne time
applicable to each Business Day on which amounts are
outstanding as confirmed by Westpac Banking Corporation and on
the basis that for a day other than a Business Day the rate
applicable to the last preceding Business Day will apply;
Linked Transaction Agreements has the meaning given to that
term in the Co-ordination Agreement;
Loss includes any damage, loss, claim, action, liability,
cost, expense, outgoing or payment;
Pacific Brands Business has the meaning given to that term in
the Co-ordination Agreement;
Payment Date has the meaning given to that term in the
Co-ordination Agreement;
PDL Group has the meaning given to that term in the
Co-ordination Agreement;
Plant and Equipment means the plant, equipment, machinery,
tools, furniture, fittings, lease hold improvements and motor
vehicles owned by the Company as at Completion and used
exclusively in the Business including, without limitation,
those listed in schedule 9;
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Power means any right, power, authority, discretion or remedy
conferred on the parties by this agreement or any applicable
law;
Properties means the properties leased under the Property
Leases;
Property Leases means the leases of real property listed in
schedule 11;
Purchase Price means the price payable for the Shares under
clause 3.1;
Records means all original and copy records, documents, books,
files, reports, accounts, plans, correspondence, letters and
papers of every description and other material regardless of
their form or medium and whether coming into existence before,
on or after the date of this agreement, belonging or relating
to or used by the Company including (without limitation)
certificates of registration, minute books, statutory books
and registers, books of account, Tax returns, title deeds and
other documents of title, customer lists, price lists,
computer programs and software, and trading and financial
records;
Secondary Consents has the meaning given to that term in the
Co-ordination Agreement;
Seller Group Companies has the meaning given to that term in
the Co-ordination Agreement;
Shares means all the shares in the capital of the Company, as
described in the column headed "Shares legally owned by the
Seller" in part 5 of schedule 1;
Seller means the company specified in part 1 of schedule 1;
Seller's Warranties means the warranties set out in part 2 of
schedule 2;
Stephen Tierney Share means the 1 share held by Stephen
Tierney on trust for the Seller as described in part 5 of
schedule 1;
Stock means the stock of the Business owned by the Company as
at Completion and includes, but is not limited to, raw
materials, components, work in progress, finished goods,
packaging materials, promotional materials, spare parts and
other consumables;
Superannuation Funds means the superannuation funds to which
the Company makes contributions in respect of the Employees as
listed in schedule 5;
Tangible Assets means Plant and Equipment and Stock;
Tax means any tax, levy, charge, impost, duty, fee, deduction,
compulsory loan or withholding, which is assessed, levied,
imposed or collected by any Governmental Agency and includes,
but is not limited to any interest, fine, penalty, charge, fee
or any other amount imposed on, or in respect of, any of the
above but excludes Duty;
Tax Law means any law relating to Tax; and
Warranties means the Buyer's Warranties and the Seller's
Warranties.
1.2 INTERPRETATION
In this agreement, unless the context otherwise requires:
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(a) headings and underlinings are for convenience only and
do not affect the interpretation of this agreement;
(b) words importing the singular include the plural and
vice versa;
(c) words importing a gender include any gender;
(d) other clauses of speech and grammatical forms of a
word or phrase defined in this agreement have a
corresponding meaning;
(e) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Governmental Agency;
(f) a reference to a part, clause, party, annexure or
schedule is a reference to a clause and part of, and a
party, annexure and schedule to this agreement and a
reference to this agreement includes any annexure and
schedule;
(g) a reference to a statute, regulation, proclamation,
ordinance or by-law includes all statutes,
regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, and a
reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under
that statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to a party to a document includes that
party's successors and permitted assigns;
(j) where the day on or by which any thing is to be done
is not a Business Day, that thing must be done on or
by the following Business Day;
(k) no rule of construction applies to the disadvantage of
a party because that party was responsible for the
preparation of this agreement or any part of it;
(l) if a covenant, undertaking, representation, warranty,
indemnity or agreement is made or given by two or more
parties, that covenant, undertaking, representation,
warranty, indemnity or agreement is made or given and
binds those parties jointly and severally; and
(m) if a party comprises two or more persons, a covenant,
undertaking, representation, warranty, indemnity or
agreement made or given by that party binds those
persons jointly and severally.
1.3 BUSINESS DAY
Where the day on or by which any thing is to be done is not a
Business Day, that thing must be done on or by the next
Business Day.
1.4 CONFLICT
If there is any conflict or inconsistency between anything
contained in this agreement and anything contained in the
Co-ordination Agreement, then the Co-ordination Agreement will
prevail.
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2 SALE AND PURCHASE
2.1 SALE OF SHARES
Subject to the Conditions having been fulfilled or waived in
accordance with the Co-ordination Agreement, the Seller will
sell and the Buyer will buy the Shares and all rights,
interest and powers in the Stephen Tierney Share for the
Purchase Price free of Encumbrances and other third party
rights on Completion.
2.2 ASSOCIATED RIGHTS
The Shares will be transferred under this agreement with all
rights attached or accruing to them on and from the Effective
Time. The Buyer is not entitled to the rights attached to the
Shares as at the date of this agreement or to any rights which
accrue between the date of this agreement and the Effective
Time, including dividend rights.
3 PURCHASE PRICE
3.1 AMOUNT
The Purchase Price is the value ascribed to the Company in the
Apportionment Statement in accordance with the terms of the
Co-ordination Agreement.
3.2 PAYMENT AT COMPLETION
It is acknowledged that under the Co-ordination Agreement, an
amount must be paid at Completion by the Buyer to Pacific
Dunlop Limited (or as otherwise directed by it) on behalf of
the Seller.
3.3 FINAL PAYMENT
On the Payment Date, the Buyer or the Seller, as appropriate,
must pay to the other any net amount plus interest on the
amount which may be payable in accordance with the provisions
of the Co-ordination Agreement.
