EXHIBIT 4.5
SHARE SALE AGREEMENT
PD SHARED SERVICES LSM PTY LTD
PD Shared Services Holdings Pty Ltd
Pacific Dunlop Limited
and
Pacific Brands Holdings Pty Ltd
[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 SJL:AS
LSM share sale agreement
TABLE OF CONTENTS
Clause Page
1 Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 4
1.3 Business Day 5
2 Sale and purchase 5
2.1 Sale of shares 5
2.2 Associated rights 5
3 Purchase Price 6
3.1 Amount 6
3.2 Payment at Completion 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 7
5 Before Completion 8
5.1 Carrying on Business 8
5.2 Treatment of Cash in Hand 8
5.3 Inter Company Debt 9
5.4 31 August Accounts 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 10
9 Competition 10
9.1 Undertaking 10
9.2 Acquisition of interests in competing Businesses 10
9.3 Exclusion from restraint 11
9.4 Related Corporations 11
9.5 Severability 11
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10 Release of guarantees 11
11 Guarantee and indemnity 12
11.1 Guarantee 12
11.2 Indemnity 12
11.3 Extent of guarantee and indemnity 12
11.4 Continuing guarantee and indemnity 12
11.5 Warranties of the Guarantor 12
11.6 Rights 13
12 Employees 13
12.1 Seconded Employees 13
12.2 No limitation 14
13 Head office services 14
14 Restrictions on the Company and Business 14
Schedule 1 - Share Details 15
Schedule 2 - Warranties 16
Part 1 - Buyer's warranties 16
1 Buyer Authorised 16
2 Power to buy 16
3 No legal impediment 16
4 No liquidation or winding-up 16
5 No petition 16
6 No writ of execution 16
7 No receiver or administrator 16
8 Knowledge of Buyer 17
Part 2 - Seller's warranties 18
1 Authorities 18
1.1 Seller authorised 18
1.2 Power to sell 18
1.3 No legal impediment 18
1.4 Corporate power 18
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1.5 Constitution 18
1.6 Corporate name 18
2 Compliance with law 19
2.1 Compliance with law 19
2.2 Authorisations 19
3 Shares and capital 19
3.1 Title 19
3.2 Issued capital 19
3.3 Fully paid 19
3.4 Issue of other securities 19
4 Position since the Accounts Date 19
4.1 Post Accounts Date 19
4.2 [Not used] 20
5 Tangible Assets 20
5.1 Title to assets 20
5.2 Assets not owned 21
5.3 Plant and Equipment 21
6 Encumbrances 21
6.1 Ownership of Shares 21
6.2 Discharges by Completion 21
7 Intellectual Property Rights 21
7.1 Scope 21
7.2 Ownership and use 21
7.3 No third party rights 22
7.4 No infringement 22
7.5 Disputes 22
7.6 Royalties/fees 22
8 Assets Leases 22
8.1 Nature 22
8.2 No default 22
8.3 Validity 22
8.4 Assets Leases used in the Business 22
9 Contracts 23
9.1 Nature of Contracts 23
9.2 No default 23
9.3 Foreign currency 23
9.4 Copies of Contracts 23
9.5 Taxes 23
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10 Properties 24
10.1 Company's Interest 24
10.2 Occupation and Use 24
10.3 No breach 24
10.4 No notices 24
10.5 [Not used] 24
10.6 Property details 24
10.7 Property disclosure 24
10.8 Disputes 25
10.9 [Not used] 25
10.10 Proposed disposal 25
10.11 Property Lease disclosure 25
10.12 Termination notice 25
10.13 Assignment 25
11 Offers outstanding 25
12 Shareholdings 25
13 Memberships 26
14 Employees 26
14.1 List of Employees complete 26
14.2 Incentive schemes 26
14.3 Service agreements 26
14.4 Management agreements 26
14.5 Disputes 26
14.6 Compliance 26
14.7 Compliance 26
14.8 Disclosure 27
15 Superannuation 27
15.1 List of Superannuation Funds 27
15.2 Funding 27
16 Litigation 27
16.1 Not a party to any litigation 27
16.2 No circumstances 27
17 [Not used] 27
18 Solvency 28
18.1 No liquidation or winding-up 28
18.2 No petition 28
18.3 No writ of execution 28
18.4 No receiver or administrator 28
18.5 Payment of debts 28
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18.6 Liquidation 28
18.7 Petition 28
18.8 Writ of execution 28
18.9 Receiver manager 28
19 Insurance 29
19.1 Policies 29
20 Information 29
20.1 Written information 29
20.2 Accuracy 29
21 Business Records 29
22 Taxes and duties 29
22.1 Tax paid 29
22.2 Since Accounts Date 29
22.3 [Not used] 30
22.4 Withholding tax 30
22.5 Records 30
22.6 Returns submitted 30
22.7 Returns accurate 30
22.8 Copies accurate 30
22.9 No disputes 30
23 Seller's knowledge 30
24 Effect of Sale of Shares 31
24.1 Customers/supplier relationships 31
24.2 Effect of sale 31
25 Trade Practices 31
26 Liability under asset and other sale agreements 31
27 Financial position 31
28 Business 32
Schedule 3 - Disclosure Schedule 33
Schedule 4 - Intellectual Property Rights 34
Schedule 5 - Superannuation funds 35
Schedule 6 - Contracts 36
Schedule 7 - Guarantees 37
Schedule 8 - Employees 38
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Schedule 9 - Plant and Equipment 43
