Exhibit 10.54
Share Sale Agreement
Dated September 26, 2004
The parties listed in Schedule 1 ("Seller")
Ingram Micro Asia Holdings Inc. ("Buyer")
Ingram Micro Inc. ("Guarantor")
Project Phoenix - Share Sale Agreement
Contents
Details 1
General terms 3
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1 Sale and purchase of Shares 3
1.1 Sale and purchase 3
1.2 Free from Encumbrance 3
1.3 More than one seller 3
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2 Purchase Price and funds flow 4
2.1 Purchase Price 4
2.2 Allocation of Purchase Price 4
2.3 Funds flow 5
2.4 Remaining Debt 5
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3 Conditions Precedent 5
3.1 Conditions Precedent 5
3.2 Reasonable endeavours 6
3.3 Termination of agreement 6
3.4 Effect of termination 6
3.5 Failure of GAAP condition 7
3.6 Non-solicitation 7
3.7 Exception 7
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4 Completion 8
4.1 Time and place of Completion 8
4.2 Seller's obligations 8
4.3 Items to be delivered on Completion by Buyer 9
4.4 Payment on Completion 10
4.5 Interdependent 10
4.6 Title 10
4.7 Records 10
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5 Payment of Purchase Price and Escrow Amount 10
5.1 Payments on Completion 10
5.2 Stocktake 11
5.3 Draft Adjustment Statement 11
5.4 Reasonable endeavours 11
5.5 Contents of Adjustment Statement 11
5.6 Adjustment Statement Accounting Policies 12
5.7 Audit 12
5.8 Auditor's access 12
5.9 Access to Auditor and papers 12
5.10 Auditor's costs 13
5.11 Consultation on final Adjustment Statement 13
5.12 Adjustment Amount 13
5.13 Limitation on Adjustment Amount disputes 13
5.14 Adjustment Amount disputes 14
5.15 Payment of Adjustment Amount 15
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5.16 Method of payment 16
5.17 Notification by Seller Representative 16
5.18 Escrow Account 16
5.19 Payments from Escrow Account 16
5.20 Interest on Escrow Account Balance 17
5.21 No Buyer Claims Or Actions by the Escrow Amount Payment
Date 17
5.22 Buyer Claims or Actions by the Escrow Amount Payment
Date 17
5.23 Unagreed Claims notice 19
5.24 Resolution of Claims 19
5.25 Interest accruing to Buyer 19
5.26 Sole recourse for General Claims 19
5.27 Buyer Claims 20
5.28 Seller Representative - dealing with Purchase Price on behalf
of Sellers 20
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6 Conduct of business pending Completion 22
6.1 Conduct of business 22
6.2 Access and assistance 23
6.3 Consultation rights 24
6.4 Management accounts and other documents 24
6.5 Damages sole remedy 24
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7 Post-Completion matters 24
7.1 Exclusion of directors and officers from liability 24
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8 Warranties and representations 24
8.1 Accuracy 24
8.2 Separate Warranties 25
8.3 Matters Disclosed 25
8.4 Buyer's warranties 25
8.5 Buyer's acknowledgment 26
8.6 Notification 26
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9 Limitations of Liability 26
9.1 Time limit on Claims 26
9.2 Minimum amount of Claim 27
9.3 Maximum liability 27
9.4 Notice of Claims 27
9.5 Third party claims 28
9.6 Seller to consider Claims 28
9.7 Seller to defend Claim 28
9.8 Seller not liable 29
9.9 Reduction in Purchase Price 30
9.10 Exclusion of consequential liability 30
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10 Buyer's warranties 30
10.1 Buyer's warranties 30
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11 Default 31
11.1 Failure by a party to Complete 31
11.2 Specific performance or termination 31
11.3 Termination of agreement 31
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12 Confidential Information 31
12.1 Confidential Information 31
12.2 Disclosure of Confidential Information 31
12.3 Use of Confidential Information 32
12.4 Excluded Information 32
12.5 Delivery of materials 32
12.6 Use and disclosure of Business related Confidential
Information by Buyer from Completion 32
12.7 Disclosure to other potential buyers 32
12.8 Disclosure of this agreement 32
12.9 Disclosure prior to the date of this agreement 33
12.10 Enforcement by the Company 33
12.11 Privacy 33
12.12 Application of privacy clause 33
12.13 Use of Personal Information by Seller after Completion 34
12.14 Use of Business Information by Seller after Completion 34
12.15 Survival of termination 34
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13 Guarantee and Indemnity 34
13.1 Consideration 34
13.2 Guarantee 34
13.3 Indemnity 35
13.4 Extent of guarantee and indemnity 35
13.5 No merger 35
13.6 Rights of the Seller are protected 35
13.7 Guarantor's rights are suspended 36
13.8 Reinstatement of rights 36
13.9 Costs 36
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14 Seller as trustee 37
14.1 Application 37
14.2 Trustee acknowledgment 37
14.3 Trustee representations and warranties 37
14.4 Limited capacity 37
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15 Announcements 38
15.1 Public announcements 38
15.2 Public announcements required by law 38
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16 Costs 38
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17 Notices 38
17.1 Form 38
17.2 Delivery 39
17.3 When effective 40
17.4 Receipt - post 40
17.5 Receipt - fax 40
17.6 Receipt - general 40
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18 Representatives 40
18.1 Appointment of Management Seller Representative 40
18.2 Reliance by Buyer on Management Seller Representative 40
18.3 Authority of Management Seller Representative 40