4 COMPLETION
4.1 DATE FOR COMPLETION
Completion must take place on the Completion Date, subject to
and as provided for in the Co-ordination Agreement.
4.2 DELIVERY OF DOCUMENTS
At Completion, the Seller must deliver to the Buyer:
(a) original share certificates for the Shares;
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(b) duly completed transfers of the Shares to the Buyer in
registrable form, executed by the Seller;
(c) duly executed releases of all guarantees that have
been obtained in accordance with clause 10;
(d) the original certificate of incorporation or
registration of the Company;
(e) all original documents of title in relation to the
Intellectual Property Rights;
(f) any power of attorney or other authority under which
the transfers of the Shares are executed;
(g) duly executed instruments irrevocably waiving in
favour of the Buyer all rights of pre-emption which
any person has in respect of any of the Shares; and
(h) all Records, which must be complete and up to date (by
constructive delivery at the Company's premises).
4.3 BOARD MEETINGS
At Completion, the Seller must ensure that a meeting of the
directors of the Company is convened and conducts the
following business:
(a) approval of the registration of the Buyer as the
holder of the Shares in the register of members of the
Company; and
(b) revocation of all existing mandates for the operation
of bank accounts of the Company and approval of new
mandates in favour of the officers of the Company
nominated by the Buyer.
4.4 BUYER'S OBLIGATIONS AT COMPLETION
At Completion the Buyer must pay the Seller an estimate of the
Purchase Price in accordance with clause 3.2.
4.5 INTERDEPENDENCE
(a) Notwithstanding any provision of a Linked Transaction
Agreement but subject to clause 4 of the Co-ordination
Agreement, the obligations of the parties to the
Linked Transaction Agreements in respect of completion
(as defined in each Linked Transaction Agreement) are
interdependent.
(b) All actions at Completion under this agreement and
completion under each other Linked Transaction
Agreement will be deemed to take place simultaneously
and no delivery or payment will be deemed to have been
made until all deliveries and payments under the
Linked Transaction Agreements due to be made at or
immediately after completion (as defined in each
Linked Transaction Agreement) have been made.
(c) A breach of this agreement by any party to this
agreement is deemed to constitute a breach by the
defaulting party of each Linked Transaction Agreement
to which the defaulting party is a party.
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4.6 CONDUCT UNTIL SHARES ARE REGISTERED
After Completion and until the Shares are registered in the
name of the Buyer or its nominee, the Seller must take all
action lawfully required by the Buyer by written notice to the
Seller to vote on any resolutions of the Company as the Buyer
directs.
5 BEFORE COMPLETION
5.1 CARRYING ON BUSINESS
The Seller will procure that the Company uses all reasonable
endeavours to ensure that between the date of this agreement
and Completion, subject to clauses 5.2 and 5.3, the Business
is conducted in the ordinary course of business and that the
Company does not:
(a) enter into any material contract or arrangement
outside the ordinary course of trading or otherwise
than on arm's length terms;
(b) acquire or dispose of any assets other than on arm's
length terms in the ordinary course of business;
(c) make any material change to its policy and practice as
to payment of creditors and collection of trade
receivables;
(d) engage any new employee to fill a new role with an
annual remuneration package in excess of $120,000 or,
except in the ordinary course of the Business,
terminates the employment of any of its employees or
changes in any material respect the terms of
employment (including remuneration);
(e) sell or agree to sell any fixed asset with a value
of more than $250,000 or buy or commit to buy any
fixed asset with a value of more than $250,000;
(f) create any Encumbrance over any of its assets;
(g) incur any indebtedness or liability in the nature of
borrowings other than in the ordinary course of
business;
(h) distribute or return any capital to its members;
(i) pay any dividend to its members or pay any management
fee or similar amount;
(j) issue any shares, options or securities which are
convertible into shares in the Company; and
(k) alter its constitution,
unless the Buyer first consents in writing, which must not be
unreasonably withheld or delayed.
5.2 TREATMENT OF CASH IN HAND
(a) At any time before Completion, the Seller may arrange
for any Cash in Hand held by the Company to be removed
in any manner selected by the Seller.
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(b) Any Cash in Hand held by the Company as at the
Effective Time, will be included in the Completion
Statement.
5.3 INTER COMPANY DEBT
The parties agree that as soon as practicable after
Completion, they will take such steps as necessary to procure
that any Inter Company Debt owing to or by the Company is
extinguished, including but not limited to those Inter Company
Debts listed in schedule 12. Each party will on request
provide to the other evidence of such extinguishment.
6 AFTER COMPLETION
6.1 OBLIGATIONS RELATING TO TAXES OR DUTIES
After Completion, the Buyer must procure that the Company
provides the Seller with access to such employees and records
of the Company as the Seller reasonably requires to meet its
obligations under any law relating to Tax or Duty provided
such access is exercised and conducted in a manner to avoid
unreasonable disruption to the conduct of the Business and the
activities and operations of the Company and its employees.
6.2 CONSULTATION
If any Governmental Agency conducts an audit in relation to
the affairs of the Company relating to any period prior to the
Completion Date then the Buyer must procure that the Seller is
promptly notified of this and that the Seller is then
regularly consulted with in relation to the audit process
until resolved.
7 WARRANTIES
(a) The Buyer gives the Buyer's Warranties in favour of
the Seller on and subject to the terms set out in the
Co-ordination Agreement.
(b) The Seller gives the Seller's Warranties in favour of
the Buyer on and subject to the terms set out in the
Co-ordination Agreement.
8 LIMITATION OF LIABILITY
The Seller gives the Seller's Warranties in favour of the
Buyer on and subject to the limitations on liability set out
in the Co-ordination Agreement.