Schedule 10 - Assets Leases 44
Schedule 11 - Properties 45
Schedule 12 - Inter Company Debts 46
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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:
31 August Accounts has the meaning given in clause 5.4;
Accenture Group means Accenture Australia Pty Ltd ACN 096 776
895 (Accenture) and its Related Corporations and Accenture's
ultimate parent company Accenture Ltd (a company registered in
Bermuda under Number EC 30090) and that company's subsidiaries
as at 20 September 2001;
Accounts Date means 30 June 2001;
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;
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, to the extent relating to the
Business, the Company's customer lists and supplier lists,
records of Intellectual Property Rights, Assets Leases,
Contracts and Properties;
Buyer means the company specified in part 2 of schedule 1;
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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;
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;
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 by the Company 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;
Foreign Exchange Contracts means all foreign exchange hedging
contracts entered by the Seller which relate exclusively to
the Business which remain current as at Completion, including
but not limited to those contracts listed in part 2 of
schedule 6;
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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 Related Corporations 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;
Pacific Brands Employees means the Employees who are employed
in the conduct of the Pacific Brands Business, as listed in
part 1 of schedule 8;
Partnership means the partnership between PD Shared Services
Pty Ltd ACN 092 830 227 and PD Shared Services Holdings Pty
Ltd ACN 092 811 080, known as the "Novare partnership";
PDL Group means Pacific Dunlop Limited ABN 89 004 085 330 and
its Related Corporations, immediately before Completion;
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;
Property Leases means the leases of real property listed in
schedule 11;
Properties means the properties leased under the Property
Leases;
Purchase Price means the price payable for the Shares under
clause 3.1;
Related Corporation means a "related body corporate" as
defined in the Corporations Act;
Seconded Employees means those Employees who are not employed
in the conduct of the Pacific Brands Business, as listed in
part 2 of schedule 8;
Shares means all the issued shares in the capital of the
Company, as specified in part 5 of schedule 1;
Seller means the company specified in part 1 of schedule 1;
Seller Group Companies has the meaning given to that term in
the Co-ordination Agreement;
Seller's Warranties means the warranties set out in part 2 of
schedule 2;
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 Indemnity Deed has the meaning given to that term in the
Co-ordination Agreement;
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:
(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;
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(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.
2 SALE AND PURCHASE
2.1 SALE OF SHARES
Subject to the Conditions having been fulfilled or waived in
accordance with the Coordination Agreement, the Seller will
sell and the Buyer will buy the Shares 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.
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3 PURCHASE PRICE
3.1 AMOUNT
The Purchase Price payable for the Shares is $1.00, plus any
amount payable under clause 5.2(b).
3.2 PAYMENT AT COMPLETION
The Buyer must pay the Purchase Price to the Seller at
Completion.
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;
(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) the written resignations of all directors and the
secretary of the Company (including a written
acknowledgment that he or she has no Claim against the
Company for loss of office, breach of contract,
redundancy, compensation, payment or repayment of loans or
otherwise, except for payments properly payable as an
employee for accrued salary, holiday pay and long service
leave up to the Completion Date), to be effective on the
appointment of the directors to be appointed at the Board
meetings to be convened under clause 4.3;
(g) any power of attorney or other authority under which the
transfers of the Shares are executed;
(h) 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
(i) all Records, which must be complete and up to date, (by
constructive delivery at the Company's premises).