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18.4 Reliance by Buyer on Seller Representative 40
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19 Assignment 41
19.1 No assignment 41
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20 Miscellaneous 41
20.1 Discretion in exercising rights 41
20.2 Partial exercising of rights 41
20.3 No liability for Loss 41
20.4 Approvals and consents 42
20.5 Conflict of interest 42
20.6 Remedies cumulative 42
20.7 Rights and obligations are unaffected 42
20.8 Variation and waiver 42
20.9 No merger 42
20.10 Indemnities 42
20.11 Further steps 42
20.12 Time of the essence 43
20.13 Entire agreement 43
20.14 Construction 43
20.15 Severability 43
20.16 SEC Compliance 43
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21 Non-compete 43
21.1 Non-competition or interference 43
21.2 No Share Entitlements 44
21.3 Exceptions to non-competition 44
21.4 Severance 45
21.5 Independent legal advice 45
21.6 Damages not an adequate remedy 45
21.7 CVC Asia Pacific Limited 45
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22 Governing law, jurisdiction and service of process 46
22.1 Governing law 46
22.2 Jurisdiction 46
22.3 Serving documents 46
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23 Counterparts 46
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24 Supervening legislation 46
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25 Interpretation 47
25.1 Definitions 47
25.2 References to certain general terms 59
25.3 Headings 61
Schedule 1 - Seller details 62
Schedule 2 - Shares 65
Schedule 3 - Form of officer release 69
Schedule 4 - Company and Subsidiaries 81
Schedule 5 - Warranties 91
Schedule 6 - Adjustment Statement 100
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Schedule 7 - Adjustment Statement Accounting Policies 102
Schedule 8 - Auditor's scope of work 104
Schedule 9 - Public Register Information 110
Signing page 114
Annexure A - [omitted]
Annexure B - [omitted]
Annexure C - [omitted]
Annexure D - [omitted]
Letter
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Project Phoenix - Share Sale Agreement
Details
Interpretation - Definitions are at the end of the General terms
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Parties Seller, Buyer and Guarantor
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Seller Name The persons listed in Schedule 1 ("Seller
details")
Address See Schedule 1
Fax See Schedule 1
Attention See Schedule 1
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Buyer Name Ingram Micro Asia Holdings Inc.
Incorporated in A corporation incorporated under the laws
of the State of California, USA
Address 1600E. St Andrew Place, P. O. Box 25125,
Santa Ana, CA 92799-5125, USA
Fax +1 714 566 9370
Attention General Counsel
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Guarantor Name Ingram Micro Inc.
Incorporated in Delaware
Address 1600E. St Andrew Place, P. O. Box 25125,
Santa Ana, CA 92799-5125, USA
Fax +1 714 566 9370
Attention General Counsel
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Recitals A Techpac Holdings Limited is a company
incorporated in Bermuda and has its
registered office at Clarendon House, 2
Church Street, Hamilton HM11, Bermuda
("Company").
B The Seller is the registered holder and
beneficial owner of the number and class of
Shares in the capital of the Company as set
out in Schedule 2.
C The Seller has agreed to sell, and the Buyer
has agreed to buy, the Shares on the terms of
this agreement.
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D The Guarantor has agreed to guarantee the
obligations of the Buyer and acknowledges
incurring obligations and giving rights under
this agreement for valuable consideration
received from the Seller.
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Governing law New South Wales, Australia
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Date of See Signing page
agreement
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Project Phoenix - Share Sale Agreement
General terms
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1 Sale and purchase of Shares
1.1 Sale and purchase
The Seller agrees to sell the Shares to the Buyer and the Buyer
agrees to buy the Shares from the Seller, on the terms and
conditions of this agreement.
1.2 Free from Encumbrance
The Shares must be transferred free from any Encumbrance and with
all rights, including dividend rights, attached or accruing to them
whether before or after Completion.
1.3 More than one seller
(a) (references to "Seller" and "Shares") References to the "Seller"
means each of those persons and references to "Shares" means, in
relation to each person, the Shares in the Company described
opposite that person's name in Schedule 2.
(b) (simultaneous completion) The Buyer is not obliged to Complete
unless each Seller Completes simultaneously.
(c) (waiver of pre-emption rights) Each Seller waives in favour of
the Buyer any pre-emption or other rights which it has now or
might otherwise have in respect of any of the Shares held by
each other Seller.
(d) (Liability) Subject to clause 9.3 ("Maximum Liability") and
clause 1.3(e), the Liability of each Seller under this agreement
is several (and not joint) in their Respective Proportions
(other than in respect of a breach of a Personal Warranty) and
no Seller is liable for and subject to paragraph (e), neither
the Buyer nor the Guarantor may make a claim against a Seller in
connection with this agreement or the transactions contemplated
by it in excess of the relevant Seller's Respective Proportion
of that Liability.