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9 COMPETITION
9.1 UNDERTAKING
In consideration for the respective promises of the Seller and
the Buyer to each other in this agreement, the Seller
undertakes to the Buyer that it will not for a period of 5
years, 4 years, 3 years, 2 years or 1 year after the
Completion Date in the United Kingdom:
(a) engage in any business or activity which is the same
as or substantially similar to or competitive with,
the Business or any material part of it;
(b) solicit, canvass, induce or encourage any person who
was at any time during the 6 months period ending on
the Completion Date a director, employee or agent of
the Company to leave the employment or agency of the
Company;
(c) solicit, canvass, approach or accept any approach from
any person who was at any time during the 6 months
period ending on the Completion Date, a client or
customer of the Company with a view to obtaining the
custom of that person in a business which is the same
as or substantially similar to or competitive with,
the Business; or
(d) interfere with the relationship between the Company
and its clients, customers, employees or suppliers.
9.2 ACQUISITION OF INTERESTS IN COMPETING BUSINESSES
Clause 9.1 does not prevent the Seller or any of its
Associates from acquiring an interest, directly or indirectly,
in a business in competition with the Business in the area
referred to in that clause if:
(a) the acquisition of the interest in the competing
business occurs as a result of or in conjunction with
an acquisition of an interest, directly or indirectly,
in other assets;
(b) the value of the competing business is not more than
15% of the value of the acquisition taken as a
whole; and
(c) the Seller or the relevant Associate uses its best
endeavours to dispose of the competing business or its
interest in the business within 12 months after its
acquisition.
9.3 EXCLUSION FROM RESTRAINT
This clause 9 does not restrict the Seller or any of its
Associates from:
(a) continuing to carry on any business (other than the
Business) carried on at the date of this agreement; or
(b) holding less than 5% of the issued share capital of a
company listed on a recognised Stock Exchange.
page 10
9.4 ASSOCIATES
The Buyer agrees that the provisions of this clause 9 only
apply to the Associates of the Seller for so long as those
entities remain Associates of the Seller.
9.5 SEVERABILITY
(a) If any of the several separate and independent
covenants and restraints in clause 9.1 are or become
invalid or unenforceable for any reason, then that
invalidity or unenforceability will not affect the
validity or enforceability of any of the other
separate and independent covenants and restraints in
clause 9.1.
(b) If any of the prohibitions or restrictions contained
in this clause 9 is judged to go beyond what is
reasonable in the circumstances and necessary to
protect the goodwill of the Company, but would be
judged reasonable and necessary if any activity were
deleted or the period or area were reduced, then the
prohibitions or restrictions apply with that activity
deleted or that period or area reduced by the minimum
amount necessary.
10 RELEASE OF GUARANTEES
(a) The Buyer must use its best endeavours to secure the
release of the Seller or any Associate of the Seller
from any Guarantee or Encumbrance provided in relation
to the Business, effective from Completion.
(b) If the Buyer is unable to secure the release under
clause 10(a), then the Buyer must pay the Seller an
amount equal to any Loss which the Seller or any
Associate of the Seller pays, suffers, incurs, or is
liable for in relation to any Guarantee or Encumbrance
referred to in clause 10(a) which relates to any act
or omission of the Company after Completion.
11 GUARANTEE AND INDEMNITY
11.1 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to
the Buyer the due and punctual performance of the Seller's
obligations under this agreement.
11.2 INDEMNITY
The Guarantor indemnifies and holds the Buyer harmless from
and against all Loss incurred or suffered by the Buyer and all
actions, proceedings, claims or demands made against the Buyer
as a result of default by the Seller in the performance of any
such obligation.
11.3 EXTENT OF GUARANTEE AND INDEMNITY
(a) This clause 11 applies:
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(1) to the present and future obligations of the
Seller under this agreement; and
(2) to this agreement, as amended, supplemented,
renewed or replaced.
(b) The obligations of the Guarantor under this
clause 11 extend to any change in the obligations of
the Seller as a result of any amendment, supplement,
renewal or replacement of this agreement.
(c) This clause 11 is not affected, nor are the
obligations of the Guarantor under this agreement
released or discharged or otherwise affected, by
anything which, but for this provision, might have
that effect.
(d) This clause 11 applies:
(1) regardless of whether the Guarantor is aware
of, or has consented to, or is given notice
of, any amendment, supplement, renewal or
replacement of any agreement to which the
Buyer and the Seller are a party or the
occurrence of any other thing; and
(2) irrespective of any rule of law or equity to
the contrary.
11.4 CONTINUING GUARANTEE AND INDEMNITY
This clause 11 is a continuing obligation of the Guarantor
despite any settlement of account and remains in full force
and effect until the obligations of the Seller under this
agreement have been performed.
11.5 WARRANTIES OF THE GUARANTOR
The Guarantor represents and warrants to the Buyer that:
(a) it has the corporate power to enter into this
guarantee and indemnity and has taken all necessary
action to authorise the execution, delivery and
performance of this agreement;
(b) the execution, delivery and performance of this
guarantee and indemnity will not violate any provision
of:
(1) any law or regulation or any order or decree
of any Governmental Agency of the
Commonwealth of Australia or any state or
territory;
(2) the constitution of the Guarantor; or
(3) any security agreement, deed, contract,
undertaking or other instrument to which the
Guarantor is a party or which is binding on
it.
11.6 RIGHTS
The Guarantor waives any right it has of first requiring any
of the Buyer Group Companies to commence proceedings or
enforce any other right against the Seller or any of the
Seller Group Companies or any other person before claiming
under this clause 11.