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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 books of the Company;
(b) appointment of the nominees of the Buyer as directors of
the Company;
(c) alteration of the registered office of the Company to a
registered office nominated by the Buyer; and
(d) 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:
(a) execute the transfers of Shares delivered by the Seller
pursuant to clause 4.2(b); and
(b) deliver to the Seller written consents to act from the
persons nominated by the Buyer as the directors and
secretary of the Company.
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) Subject to clause 4 of the Co-ordination Agreement, 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.
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.
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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 pays 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.
(b) An amount equal to any Cash in Hand held by the Company as
at the Effective Time, will be added to the Purchase
Price, except to the extent that all or part of the Cash
in Hand is an amount required to ensure that the Seller
complies with the warranty contained in paragraph 27 of
the Seller's Warranties.
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5.3 INTER COMPANY DEBT
The Buyer acknowledges that prior to Completion, the Seller
will procure that any Inter Company Debt owing to or by the
Company is satisfied or otherwise extinguished, including but
not limited to those Inter Company Debts listed in schedule
12. The Seller will provide evidence to the Buyer of any such
satisfaction of debt on or prior to Completion.
5.4 31 AUGUST ACCOUNTS
As soon as possible after they are made available to the
Seller, the Seller will deliver to the Buyer a copy of the
statutory accounts of the Company, such statutory accounts
comprising the profit and loss account for the Company for the
year ended 31 August 2001 and the balance sheet of the Company
as at the same date, each audited by the auditors of the
Guarantor (31 August Accounts).
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.
(c) Subject to clauses 7(d) and 7(e), the Seller agrees and
undertakes to indemnify on demand and hold harmless the
Buyer from and against any and all direct Losses
(including in respect of any Employee) incurred by the
Buyer or its Related Corporations or the Company or for
which any of them may become liable solely as a result of
any act or omission by (or on behalf of) or claim against
the Company before Completion or the conduct of the
Business at any time prior to Completion.
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(d) The Seller will only be liable to the Buyer under clause
7(c) to the extent that the Losses claimed cause or
increase the extent of a breach of the warranty given in
paragraph 27 of the Seller's Warranties, had those Losses
been taken into account in the preparation of accounts for
the Company at Completion as contemplated by paragraph 27
of the Seller's Warranties.
(e) The Seller is not liable to the Buyer under clause 7(c) if
the Buyer is entitled to make a claim under the Tax
Indemnity Deed in respect of the Losses sought to be
recovered, in which case the Buyer may only claim in
respect of those Losses under the Tax Indemnity Deed.
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.
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 Australia:
(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 Related
Corporations from acquiring an interest, directly or
indirectly, in a business in competition with the Business in
the area referred to in that clause if:
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(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 25%
of the value of the acquisition taken as a whole; and
(c) the Seller or the relevant Related Corporation 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
Related Corporations 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 10% of the issued share capital of a
company listed on a recognised Stock Exchange.
9.4 RELATED CORPORATIONS
The Buyer agrees that the provisions of this clause 9 only
apply to the Related Corporations of the Seller for so long as
those entities remain Related Corporations 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
unenforceability 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 Related Corporation 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 Related Corporation of
the Seller pays, suffers, incurs, or is liable for
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LSM share sale agreement
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.
(c) [Not used]
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:
(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:
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LSM share sale agreement
(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.
12 EMPLOYEES
12.1 SECONDED EMPLOYEES
(a) The Buyer will procure the secondment of the Seconded
Employees to the Partnership (Secondments) for the period
commencing on Completion and ending up to 3 months after
Completion (Secondment Period).
(b) At any time on or before the end of the Secondment Period
the PDL Group or any third party customer of the
Partnership may offer employment to a Seconded Employee.
If a Seconded Employee accepts employment with the PDL
Group or such third party, then the Buyer will procure the
release of that Seconded Employee from employment with the
Company.
(c) Unless the Buyer elects to retain the employment of a
Seconded Employee by the Company after the end of the
Secondment Period, then the Buyer must, unless the parties
otherwise agree, procure the termination of the employment
of that Seconded Employee with effect on and from the end
of the Secondment Period. The Buyer shall procure that the
Company terminates the employment of the Seconded
Employees upon the terms and conditions advised by the
Seller and shall make such payments to the Seconded
Employees on termination as the Seller directs.