(e) (Personal Warranties) Each Seller is liable for any breach of a
Personal Warranty given by that Seller. To avoid doubt, and
without prejudice to clause 9.3, each Seller's Liability in
respect of its Personal Warranties is limited to that Seller's
Respective Proportion of the Purchase Price. No Seller is liable
for and neither the Buyer nor the Guarantor may make a claim
against a Seller for breach of a Personal Warranty given by any
other Seller.
(f) (payments) Other than as provided for in this agreement, any
payment to be made by the Buyer to the Seller must be paid to
the Seller Representative which payment will constitute the full
and
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proper discharge of any and all obligations of the Buyer to make
such payment to a Seller.
(g) (payments by Seller) Where the Seller has an obligation to pay
an amount, each Seller's obligation is to pay that Seller's
Respective Proportion of that amount.
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2 Purchase Price and funds flow
2.1 Purchase Price
The aggregate price payable for the Shares is the sum of:
(a) an amount equal to the Goodwill Amount; and
(b) an amount equal to the Net Tangible Assets at Adjustment
Statement Date; and
(c) an amount equal to the Notional Interest Amount.
2.2 Allocation of Purchase Price
The Purchase Price is to be paid and allocated subject to clause 5
in the following manner:
(a) first, toward the price payable for each Preference Share which
is the sum of:
(i) $1; and
(ii) the aggregate amount of accrued but unpaid dividend on that
Preference Share as at the Completion Date.
(b) second, in the case of Sellers who are entitled to the benefit
of "subordinated shareholder loans" (as referred to in Schedule
7), the aggregate amount of those "subordinated shareholder
loans" to those Sellers in proportion to their entitlement; and
(c) third, toward the aggregate price payable for the Ordinary
Shares ("Ordinary Shares Purchase Price"), which is the Purchase
Price less the aggregate price payable for all of the Preference
Shares calculated under clause 2.2(a) and less the amount
payable under clause 2.2(b). The price payable for each Ordinary
Share is an amount equal to the Ordinary Shares Purchase Price
divided by the total number of Ordinary Shares.
The Sellers acknowledge in favour of the Seller Representative that
their entitlement as against the Seller Representative to payment on
account of the Ordinary Share Purchase Price is reduced subject to
and as required by clause 5.1(b) and clause 5.18 ("Escrow Account")
and clause 5.28(a) ("Net Tangible Asset adjustment - retention") and
5.28(c) ("Transaction Costs").
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2.3 Funds flow
(a) The purpose of this clause is to explain the funds which the
Buyer will be required to provide pursuant to the terms of this
agreement for the acquisition of the Shares.
(b) The total funds required are:
(i) an amount equal to the Purchase Price; and
(ii) an amount equal to the Mezzanine Debt Amount.
(c) At Completion:
(i) the Buyer will pay the Estimated Purchase Price and the
Notional Interest Amount to the Seller in the manner
required by clause 5.1 ("Payments on Completion"); and
(ii) the Mezzanine Debt Amount will be settled in the manner
required by clause 5.1 ("Payments on Completion").
(d) The Purchase Price will be determined upon agreement or
determination of the Adjustment Statement as contemplated in
clause 5 ("Payment of Purchase Price and Escrow Amount").
2.4 Remaining Debt
To avoid doubt, from Completion, the relevant Group Companies (and
indirectly the Buyer through its acquisition of the Shares) will
remain responsible for and liable to discharge the Remaining Debt.
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3 Conditions Precedent
3.1 Conditions Precedent
Completion is conditional on and only on:
(a) (FIRB approval):
(i) the Treasurer (or his delegate) providing written advice
without conditions or on conditions acceptable to the Buyer
(acting reasonably) that there are no objections under
Australia's foreign investment policy to the proposed
acquisition by the Buyer of the Shares; or
(ii) following notice of the proposed acquisition of the Shares
having been given by the Buyer to the Treasurer under the
Foreign Acquisitions and Takeovers Act 1975 (Cwlth), the
Treasurer ceases to be empowered to make any order under
Part II of that Act because of lapse of time;
(b) (Mauritian FSC approval) consent without conditions or on
conditions acceptable to the Buyer (acting reasonably) having
been given to the proposed acquisition by the Buyer of the
Shares by the Financial Services Commission of Mauritius;
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(c) (Bermuda Monetary Authority approval) consent without conditions
or on conditions acceptable to the Buyer (acting reasonably)
having been given to the proposed acquisition by the Buyer of
the Shares by the Bermuda Monetary Authority; and
(d) (US GAAP Financial Statements) the delivery by the Seller
Representative to the Buyer of US GAAP Financial Statements.
3.2 Reasonable endeavours
(a) The Buyer and the Guarantor must each use its reasonable
endeavours (excluding the payment of any money or the incurring
of any cost or Liability (other than filing and other fees
associated with obtaining the approvals)) to obtain the
fulfilment of the Conditions Precedent as soon as reasonably
practicable after the date of this agreement.
(b) The Seller must use its reasonable endeavours to assist the
Buyer in obtaining the fulfilment of the Conditions Precedent if
reasonably requested by the Buyer.
(c) The parties must keep each other informed of any circumstances
which may result in any Condition Precedent not being satisfied
in accordance with its terms.