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SCHEDULE 1 - SHARE DETAILS
PART 1 - SELLER
Pacific Dunlop Holdings (Europe) Limited
PART 2 - BUYER
PB Holdings NV of 1170 Brussels, Terhulpsesteenweg 166
PART 3 - GUARANTOR
Pacific Dunlop Limited ABN 89 004 085 330 of Level 3,
678 Victoria Street, Richmond, Victoria 3121
PART 4 - COMPANY
Pacific Brands (UK) Ltd
PART 5 - SHARES
SHARES HELD ON
PLACE OF AUTHORISED ISSUED SHARES LEGALLY BEHALF OF THE
COMPANY INCORPORATION CAPITAL CAPITAL OWNED BY SELLER SELLER
--------------------------------------------------------------------------------------------------------
Pacific United Kingdom (pound)10,000,000 2,000,000 1,999,999 held 1 held by Stephen
Brands (10,000,000, by Seller Tierney as trustee
(UK) Ltd @ (pound)1 per
share)
PART 6 - BUSINESS
Footwear wholesaler
page 13
SCHEDULE 2 - WARRANTIES
PART 1 - BUYER'S WARRANTIES
1 BUYER AUTHORISED
The Buyer has taken all necessary action to authorise the execution,
delivery and performance of this agreement in accordance with its
terms.
2 POWER TO BUY
The Buyer has full power to enter into and perform its obligations
under this agreement and can do so without the consent of any other
person.
3 NO LEGAL IMPEDIMENT
So far as the Buyer is aware, the execution, delivery and performance
by the Buyer of this agreement comply with:
(a) each law, regulation, Authorisation, ruling, judgment, order
or decree of any Governmental Agency;
(b) the constitution or other constituent documents of the Buyer;
and
(c) any Encumbrance or document which is binding on the Buyer.
4 SOLVENCY
(a) The Buyer has not:
(1) gone into liquidation nor passed a winding up
resolution nor received or published a notice under
sections 601AA or 601AB of the Corporations Act or any
similar insolvency law of Belgium;
(2) gone into liquidation under the Insolvency Act
1986 (United Kingdom) nor been removed from the United
Kingdom companies register.
(b) No petition or other process for winding-up has been presented
or threatened against the Buyer and there are no circumstances
justifying such a petition or other process.
(c) No writ of execution has issued against the Buyer.
(d) No receiver or statutory manager of any part of the Buyer's
undertaking or assets has been appointed.
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5 NO PETITION
No petition or other process for winding-up has been presented or
threatened against the Buyer and there are no circumstances justifying
such a petition or other process.
6 NO WRIT OF EXECUTION
No writ of execution has issued against the Buyer.
7 NO RECEIVER OR ADMINISTRATOR
No receiver or receiver and manager or administrator of any part of the
undertaking or assets of the Buyer has been appointed.
8 KNOWLEDGE OF BUYER
Neither the Buyer nor a holding company (direct or indirect) of the
Buyer is aware of any matter or thing that at Completion constitutes a
breach of the Seller's Warranties.
page 15
PART 2 - SELLER'S WARRANTIES
1 AUTHORITIES
1.1 SELLER AUTHORISED
The Seller has taken all necessary action to authorise the
execution, delivery and performance of this agreement in
accordance with its terms and is validly existing and in good
standing.
1.2 POWER TO SELL
The Seller has full power to enter into and perform its
obligations under this agreement and is able to sell and
transfer the Shares being sold by it under this agreement
without the consent of any other person and free of any
pre-emptive rights, or rights of first refusal or any other
such rights which may restrict the transfer of the Shares to
the Buyer (except as disclosed in writing by the Seller).
1.3 NO LEGAL IMPEDIMENT
The execution, delivery and performance by the Seller of this
agreement complies with:
(a) each law, regulation, Authorisation, ruling, judgment,
order or decree of any Governmental Agency;
(b) the memorandum or articles of association of the
Seller; and
(c) any Encumbrance or document which is binding on the
Seller.
1.4 CORPORATE POWER
The Company:
(a) is validly existing and in good standing;
(b) is accurately described in part 4 of schedule 1;
(c) has full corporate power to own its properties, assets
and businesses and to carry on the Business; and
(d) has good and marketable title to all the assets
included in the Accounts.
1.5 CONSTITUTION
The copy of the constitution of the Company given to the Buyer
is a complete and accurate copy in all material respects.
1.6 CORPORATE NAME
The Company does not trade under a name other than its
corporate name (excluding trademarks or business names
registered in a name other than its corporate name).
page 16
2 COMPLIANCE WITH LAW
2.1 COMPLIANCE WITH LAW
The Company has complied in all material respects with all
applicable laws (whether applicable to the conduct of the
Business, the assets of the Business or the Properties) and no
material contravention or allegation of any material
contravention of any applicable law is known to the Seller.
2.2 AUTHORISATIONS
The Company holds all necessary material Authorisations
required to conduct the Business, use the assets of the
Business and occupy the Properties and has paid all fees due
in relation to them and is not in breach of any conditions
under them where such breach would be likely to have a
material and adverse effect on the Business as currently
carried on.
3 SHARES AND CAPITAL
3.1 TITLE
The Seller is the legal and beneficial owner of the Shares
being sold by it under this agreement which are free of all
Encumbrances and other third party interests or rights.
3.2 ISSUED CAPITAL
The Shares and the 1 share held by Stephen Tierney (as
described in part 5 of schedule 1) are all the issued shares
in the capital of the Company and were validly issued by the
Company.
3.3 FULLY PAID
The Shares are fully paid and no money is owing in respect of
them.
3.4 ISSUE OF OTHER SECURITIES
The Company is not under any obligation to issue or allot, and
has not granted any person the right to call for the issue or
allotment of or exercise any option over, any shares or other
securities of the Company which is still current and
subsisting.