(d) The Seller is responsible for, and indemnifies and holds
the Buyer harmless from and against, all costs and
expenses (net of tax) associated with the employment of
the Seconded Employees accruing after Completion,
including without limitation:
(1) all costs of the Company in remunerating the Seconded
Employees;
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LSM share sale agreement
(2) all other employee entitlements accruing to the
Seconded Employees during the Secondment Period,
including but not limited to superannuation
contributions and all long service, sick leave and
annual leave entitlements;
(3) all costs of the Company as a result of terminating
the employment of Seconded Employees in accordance
with clause 12.1(c), except to the extent that such
costs relate to the period before Completion.
(e) For the avoidance of doubt, if a Seconded Employee is
retained in employment by the Company after the Secondment
Period, the Seller has no further responsibility for the
costs associated with the employment of, or termination
of, that Employee.
12.2 NO LIMITATION
The limitations on claims applying to the Buyer under clause 7
of the Co-ordination Agreement do not apply to any Claim made
by the Buyer under the indemnities given by the Seller under
this clause 13 or clause 7(c).
13 HEAD OFFICE SERVICES
(a) The Buyer acknowledges that, at Completion, certain
Pacific Brands Employees are engaged in providing services
to the PDL Group (Head Office Services).
(b) The Buyer must ensure that for 3 months following
Completion, the Head Office Services are provided to the
Guarantor at the pricing, to the standard of service and
with the level of resources as existed immediately prior
to Completion.
14 RESTRICTIONS ON THE COMPANY AND BUSINESS
The Buyer will not and will procure that the Company does not,
after Completion:
(a) use:
(1) the services of the Employees; or
(2) any tangible or intangible assets owned by the
Company or previously used by the Partnership for the
Pacific Brands Business,
for the purposes of providing outsourced services in
competition with any member of the Accenture Group;
(b) sell the Company or the Business to any third party
competitor of any member of the Accenture Group.
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SCHEDULE 1 - SHARE DETAILS
PART 1 - SELLER
PD Shared Services Holdings Pty Ltd ABN 75 092 811 080 of Level 3, 678
Victoria Street, Richmond, Victoria 3121
PART 2 - BUYER
Pacific Brands Holdings Pty Ltd ACN 098 704 646, c/- Minter Ellison, 88
Phillip Street, Sydney New South Wales 2000
PART 3 - GUARANTOR
Pacific Dunlop Limited ABN 89 004 085 330 of Level 3, 678 Victoria
Street, Richmond, Victoria 3121
PART 4 - COMPANY
PD Shared Services LSM Pty Ltd ABN 77 093 040 745 of Level 3, 678
Victoria Street, Richmond, Victoria 3121
PART 5 - SHARES
100 ordinary shares
PART 6 - BUSINESS
The provision of personnel to the Partnership to perform various
functions for PDL Group and customers of the PDL Group.
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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:
(1) each law, regulation, Authorisation, ruling, judgment, order or
decree of any Governmental Agency;
(2) the constitution or other constituent documents of the Buyer; and
(3) any Encumbrance or document which is binding on the Buyer.
4 NO LIQUIDATION OR WINDING-UP
The Buyer has not gone into liquidation nor passed a winding-up
resolution nor received or published a notice under sections 601AA or
601AB of the Corporations Act.
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.
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LSM share sale agreement
8 KNOWLEDGE OF BUYER
Neither the Buyer nor any 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.
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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 it 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 constitution or other constituent documents 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).
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LSM share sale agreement
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 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;
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LSM share sale agreement
(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;
(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 constitution,
(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 [NOT USED]
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 ;
(b) the absolute property of the Company free of all
Encumbrances, other than the Tangible Assets subject to
the Assets Leases.
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LSM share sale agreement
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.
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.
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LSM share sale agreement
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.
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.
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LSM share sale agreement
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 which are expected to result in expenditure
by the Company of more than $1,000,000;
(f) are distribution or agency agreements:
(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.
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LSM share sale agreement
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 Leased 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.
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LSM share sale agreement
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.
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 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.
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LSM share sale agreement
13 MEMBERSHIPS
The Company is not a member of any joint venture, partnership
or unincorporated association (other than a recognised trade
association).