(d) The parties must each use their reasonable endeavours
(including, in respect of the Seller, procuring the Group
provides reasonable assistance and access to papers,
information, records and personnel) to facilitate the
finalisation of the US GAAP Financial Statements as soon as
reasonably practicable after the date of this agreement and the
Seller Representative must deliver the US GAAP Accounts to the
Buyer immediately upon their finalisation.
3.3 Termination of agreement
(a) The Conditions Precedent are inserted for the benefit of the
Buyer and the Seller.
(b) If any of the Conditions Precedent are not fulfilled by 31
December 2004 or any later date agreed by the Seller
Representative and the Buyer and have not been waived by the
Seller Representative and the Buyer then this agreement will
automatically terminate without any requirement by the Seller or
the Buyer to provide any notice of termination.
3.4 Effect of termination
If this agreement is terminated under clause 3.3 ("Termination of
agreement"), or clause 11.3 ("Termination of agreement") then, in
addition to any other rights, powers or remedies provided by Law:
(a) each party is released from its obligations under this agreement
other than in relation to clauses 16 ("Costs") and 12
("Confidential Information");
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(b) each party retains the rights it has against any other party in
respect of any breach or Claim that has arisen before
termination; and
(c) the Buyer must return to the Seller or destroy all documents and
other materials in any medium in its possession, power or
control which contain any information relating to the Company
and its Subsidiaries, including the Records.
3.5 Failure of GAAP condition
(a) In addition to the Seller's rights (if any) under clause 3.4,
where the condition in clause 3.1(d) is not fulfilled on 31
December 2004, the Guarantor must on that day ("due date") pay
or procure payment of $8.351 million ("Termination Amount") to
the Seller Representative. The Seller Representative must
nominate the account into which the Termination Amount is to be
paid by 29 December 2004.
(b) If the Guarantor does not pay the Termination Amount in full by
the due date, interest accrues on the Termination Amount or any
unpaid portion daily (calculated on the basis of a 365 day year)
at the rate of 9% per annum and compounds monthly from the due
date until the date the Termination Amount together with
interest thereon calculated in accordance with this clause 3.5
is paid in full.
(c) To avoid doubt, this clause 3.5 survives termination of this
agreement under clause 3.3.
3.6 Non-solicitation
If this agreement is terminated, for a period of 12 months from the
date of termination of this agreement:
(a) the Buyer will procure that neither it nor any other entity
Controlled by the Guarantor of it directly or indirectly
solicits without the Seller Representative's consent the
employment of, or the engagement for the provision of services
of, any person currently employed by a Group Company in a senior
management position in the Group as a whole; and
(b) each Seller will procure (insofar as it is able) that neither it
nor any Group Company directly or indirectly solicits without
the Buyer's consent the employment of, or the engagement for the
provision of services of, any person currently employed by the
Buyer or any entity Controlled by the Guarantor in a senior
management position in the group comprising the Guarantor and
the entities it Controls.
3.7 Exception
The restriction in clause 3.6 ("Non-solicitation") does not apply
where such an employee responds to a bona fide advertising or
recruiting campaign which is targeted to a wide audience of
potential applicants or initiates employment discussions themselves.
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4 Completion
4.1 Time and place of Completion
Completion will take place in Bermuda at the registered office of
the Company at 11:00 am on the Scheduled Completion Date (or any
other time and place agreed between the Seller Representative and
the Buyer).
4.2 Seller's obligations
At Completion, the Seller must give to the Buyer:
(a) (transfers and Share certificates) duly executed transfers in
favour of the Buyer (or as it may direct) of all the Shares and
the share certificates for the Shares;
(b) (transfer documents for Subsidiary shares) duly executed
transfer or other relevant documents in favour of the person(s)
nominated by the Buyer to the Seller Representative not less
than 5 Business Days prior to the Completion Date from those
persons (other than any Group Company) holding shares in any
Subsidiary;
(c) (records and common seal) the Records and the common seal (if
any) of the Company and each Subsidiary which will be deemed
delivered by leaving them within the possession or control of
the Company or a Subsidiary;
(d) (resignations) written resignations of the Retiring Directors
and Retiring Secretaries of the Company and each Subsidiary
(except as agreed between the Buyer and the Seller
Representative) each acknowledging that they have no claim
whatsoever including for compensation, reimbursement or
remuneration against the relevant Group Company for loss of
office or acting in such office;
(e) (directors resolution of the Company) a certified copy of a
resolution of directors of the Company and/or where required, a
resolution of the shareholders of the Company, resolving that:
(i) the transfer of the Shares will be registered;
(ii) the relevant Incoming Directors be appointed to the board
of directors of the Company (subject to receiving any
necessary consents to act), and the resignation of the
Retiring Directors from the board be accepted, all with
effect from Completion, but so that a properly constituted
board of directors is in existence at all times; and
(iii) the relevant Incoming Secretaries be appointed to the
position of the company secretary of the Company and the
resignation of the Retiring Secretaries be accepted, all
with effect from Completion;
(f) (directors resolution of each relevant Subsidiary) a certified