4 POSITION SINCE THE ACCOUNTS DATE
4.1 POST ACCOUNTS DATE
Since the Accounts Date the Company has not:
(a) entered into any material contract or arrangement
outside the ordinary course of trading or otherwise
than on arm's length terms;
(b) acquired or disposed of any assets other than on arm's
length terms in the ordinary course of business;
(c) created an Encumbrance over any of its assets;
page 17
(d) incurred any indebtedness or liability in the nature
of borrowings other than in the ordinary course of
business;
(e) in the conduct of the Business made any material
change to its policy or practice as to the payment of
creditors or collection of trade receivables;
(f) engaged any new employee to fill a new role with an
annual remuneration package in excess of $120,000 or,
except in the ordinary course of the Business,
terminated the employment of any of its employees or
changed in any material respect the terms of
employment (including remuneration);
(g) sold or agreed to sell any fixed asset with a value of
more than $250,000 or bought or committed to buy any
fixed asset with a value of more than $250,000;
(h) distributed or returned any capital to its members;
(i) paid any dividend to its members or paid any
management fee or similar amount;
(j) issued any shares, options or securities which are
convertible into shares in the Company;
(k) altered its memorandum or articles of association;
(l) incurred or undertaken any actual or contingent
liabilities or obligations (including Tax) except in
the ordinary course of business; or
(m) there has been no change in the accounting policies,
practices and principles of the Company,
except, in respect of the period between the date of this
agreement and Completion, if the Buyer has first consented in
writing.
4.2 SUPPLIERS/CUSTOMERS
Since the Accounts Date:
(a) none of the following suppliers of the Business:
Kuehne & Nahgel, Begley Hobba & Manton, Robert Ng,
Zenith Media, Dow Chemical, Helm AG, Ulee, Hewlett
Packard, PT Goldindo Menawian and BASF has:
(1) reduced the level of its supplies to the
Company other than in the ordinary course of
business;
(2) indicated an intention to cease or reduce the
volume of its trading with the Company after
Completion; or
(3) materially altered the terms on which it
trades with the Company; or
(b) none of the following customers of the Business:
Kmart, Big W, Myer/Grace Bros, Target, Best & Less,
Lowes Manhattan, Woolworths, Payless Shoes, Harvey
Norman and David Jones has:
(1) reduced the level of its custom from the
Company other than in the ordinary course of
business;
(2) indicated an intention to cease or reduce the
volume of its trading with the Company after
Completion; or
page 18
(3) materially altered the terms on which it
trades with the Company.
5 TANGIBLE ASSETS
5.1 TITLE TO ASSETS
All material Tangible Assets are:
(a) (other than items under repair and stock-in-transit)
in the possession or under the control of the Company;
and
(b) the absolute property of the Company free of all
Encumbrances, other than the Tangible Assets subject
to the Assets Leases.
5.2 ASSETS NOT OWNED
All material Tangible Assets which are used by the Company but
are not owned by the Company are used pursuant to the Assets
Leases or other arrangements entered into on arm's length
terms in the ordinary course of the Business.
5.3 PLANT AND EQUIPMENT
All Plant and Equipment listed in schedule 9 and currently in
use in the Business is:
(a) in good working order;
(b) capable of doing the job for which it is now being
used; and
(c) in reasonable condition having regard to its age and
fair wear and tear.
6 ENCUMBRANCES
6.1 OWNERSHIP OF SHARES
As at Completion the Seller will be the legal and beneficial
owner of the Shares being sold by it under this agreement free
of Encumbrances.
6.2 DISCHARGES BY COMPLETION
The Seller has not granted or created, or agreed to grant or
create, any Encumbrance in respect of the Shares being sold by
it under this agreement or the assets of the Company other
than any which will be discharged on or before Completion.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 SCOPE
So far as the Seller is aware, the Company owns or has an
enforceable right to use all intellectual property rights
needed to carry on the Business in the places and in the
manner currently carried on.
page 19
7.2 OWNERSHIP AND USE
(a) The Company is the legal and beneficial owner of all
the Intellectual Property Rights listed in parts 1 and
3 of schedule 4.
(b) The Company has, by way of a valid, binding and
enforceable licence from a third party, a lawful right
to use in the places and manner in which they are
currently used by the Company in the Business all the
Intellectual Property Rights listed in part 2 of
schedule 4.
7.3 NO THIRD PARTY RIGHTS
So far as the Seller is aware, no person, other than the
Company or a licensee of the Company disclosed in part 3 of
schedule 4 has any right to any Intellectual Property Right
listed in part 1 of schedule 4.
7.4 NO INFRINGEMENT
So far as the Seller is aware, the use by the Company of the
Intellectual Property Rights listed in schedule 4 does not
breach or infringe any Intellectual Property Right of any
other person nor, so far as the Seller is aware, are there any
allegations that the Company has infringed or is infringing
the intellectual property rights of a third party.
7.5 DISPUTES
The Company is not currently involved in any material dispute
with any third party in relation to the Intellectual Property
Rights listed in schedule 4.
7.6 ROYALTIES/FEES
Other than in respect of the Intellectual Property Rights set
out in part 2 of schedule 4, there are no material royalties,
licence fees or other similar fees payable by the Company in
connection with the use of any Intellectual Property Rights.
8 ASSETS LEASES
8.1 NATURE
The Assets Leases were entered into within the ordinary course
of business.
8.2 NO DEFAULT
The Company is not and, so far as the Seller is aware, no
other party to any Assets Lease is, in default under an Assets
Lease where such breach or default would be materially and
adversely prejudicial to the Company in carrying on the
Business and the Company has received no notice of any default
of any Asset Lease.
8.3 VALIDITY
So far as the Seller is aware, each Asset Lease:
(a) is valid and subsisting;
(b) has not been amended or modified; and
(c) is not terminable by virtue of the sale of the Shares.
page 20
8.4 ASSETS LEASES USED IN THE BUSINESS
The Asset Leases constitute all the lease and hire purchase
agreements used in the Business by the Company.