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.
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LSM share sale agreement
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.
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]
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LSM share sale agreement
18 SOLVENCY
18.1 NO LIQUIDATION OR WINDING-UP
The Company has not gone into liquidation under Corporations
Act nor been removed from the 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.
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 Corporations
Act; and
(c) is not subject to voluntary administration under the
Corporations Act.
18.6 LIQUIDATION
The Seller has not gone into liquidation under the
Corporations Act nor been removed from the 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.
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LSM share sale agreement
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;
(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.
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LSM share sale agreement
22.3 [NOT USED]
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.
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.
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LSM share sale agreement
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.
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 Trade Practices Act in
Australia.
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.
27 FINANCIAL POSITION
If a balance sheet of the Company, prepared on a consistent
basis with the principles used to prepare the 31 August
Accounts, was produced at Completion, the net asset position
(excluding any Cash In Hand included as part of the Purchase
Price under clause 5.2(b)) of the Company would be positive.
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LSM share sale agreement
28 BUSINESS
Since incorporation, the Company has not carried on any
business other than the Business. For the avoidance of doubt,
the Company has not incurred any liabilities or obligations
other than in the ordinary course of business of the Business.
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LSM share sale agreement
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
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LSM share sale agreement
SCHEDULE 4 - INTELLECTUAL PROPERTY RIGHTS
Part 1 - Intellectual Property Rights owned by the Company
Part 2 - Licenses to the Company to use Intellectual Property Rights
Part 3 - Licenses given by the Company to use its Intellectual Property Rights
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LSM share sale agreement
SCHEDULE 5 - SUPERANNUATION FUNDS
Accenture Employees Superannuation Fund
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LSM share sale agreement
SCHEDULE 6 - CONTRACTS
PART 1 - CONTRACTS
Time and materials service agreement between the Company and
Dialog Pty Ltd dated 17 October 2001.
PART 2 - FOREIGN EXCHANGE CONTRACTS
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LSM share sale agreement
SCHEDULE 7 - GUARANTEES
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LSM share sale agreement
SCHEDULE 8 - EMPLOYEES
PART 1 - PACIFIC BRANDS EMPLOYEES
1 Burke, Anne
2 Clarke, Heather
3 Craggs, Penelope
4 Daley, Linda
5 Davies, Lisa
6 Del Rosario, Luis
7 Ellul, Gail
8 Ely, Lois
9 Gabler, Otto
10 Jackson, Claudette
11 Kusnadi, Surja
12 Labbett, Pauline
13 Lalor, Robin
14 Lill, Christine
15 Lim, Eng
16 Loos, Denis
17 Lorkovic, Lily
18 Lucich, Thomas
19 Luton, Elizabeth
20 Morris, Linda
21 Nacua, Nida
22 Parsons, Patricia
23 Pavin, Anna
24 Perry, Angela
25 Poveda, Bernarda
26 Robinson, Belinda
27 Sharma, Praveen
28 Stamboulis, Marjorie
29 Sumcad, Josephine
30 Taylor, Marilyn
31 Weeks, Belinda
32 Weldrake, Paulette
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LSM share sale agreement
33 Whatson, Julie
34 Zakarian, Azatue
35 Alfaiate, Sonia
36 Ambalavanar, Kiruba
37 Andrews, Rhonda
38 Austen, Russell
39 Ball, Sheena
40 Bennetts, Victor
41 Berlouis, Harry
42 Bitzikopoulos, Emma
43 Boulat, Janna
44 Brown, Timothy
45 Buckland, Simon
46 Camilleri, Andrew