copy of a resolution of directors of each relevant Subsidiary
and/or where
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required, a resolution of the shareholder(s) of the relevant
Subsidiary resolving that:
(i) the relevant Incoming Directors be appointed to the board of
directors of the relevant Subsidiary, and the resignation of
the Retiring Directors from the board be accepted, all with
effect from Completion, but so that a properly constituted
board of directors is in existence at all times;
(ii) the relevant Incoming Secretaries be appointed to the
position of company secretary of the relevant Subsidiary and
the resignation of the Retiring Secretaries be accepted, all
with effect from Completion;
(g) (release in favour of former directors and officers) a release
executed by the Company and each Subsidiary (other than Tech
Pacific Holdings Sarl and TP Holdings NV) in favour of each of
the pre-Completion directors, officers and secretaries in the
form set out in Schedule 3 ("Form of officer release") or in the
form otherwise agreed in writing by the Seller Representative
and the Buyer;
(h) (Shareholder releases) a certified copy of a resolution of the
shareholders of each of Tech Pacific Holdings Sarl and TP
Holdings NV releasing each of the pre-Completion directors,
officers and secretaries from Liabilities to Tech Pacific
Holdings Sarl or TP Holdings NV (as applicable) for acts or
omissions by them as directors, officers or secretaries (as
applicable) other than acts or omissions arising from the wilful
misconduct, gross negligence or dishonesty of that director,
officer or secretary;
(i) (shareholders agreement termination) the Shareholders Agreement
Termination Deed duly executed by or on behalf of all parties to
it;
(j) (Escrow Deed) a counterpart of the Escrow Deed duly executed by
the Seller Representative; and
(k) (Certification of Warranties) a certificate signed by the Seller
Representative certifying that, so far as the Seller is aware
and except as disclosed in the certificate, as at Completion,
the Seller is not in breach of clause 6.1 or any of the
Warranties in section 4.2 of Schedule 5.
Despite clause 20.6 the Buyer's sole remedy and each Seller's sole
Liability in respect of the certificate in or any breach of clause
4.2(k) is damages limited and calculated with respect to that Seller
in accordance with this agreement.
4.3 Items to be delivered on Completion by Buyer
At Completion, the Buyer must give to the Seller Representative:
(a) (consents) executed consents to act by the Incoming Directors
and Incoming Secretaries where required in relation to the
Company or a Subsidiary; and
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(b) (Escrow Deed) a counterpart of the Escrow Deed duly executed by
the Buyer and the Guarantor.
4.4 Payment on Completion
At Completion, the Buyer must comply with its obligations under
clause 5.1 ("Payments on Completion").
4.5 Interdependent
In respect of Completion:
(a) the obligations of the parties under this clause 4
("Completion") (except for clause 4.2(k)) are interdependent;
and
(b) unless otherwise stated, all actions required to be performed by
a party at Completion (except as regards clause 4.2(k)) are
taken to have occurred simultaneously on the Completion Date,
and no party will be obliged to Complete unless the other parties
have complied with their obligations on Completion.
4.6 Title
Upon Completion and following compliance by the Buyer of its
obligations under clause 5.1, legal and beneficial ownership of the
Shares will pass to the Buyer free of any Encumbrance and with all
rights, including dividend rights, attached or accruing to them
whether before or after Completion.
4.7 Records
The Seller will use its best endeavours to update the share
registers of each Group Company so they are accurate as at the
Completion Date.
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5 Payment of Purchase Price and Escrow Amount
5.1 Payments on Completion
(a) On Completion, the Buyer must:
(i) subject to clause 5.1(b), pay to the Seller (or as the
Seller Representative directs) an amount equal to the
Estimated Purchase Price plus an amount equal to the
Notional Interest Amount; and
(ii) provide to Techpac Holdings (Australia) Pty Ltd and Tech
Pacific Holdings (NZ) Ltd the Mezzanine Debt Amount and,
with assistance from the Seller, the Buyer must procure
these Group Companies repay the Mezzanine Loan in full to
the Mezzanine Lenders,
in each case, where appropriate, to an account or accounts
nominated by the Seller Representative (which accounts shall be
nominated at least two Business Days prior to the Completion
Date).
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(b) The Seller directs the Buyer to pay on Completion from the
amount payable to it under paragraph (a)(i) above an amount
equal to the Escrow Amount into the Escrow Account.
5.2 Stocktake
(a) The Buyer and the Seller Representative must cause management of
the Company to cause a physical stocktake of all trading stock
to be undertaken by the Group as at the Adjustment Statement
Date ("Stocktake").
(b) Representatives of the Seller, including an auditor nominated by
the Seller Representative (" Seller's Auditor"), the Buyer, the
Auditor and the Buyer's auditor, PricewaterhouseCoopers, will be
entitled to be present at the Stocktake to observe details
recorded on the stock sheets.
(c) The Stocktake must be undertaken in all jurisdictions in which
the Group trades and carried out on or around the Adjustment
Statement Date or over the immediately preceding weekend. Full
stock counts must be conducted (as opposed to regular cycle
counting) except that in relation to the Stocktake for that part
of the Business conducted in Australia, this must be designed to
utilise the benefit of the weekly cycle count procedures in
place generally for that part of the Business.
5.3 Draft Adjustment Statement
After Completion, the Buyer must procure that the Company prepares a
draft Adjustment Statement in accordance with clauses 5.5 ("Contents
of Adjustment Statement") and 5.6 ("Adjustment Statement Accounting
Policies").