9 CONTRACTS
9.1 NATURE OF CONTRACTS
So far as the Seller is aware, part 1 of schedule 6 and parts
2 and 3 of schedule 4 contains details of all Contracts which:
(a) are not within the ordinary course of ordinary
business of the Business;
(b) are not on arm's length terms;
(c) are not capable of complete performance or
termination without payment of damages, within 12
months from the date of this agreement;
(d) restrict the Company's freedom to carry on the
Business in the places and the manner in which it is
currently carried on;
(e) are contracts (not being contracts for the purchase or
sale of Stock) which are expected to result in
expenditure by the Company of more than $1,000,000;
(f) are distribution or agency agreements; and
(g) entitle the other party to terminate the contract or
impose terms less favourable to the Company due to the
sale of the Shares.
9.2 NO DEFAULT
The Company is not and, so far as the Seller is aware, no
other party to any Contract is in default under such Contract
where such breach or default would be materially and adversely
prejudicial to the Company in carrying on the Business as
currently carried on and there are no grounds for rescission,
avoidance or repudiation of any such Contract where such
rescission, avoidance or repudiation would be materially and
adversely prejudicial to the Seller in carrying on the
Business as currently carried on.
9.3 FOREIGN CURRENCY
Part 2 of schedule 6 contains a listing, which is accurate in
all material respects, of outstanding commitments of the
Company relevant to the Business as at the date stated in that
schedule in relation to foreign currency hedging contracts.
9.4 COPIES OF CONTRACTS
So far as the Seller is aware, the Data Room contained copies
of all Contracts which are material to the operation of the
Business.
9.5 TAXES
All Taxes (including stamp duty or any similar tax) payable on
all transactions to which the Company is a party, or that the
Company has an interest in enforcing have been paid or are
provided for in the Accounts.
page 21
10 PROPERTIES
10.1 COMPANY'S INTEREST
The Company has no interest in real property which it uses in
the Business except for its interest in the Properties.
10.2 OCCUPATION AND USE
The Company has exclusive occupation and quiet enjoyment of
the Properties and the Company's use of the Properties, so far
as the Seller is aware, complies in all material respects with
all acts, regulations, planning schemes, developments,
approvals, permits and requirements (including zoning
requirements) of any governmental agency (not including in
relation to Environmental Law, which this warranty does not
apply to). None of the Properties, so far as the Seller is
aware, is subject to any sub-lease, tenancy or right of
occupation by any other party.
10.3 NO BREACH
The Company has not received a notice of default in respect of
any Property which remains outstanding and asserts
non-compliance with the lease of that property.
10.4 NO NOTICES
The Company has not received any notice from any third party
in respect of the Properties:
(a) in respect of the compulsory acquisition or resumption
of any part of any of the Properties; or
(b) asserting that the current use of the Properties
breaches the requirements of any relevant planning
scheme; or
(c) which would be likely to have a materially adverse
effect on the use of the Properties in the Business as
currently used.
10.5 [NOT USED]
10.6 PROPERTY DETAILS
The particulars of the Properties set out in schedule 11 are
true and correct in all material aspects.
10.7 PROPERTY DISCLOSURE
Details of all material documentation pursuant to which the
Properties are owned, used or occupied by the Company have
been provided to the Buyer and there are no other documents,
correspondence or other material which have not been provided
to the Buyer which would have a material adverse affect on the
interests of the Company in the Properties.
10.8 DISPUTES
There are no material disputes claims or actions relating to
any of the Properties or their use including, but not limited
to, disputes with any adjoining or neighbouring owner with
respect to boundary walls or fences or with respect to any
easement, right or means of access to the Properties.
page 22
10.9 [NOT USED]
10.10 PROPOSED DISPOSAL
The Company is not a party to any outstanding agreement to
acquire or dispose of land or Properties (including the
Properties) or any interest in land or Properties.
10.11 PROPERTY LEASE DISCLOSURE
In relation to the Property Leases, particulars of which are
set out in schedule 11:
(a) written copies of which have been provided to the
Buyer, and are so far as the Seller is aware, complete
in all material aspects recordings of their terms and
there are no other agreements, documents or
understandings in relation to the Property Leases; and
(b) so far as the Seller is aware, are current and
enforceable.
10.12 TERMINATION NOTICE
No lessor under a Property Lease has served any notice to
terminate the Property Lease.
10.13 ASSIGNMENT
Neither the Company nor the Seller:
(a) has agreed to any assignment, subletting, parting with
possession or surrender of a Property Lease or any
part of the property leased; or
(b) has given any materially false or misleading
information to an authority having jurisdiction over
property the subject of a Property Lease.
11 OFFERS OUTSTANDING
Any offer, tender or quotation made by the Company in respect
of the Business which is outstanding and capable of acceptance
by a third party, was made in the ordinary course of the
Business.
12 SHAREHOLDINGS
The Company is not the holder or beneficial owner of any
shares or other securities in any company.
13 MEMBERSHIPS
The Company is not a member of any joint venture, partnership
or unincorporated association (other than a recognised trade
association).
page 23
14 EMPLOYEES
14.1 LIST OF EMPLOYEES COMPLETE
Schedule 8 contains a complete list of the Company's employees
employed in the Business as at the date indicated in the
schedule and the Buyer has been given all material details of
their employment benefits.
14.2 INCENTIVE SCHEMES
The Company has not agreed to any share incentive scheme,
share option scheme, bonus scheme, profit-sharing scheme or
other employee incentive scheme in respect of the Business or
with any Employee which has not been fairly disclosed to the
Buyer.
14.3 SERVICE AGREEMENTS
The Company is not a party to any written employment or
service agreement with any Employee requiring the giving of
more than three months notice to the employee which has not
been fairly disclosed to the Buyer.
14.4 MANAGEMENT AGREEMENTS
The Company does not have any material agreement with any
person for the provision of consulting or management services
in respect of the Business which has not been fairly disclosed
to the Buyer.
14.5 DISPUTES
The Company is not involved in any material dispute with any
Employees (past or present) and is not aware of any
circumstances likely to give rise to any dispute.
14.6 COMPLIANCE
The Company is not in breach in any material respect of any
employment contract with any Employee as at the date of this
agreement.