47 Carmody, Annette
48 Carter, Flora
49 Catalano, Fiona
50 Chia, Clifford
51 Clissold, Karen
52 Coker, Paul
53 Comber, Gregory
54 Cronin, Caroline
55 Csakvari, Naomi
56 Curry, Peter
57 Daniele, Peter
58 Darmody, Carolyn
59 Davies, Sean
60 Dean, Maureen
61 Driessen, Judith
62 Dwyer, Andrew
63 Elford, Debbie
64 Fletcher, Ian
65 Fox, Kylie
66 Galgey, Patricia
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LSM share sale agreement
67 Geary, Alicia
68 Graham, Stephen
69 Greco, Mara
70 Guy, Carmel
71 Halvadakis, Sylvana
72 Hanley, Wayne
73 Hawthorne, Jarrod
74 Huang, Josephine
75 Hudson, Diane
76 Huynh, Diem
77 Jansen, Sharon
78 Jilich, Maurus
79 Johnston, Elizabeth
80 Kaiser, Margaret
81 Kerger, Mark
82 Kickert, Vanessa
83 Kontra, Andrew
84 Koresis, Chrisostonos
85 Lee, Richard
86 Lillycrapp, Ruth
87 Logiudice, Julie
88 Macleod, Sheena
89 Macnab, Ron
90 Mahon, Jennifer
91 Mandaliti, Antonio
92 Marks, Glenn
93 Marston, Mark
94 Martin, Sandy
95 McDonald, Alice
96 McKay, Peter
97 McKinnon, Andrew
98 McNeill, Murray
99 Meco, Emidia
100 Millar, Melinda
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LSM share sale agreement
101 Monk, Sharon
102 Murray, Louise
103 O'Malley, Louise
104 O'Reardon, David
105 Oh-Williams, Anny
106 Oliver, Beverley
107 Papatheodorou, Harry
108 Papworth, Serena
109 Parisi, Lorraine
110 Parker, Marilyn
111 Paten, Gregory
112 Pengelly, Stephen
113 Pennington, John
114 Perna, Irene
115 Perrusio, Marianna
116 Pickering, Raymond
117 Pickett, Catherine
118 Polini, Penny
119 Poon, Bill
120 Rapke, Damon
121 Rathgen, Scott
122 Ream, Mina
123 Reynolds, Matthew
124 Roberts, Michaela
125 Schouteten, Jason
126 Shepherd, Sheridan
127 Stamatakis, Marianne
128 Starkowski, John
129 Stenzel, Renata
130 Stewart, Malcolm
131 Stirling, Sylvia
132 Stone, Karen
133 Swift, Kathleen
134 Tadross, Marianne
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LSM share sale agreement
135 Tainton-Smith, Lisa
136 Tan, Tjai
137 Taylor, Gregory
138 Thackray, David
139 Thompson, Vanessa
140 Thorp, Karen
141 Veselinovski, Stojan
142 Vong, Karen
143 Walters, Andree
144 Ward, Kerry
145 Williams, Eva
146 Willits, Barbara
147 Wong, Linda
148 Zheng, Jianxue
PART 2 - SECONDED EMPLOYEES
1 Brunner, Shane
2 Capstick, Timothy
3 Flynn, Lisa
4 Francis, Peter
5 Harvey, Andrew
6 Height, Roslyn
7 Henderson, Maree
8 Hill, Christopher
9 Jungwirth, Stanley
10 Lingwood-Smith,Grant
11 Naish, Phil
12 Norman, Peter
13 Sullivan, Jamie
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LSM share sale agreement
SCHEDULE 9 - PLANT AND EQUIPMENT
1 Office fit-out and partitions located at Richmond, Victoria office
(Level 1, Building 10, 658 Church Street, Richmond, Victoria)
2 Office fit-out and partitions located at Wentworthville, New South
Wales office (190 Dunmore Street, Wentworthville, New South Wales)
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LSM share sale agreement
SCHEDULE 10 - ASSETS LEASES
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LSM share sale agreement
SCHEDULE 11 - PROPERTIES
Part Level 1, Building 10, 658 Church Street, Richmond, Victoria 3121,
leased by the Company under the Sub-Lease between Australand Wholesale
Investments Limited, Pacific Dunlop Limited and the Company.
Arrangement between the Company and Bonds Industries Pty Ltd in respect
of the premises leased by the Company at 190 Dunmore Street,
Wentworthville, New South Wales 2145.
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LSM share sale agreement
SCHEDULE 12 - INTER COMPANY DEBTS
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LSM share sale agreement
EXECUTED AS AN AGREEMENT:
Signed for and on behalf of
PD Shared Services LSM Pty Ltd
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
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 sealed and delivered by
Pacific Brands Holdings Pty Ltd
in the presence of:
/s/ Andrew Cummins /s/ Justin Ryan
- --------------------------------------- -------------------------------------
Director Director
Andrew Cummins Justin Ryan
- --------------------------------------- -------------------------------------
Name (please print) Name (please print)
page 47