5.4 Reasonable endeavours
The Buyer must use all reasonable endeavours to ensure the draft
Adjustment Statement is delivered to the Seller Representative, the
Buyer and the Auditor within 25 Business Days of the Completion
Date.
5.5 Contents of Adjustment Statement
The Adjustment Statement (including any draft) must:
(a) be in the format set out in Schedule 6 ("Adjustment Statement");
(b) state the Estimated Net Tangible Assets and the Net Tangible
Assets at Adjustment Statement Date; and
(c) accordingly, state the Adjustment Amount payable by the Seller
or the Buyer (as applicable) under clause 5.15 ("Payment of
Adjustment Amount").
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5.6 Adjustment Statement Accounting Policies
The Adjustment Statement (including any draft) must be prepared in
accordance with the accounting policies, standards, principles,
procedures and method of application of them set out in Schedule 7
("Adjustment Statement Accounting Policies").
5.7 Audit
(a) When the draft Adjustment Statement prepared in accordance with
clause 5.5 ("Contents of Adjustment Statement") and clause 5.6
("Adjustment Statement Accounting Policies") has been delivered
to the Seller Representative, the Buyer and the Auditor, the
Seller Representative and the Buyer must promptly jointly
instruct the Auditor:
(i) to perform an audit of the draft Adjustment Statement; and
(ii) to prepare a final Adjustment Statement and an Adjustment
Statement Audit Report in the form set out in Schedule 8
("Auditor's scope of work") and provide them to the Seller
Representative and the Buyer within 30 Business Days of the
instruction of the Auditor.
(b) The terms of engagement of the Auditor must:
(i) be agreed in writing by the Seller Representative and the
Buyer;
(ii) incorporate the scope of work parameters in Schedule 8
("Auditor's Scope of Work");
(iii) direct the Auditor to conduct its audit in accordance with
Australian GAAS for audit engagements, except as expressly
provided otherwise by their terms of engagement and this
agreement; and
(iv) require the Auditor to adopt the quantitative materiality
limit set out in Schedule 8 ("Auditor's scope of Work") in
conducting its audit.
5.8 Auditor's access
The Buyer must procure that each Group Company provides the Auditor
such access to all its employees, accounts, records and other
documents and all assistance as the Auditor reasonably requires to
conduct its audit and prepare its Adjustment Statement Audit Report.
5.9 Access to Auditor and papers
The Seller Representative and the Buyer must procure that each other
(and any of each other's advisers) are given reasonable access to:
(a) the accounting records, documents and work papers as are in each
other's or the Company's or any other Group Company's possession
12
or control and relate to the preparation of the draft and the
final Adjustment Statement;
(b) the Auditor's working papers (subject to any "hold harmless" or
other reasonable requirements of the Auditor being satisfied)
relating to the preparation of the final Adjustment Statement
and the Adjustment Statement Audit Report; and
(c) the Auditor to discuss the conduct of the audit and the
procedures conducted.
5.10 Auditor's costs
The Seller and the Buyer must each bear 50% of the Auditor's costs
of its engagement in relation to the Adjustment Statement and the
Adjustment Statement Audit Report.
5.11 Consultation on final Adjustment Statement
The Seller Representative and the Buyer must consult with each other
and use all reasonable endeavours to agree the Adjustment Amount
within 20 Business Days of delivery of the final Adjustment
Statement and Adjustment Statement Audit Report by the Auditor to
the Seller Representative and the Buyer.
5.12 Adjustment Amount
The Adjustment Amount which is final and binding on the parties is:
(a) the amount agreed by the Seller Representative and the Buyer
under clause 5.11 ("Consultation on final Adjustment
Statement"); or
(b) failing such agreement and if neither the Seller Representative
nor the Buyer give an Adjustment Statement Dispute Notice
complying with clause 5.14 ("Adjustment Amount disputes"), the
amount for the Adjustment Amount set out in the final Adjustment
Statement resulting from the audit under clause 5.7 ("Audit");
or
(c) if the Seller Representative or the Buyer gives an Adjustment
Statement Dispute Notice complying with clause 5.14 ("Adjustment
Amount disputes"), the amount agreed or finally determined as
the Adjustment Amount under the procedures set out in that
clause.
5.13 Limitation on Adjustment Amount disputes
(a) The parties may not dispute the final Adjustment Statement nor
the Adjustment Amount set out in it unless:
(i) it has been audited under clause 5.7 ("Audit");
(ii) the aggregate amount of the Adjustment Amount disputed
exceeds $5,000,000; and
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(iii) for each individual line item in the final Adjustment
Statement disputed, the amount disputed for that individual
line item exceeds $1,000,000.
(b) No party may dispute any agreement or determination made under
this agreement of any item in connection with the Adjustment
Statement and the Adjustment Amount.
5.14 Adjustment Amount disputes
(a) If the Adjustment Amount is not agreed under clause 5.11
("Consultation on final Adjustment Statement"), the Seller
Representative and/or the Buyer may give notice to the other
("Adjustment Statement Dispute Notice"):
(i) stating (and the Seller Representative or the Buyer (as
applicable) must act reasonably in so stating) that it
disputes one or more items in the final Adjustment Statement
(as audited) and accordingly, it disputes the Adjustment
Amount set out in it;
(ii) specifying the particular items it disputes; and
(iii) stating its opinion of the correct amounts for those
disputed items and the Adjustment Amount and providing
reasonable detail to substantiate its calculations and why
it disputes the relevant amounts in the final Adjustment
Statement.