14.7 COMPLIANCE
The Company has complied with and continues to comply with all
obligations arising under law, equity, statute (including
occupational health and safety, annual leave, long service
leave, equal opportunity, anti-discrimination, Taxation,
superannuation, workers compensation and industrial laws),
award, enterprise agreement or other instrument made or
approved under any law with respect to its past and present
employees and contractors.
14.8 DISCLOSURE
Except as set out in the Data Room there are no awards,
enterprise agreements or other instruments made or approved
under law which apply to employees of the Company.
page 24
15 SUPERANNUATION
15.1 LIST OF SUPERANNUATION FUNDS
The Superannuation Funds are the only superannuation schemes
or pension arrangements to which the Company makes
contributions in respect of the Employees.
15.2 FUNDING
The Company has paid all contributions due by it to the
Superannuation Funds in respect of the Employees.
16 LITIGATION
16.1 NOT A PARTY TO ANY LITIGATION
The Company is not:
(a) a party to any material prosecution, litigation or
arbitration proceedings; or
(b) so far as the Seller is aware, subject to any material
administrative or governmental investigation,
and the Seller is not aware that any such proceeding or
investigation is threatened or pending.
16.2 NO CIRCUMSTANCES
There are no circumstances of which the Seller is aware which
may give rise to any proceeding or investigation referred to
in warranty 16.1.
17 [NOT USED]
18 SOLVENCY
18.1 NO LIQUIDATION OR WINDING-UP
The Company has not gone into liquidation under the Insolvency
Act 1986 (United Kingdom) nor been removed from the United
Kingdom companies register.
18.2 NO PETITION
No petition or other process for winding-up has been presented
or threatened against the Company and there are no
circumstances justifying such a petition or other process.
18.3 NO WRIT OF EXECUTION
No writ of execution has issued against the Company.
page 25
18.4 NO RECEIVER OR ADMINISTRATOR
No receiver or statutory manager of any part of the Company's
undertaking or assets has been appointed.
18.5 PAYMENT OF DEBTS
The Company:
(a) has not stopped paying its debts as and when they fall
due;
(b) is not insolvent within the meaning of the Insolvency
Act 1986; and
(c) is not subject to voluntary administration under the
Insolvency Act 1986 (United Kingdom).
18.6 LIQUIDATION
The Seller has not gone into liquidation under the Insolvency
Act 1986 (United Kingdom) nor been removed from the United
Kingdom companies register.
18.7 PETITION
No petition or other process for winding-up has been presented
or threatened against the Seller and there are no
circumstances justifying such a petition or other process.
18.8 WRIT OF EXECUTION
No writ of execution has issued against the Seller.
18.9 RECEIVER MANAGER
No receiver or statutory manager of any part of the Seller's
undertaking or assets has been appointed.
19 INSURANCE
19.1 POLICIES
Those assets of the Company which are of an insurable nature
are insured by the Company against fire and other usual risks
on a basis which the Seller considers commercially prudent.
20 INFORMATION
20.1 WRITTEN INFORMATION
In relation to written information provided by the Seller to
the Buyer in relation to the sale of the Shares sold by it
under this agreement:
(a) if that information comprised copies of documents,
correspondence or other materials the copies provided
were, so far as the Seller is aware, true and
complete;
page 26
(b) if that information comprised historical data about
the Business prepared by the Seller or the Company,
that data was, so far as the Seller is aware, true and
correct in all material respects.
20.2 ACCURACY
Each of the statements and all information set out, or
referred to, in the Disclosure Schedule, the schedules
numbered 4 to 12 to this agreement are complete and accurate
in all material respects and not misleading.
21 BUSINESS RECORDS
The Business Records are in the Company's possession or
control and will be maintained by the Company in accordance
with its usual practice pending Completion.
22 TAXES AND DUTIES
22.1 TAX PAID
Any Tax arising under any Tax Law payable in respect of any
transaction, income or asset of the Company which has become
due for payment has been paid.
22.2 SINCE ACCOUNTS DATE
The conduct of the Business since the Accounts Date will only
give rise to liability to Tax in the ordinary course of
business.
22.3 PROVISION IN ACCOUNTS
Adequate provision has been made in the Accounts for any Tax
on the Company which is payable or may become payable in
respect of any transaction or income occurring or arising
before the Accounts Date but which was unpaid as at the
Accounts Date.
22.4 WITHHOLDING TAX
Any obligation of the Company under any Tax Law to withhold
amounts at source, including, but not limited to, withholding
tax, has been complied with.
22.5 RECORDS
The Company has maintained proper and adequate records to
enable it to comply with its obligations to:
(a) prepare and submit any information, notices,
computations, returns, declarations, elections and
payments required in respect of any Tax Law;
(b) prepare any accounts necessary for the compliance of
any Tax Law; and
(c) retain necessary records as required by any Tax Law.
page 27
22.6 RETURNS SUBMITTED
The Company has submitted any necessary information, notices,
computations, returns, declarations and elections to the
relevant Governmental Agency in respect of any Tax or any Duty
relating to the Company.
22.7 RETURNS ACCURATE
Any information, notice, computation, return, declaration or
election which has been submitted by the Company to a
Governmental Agency in respect of any Tax or Duty:
(a) discloses all material facts that should be disclosed
under any Tax Law; and
(b) has been submitted on time.
22.8 COPIES ACCURATE
All copies of any information, notices, computations, returns,
declarations or elections submitted by the Company in respect
of any Tax or Duty which have been supplied to the Buyer by
the Seller are true copies of the originals.
22.9 NO DISPUTES
The Company is not currently engaged in any dispute with any
Governmental Agency in respect of any Tax or Duty and is not
aware of any circumstances that may give rise to such a
dispute.
23 SELLER'S KNOWLEDGE
The Seller is not aware of any matter or thing that is or may
be inconsistent with the Buyer's Warranties.