Any Adjustment Statement Dispute Notice must be given within 10
Business Days of expiry of the Adjustment Statement Consultation
Period and only one may be given by each of the Seller
Representative and the Buyer which cannot be revoked without the
other's written consent.
(b) If the Seller Representative and the Buyer cannot agree on all
(or part of) the disputed items referred to in any Adjustment
Statement Dispute Notice within 10 Business Days of its service,
then either of them (" Notifying Party") may within a further 14
days give notice to the other requiring the disagreement to be
determined by an Independent Expert.
(c) The Independent Expert will be the person appointed as expert
jointly by the Seller Representative and the Buyer or if they do
not agree on the person to be appointed within 5 Business Days
of the date on which notice under paragraph (a) was given, the
accountant appointed by the President of the Australian
Institute of Chartered Accountants of New South Wales at the
request of either the Seller Representative or the Buyer
("Independent Expert").
(d) Once appointed, the Independent Expert must be instructed by the
Notifying Party to make a decision on the disagreement as soon
as practical after receiving any submissions from the Seller
Representative and the Buyer and in any event within 15 Business
Days of his being instructed. Those submissions must be made in
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writing within 10 days (or such other time as may be agreed in
writing between the Seller Representative and the Buyer) after
the Independent Expert is instructed. A copy must be made
available to each of the Seller Representative and the Buyer.
(e) The decision of the Independent Expert is, in the absence of
manifest error, conclusive and binding on the parties for the
purposes of determining the amount of the relevant item (or part
of it) for the purposes of the Adjustment Statement and the
Adjustment Amount payable under this agreement.
(f) The Independent Expert's costs and expenses in connection with
the reference must be paid by the Seller if the Seller
Representative refers the disagreement to the Independent Expert
and by the Buyer if the Buyer refers the disagreement to the
Independent Expert.
(g) The Independent Expert must be appointed as an expert and not as
an arbitrator. The procedures for determination are to be
decided by the Independent Expert in its discretion.
5.15 Payment of Adjustment Amount
(a) The Adjustment Amount must be paid:
(i) by the Buyer to the Seller if the Net Tangible Assets at
Adjustment Statement Date exceeds the Estimated Net Tangible
Assets; or
(ii) by the Seller to the Buyer if the Net Tangible Assets at
Adjustment Statement Date is less than the Estimated Net
Tangible Assets.
(b) The Adjustment Amount must be paid:
(i) within 5 Business Days of its agreement under clause 5.12(a)
("Adjustment Amount");
(ii) subject to paragraph (c) and if clause 5.12(a) ("Adjustment
Amount") does not apply, within 5 Business Days of the
expiry of the period to give an Adjustment Statement Dispute
Notice under clause 5.14 ("Adjustment Amount disputes"); or
(iii) subject to paragraph (c), within 5 Business Days of its
agreement or determination under clause 5.14 ("Adjustment
Amount disputes").
(c) If any Adjustment Statement Dispute Notice is given, the amount
to be paid under clause 5.15(b)(ii) ("Payment of Adjustment
Amount") must be calculated as the Adjustment Amount shown in
the final Adjustment Statement, exclusive of amounts
attributable to any validly disputed individual line item (or
part of it).
(d) The Buyer must pay to the Seller or the Seller must pay to the
Buyer (as applicable) within 5 Business Days of the agreement
and/or determination of all disputed items set out in any
Adjustment
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Statement Dispute Notice under clause 5.14 ("Adjustment Amount
disputes") an amount, which after taking into account any
payment made complying with clause 5.15(c) ("Payment of
Adjustment Amount"), equals the Adjustment Amount.
(e) The payment of the Adjustment Amount is an adjustment to the
Purchase Price.
5.16 Method of payment
Each payment referred to in this clause 5 ("Payment of Purchase
Price and Escrow Amount") must be made by direct debit of
immediately available funds or such other method agreed by the
Seller Representative and the Buyer.
5.17 Notification by Seller Representative
Not less than two Business Days before the Completion Date, the
Seller Representative must notify the Buyer of the Mezzanine Debt
Amount.
5.18 Escrow Account
(a) The parties must procure that the Escrow Account is established
on or prior to Completion with a nominated representative of the
Seller Representative and a nominated representative of the
Buyer as joint signatories for the purposes of giving directions
to the Agent in relation to the Escrow Account and procuring
that the Agent executes the Escrow Deed on or prior to
Completion. Each of the Seller Representative and the Buyer may
change its nominated representative from time to time by written
notice to the other and the Agent.
(b) The Seller Representative and the Buyer must cause their
respective nominated representatives for the purposes of the
Escrow Account to give directions to the Agent for the release
of funds from the Escrow Account promptly in accordance with, or
as required by, this agreement.