24 EFFECT OF SALE OF SHARES
24.1 CUSTOMERS/SUPPLIER RELATIONSHIPS
As far as the Seller is aware, the transfer of the Shares to
the Buyer under this agreement will not result in any supplier
or customer of the Company ceasing or being entitled to
substantially reduce its level of business with the Company.
24.2 EFFECT OF SALE
The entry into and performance of this agreement does not and
will not:
(a) result in the breach of any of the terms, conditions
or provisions of any agreement or arrangement to which
the Company is a party; or
(b) relieve any person from any obligation to the Company;
(c) result in the creation, imposition, crystallisation or
enforcement of any Encumbrance or other third party
right or interest on the Company, its assets or
undertaking; or
(d) result in any indebtedness of the Company becoming due
and payable.
page 28
25 TRADE PRACTICES
So far as the Seller is aware, neither the Company nor any of its
officers or employees has, in the two years before Completion,
committed or omitted to do any act or thing the commission or omission
of which is a material contravention of the Competition Act 1998 in the
United Kingdom.
26 LIABILITY UNDER ASSET AND OTHER SALE AGREEMENTS
The Company will not have any obligations or liabilities (actual or
contingent) after Completion to:
(a) do any act, matter or thing; or
(b) pay any moneys under any indemnity,
under any agreement entered into prior to Completion for the sale or
purchase of any business interest, shares or partnership interest.
page 29
SCHEDULE 3 - DISCLOSURE SCHEDULE
The matters set out in this disclosure schedule constitute formal
disclosure to the Buyer of facts or circumstances which are, or may be,
inconsistent with the Seller's Warranties. The Seller gives no
representation as to the completeness or accuracy of the disclosures in
this schedule. While some disclosures have, for convenience, been set
against specific Seller's Warranties, they constitute disclosure
against any other Seller's Warranty to which they may apply.
Seller Warranty Number Matter Disclosed
page 30
SCHEDULE 4 - INTELLECTUAL PROPERTY RIGHTS
PART 1 - INTELLECTUAL PROPERTY RIGHTS OWNED BY THE COMPANY
Refer to attached schedule of owned IP.
PART 2 - LICENSES TO THE COMPANY TO USE INTELLECTUAL PROPERTY RIGHTS
PROPERTY
PARTIES (eg TRADE MARK Etc) TERRITORY/ EXCLUSIVITY EXPIRY DATE
- ----------------------------------------------------------------------------------------------------------------
Licensor - JC Bamford JCB brand and any United Kingdom, Channel 31 May 2002
Excavator Limited associated imagery owned Islands Republic of
or controlled by the Ireland, France, Italy,
The Representative Licensor Spain, Germany, Portugal,
Benelux, South Africa,
- -The Licensing Company Limited Australia and Canada
Licensee - Pacific Brands Non-exclusive for fashion
(UK) Limited and performance outdoor
footwear
Exclusivity for safety
industrial footwear
Licensor - Stride Rite "Sperry, " "Sperry UK 30 November 2004
International Corporation Top-Sider" and associated
Trade Marks for the
Licensee: Pacific Brands UK purpose of the
Distributor's performance
under the agreement.
PART 3 - LICENSES GIVEN BY THE COMPANY TO USE ITS INTELLECTUAL PROPERTY RIGHTS.
page 31
SCHEDULE 5 - SUPERANNUATION FUNDS
1. Royal & Sun alliance, Group Personal Pension Plan (25 employees).
2. Sun Life Flexible Executive Pension Plan for Paul Simpson.
3. Sun Life Flexible Executive Pension Plan for Jillian Helm.
4. Sun Life Flexible Executive Pension Plan for Robert Williams.
page 32
SCHEDULE 6 - CONTRACTS
PART 1 - CONTRACTS
BUSINESS UNIT PARTIES CONTRACT NAME
- ----------------------------------------------------------------------------------------------------------------------
Pacific Brands UK Pacific Brands (UK) & Famous Army Stores Ltd Supply Agreement (5 October 1998)
Stride Rite International Corporation (USA) Ltd & Distributorship Agreement (July 1, 2000)
Pacific Brands (UK)
PART 2 - FOREIGN EXCHANGE CONTRACTS
See attached
page 33
SCHEDULE 7 - GUARANTEES
page 34
SCHEDULE 8 - EMPLOYEES
page 35
SCHEDULE 9 - PLANT AND EQUIPMENT
page 36
SCHEDULE 10 - ASSETS LEASES
page 37
SCHEDULE 11 - PROPERTIES
Unit 1, Stretton Green Distribution Park, Appleton, Warrington, UK.
page 38
SCHEDULE 12 - INTER COMPANY DEBT
page 39
EXECUTED AS AN AGREEMENT:
Signed for and on behalf of
Pacific Dunlop Holdings (Europe) Limited
by its duly authorised Attorney under
Power in the presence of:
/s/ /s/
- ----------------------------------------- -----------------------------------
Witness Attorney
- ----------------------------------------- -----------------------------------
Name (please print) Name (please print)
Signed for and on behalf of
Pacific Dunlop Limited
by its duly authorised Attorney under
Power in the presence of:
/s/ Paul Devereux /s/ Carly Mansell
- ----------------------------------------- -----------------------------------
Witness Attorney
Paul Devereux Carly Mansell
- ----------------------------------------- -----------------------------------
Name (please print) Name (please print)
Signed for and on behalf of:
PB Holdings NV
by its duly authorised Attorneys under
Power in the presence of:
/s/ /s/
- ----------------------------------------- -----------------------------------
Witness Attorney
- ----------------------------------------- -----------------------------------
Name (please print) Name (please print)
/s/ /s/
- ----------------------------------------- -----------------------------------
Witness Attorney
- ----------------------------------------- -----------------------------------
Name (please print) Name (please print)
page 40