(c) The Seller Representative and the Buyer must in good faith
negotiate and agree an escrow deed with the Agent that gives
effect to clauses 5.18 to 5.27 and provides for appropriate
indemnification for the Agent and for the form of notice (and
authentication) upon which the Agent may rely in acting at the
direction of the Seller Representative and the Buyer under
clauses 5.18 to 5.27. Failing agreement, the Seller
Representative and the Buyer agree that they will adopt a form
that gives effect to clauses 5.18 to 5.27 determined by an
independent Bermudan law firm whose costs shall be borne as to
50% each by the Seller and the Buyer.
5.19 Payments from Escrow Account
No amount may be withdrawn from the Escrow Account except:
(a) on the joint instructions of the nominated representatives of
the Buyer and the Seller Representative to the Agent;
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(b) to make a payment to the Buyer under clause 5.24 ("Resolution of
Claims") or otherwise to satisfy a Liability in respect of an
Agreed Claim (along with any interest accruing thereon);
(c) to remit interest accruing on the Escrow Account Balance to the
Seller Representative in accordance with clause 5.20 ("Interest
on Escrow Account Balance") or the Buyer in accordance with
clause 5.25 ("Interest accruing to Buyer");
(d) to make a payment to the Seller Representative under clause 5.21
("No Buyer Claims Or Actions by the Escrow Amount Payment Date")
or under clause 5.22 ("Buyer Claims Or Actions by the Escrow
Amount Payment Date").
5.20 Interest on Escrow Account Balance
Subject to clause 5.25 ("Interest accruing to the Buyers"), interest
which accrues on the Escrow Account Balance (together with any
interest accruing on amounts credited to the Escrow Account as
interest) is for the benefit of the Seller. Subject to clause 5.25
("Interest accruing to the Buyers"), the Seller Representative may
require amounts credited to the Escrow Account by way of interest to
be released from the Escrow Account and paid to the Seller
Representative from time to time.
5.21 No Buyer Claims Or Actions by the Escrow Amount Payment Date
(a) If the Buyer has not notified the Seller Representative of any
Escrow Buyer Claims Or Actions by an Escrow Amount Payment Date,
then on the immediately following Business Day after the
relevant Escrow Amount Payment Date, the Seller Representative
and the Buyer must procure that the Agent pays:
(i) where the Escrow Amount Payment Date is the Escrow First
Payment Date, $10 million of the Escrow Amount together with
any interest credited to the Escrow Account in respect of
such amount, from the Escrow Account to the Seller
Representative; and
(ii) where the Escrow Amount Payment Date is the Escrow Second
Payment Date, all the Escrow Account Balance, together with
any interest credited to the Escrow Account, from the Escrow
Account to the Seller Representative.
5.22 Buyer Claims or Actions by the Escrow Amount Payment Date
(a) If there is or has been any Escrow Buyer Claim Or Action by the
Escrow First Payment Date, the Seller Representative and the
Buyer must procure that the Agent pays to the Seller
Representative on the immediately following Business Day after
the Escrow First Payment Date:
(i) where the sum of the aggregate amount of the Outstanding
Escrow Buyer Claims or Actions as at the Escrow First
Payment Date plus the aggregate amount of Agreed Claims paid
from the Escrow Account up to that Escrow Amount
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Payment Date is equal to or less than $25 million: $10
million, together with any interest credited to the Escrow
Account in respect of that amount; or
(ii) where the sum of the aggregate amounts of the Outstanding
Escrow Buyer Claims Or Actions as at the Escrow First
Payment Date plus the aggregate amount of Agreed Claims paid
from the Escrow Account up to that Escrow Amount Payment
Date is greater than $25 million: the difference between $35
million and that sum (if any) together with interest
credited to the Escrow Account in respect of that difference
(if any).
(b) If there is or has been any Escrow Buyer Claim Or Action by the
Escrow Second Payment Date, the Seller Representative and the
Buyer must procure that the Agent pays to the Seller
Representative on the immediately following Business Day after
the Escrow Second Payment Date, the Escrow Account Balance
together with any accrued interest credited to the Escrow
Account in respect of such amount (other than interest due to
the Buyer under clause 5.25) less the aggregate amount of all
Outstanding Escrow Buyer Claims Or Actions as at the Escrow
Second Payment Date.
(c) If:
(i) a Claim or Claimed Amount is included in Outstanding Escrow
Buyer Claims Or Actions under paragraph (a)(ii) above; and
(ii) following the Escrow First Payment Date and before the
Escrow Second Payment Date, that Claim or Claimed Amount:
(A) becomes an Agreed Claim for an amount less than the
Claimed Amount; or
(B) is withdrawn or not pursued by the Buyer; or
(C) ceases to be enforceable under clause 9.1(b) or clause
9.1(c),
then the Buyer and the Seller Representative must procure the
Agent to pay to the Seller Representative promptly following
that event an amount equal to the amount that would have been
payable under paragraph (a) above had the event subsisted at
that Escrow Amount Payment Date less the aggregate amount
previously paid under that paragraph (a) and this paragraph (c),
together with any interest accrued under clause 5.20 ("Interest
on Escrow Balance") in respect of that amount.
(d) If:
(i) a Claim or Claimed Amount is included in Outstanding Escrow
Buyer Claims Or Actions under paragraph (b) above; and
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(ii) following the Escrow Second Payment Date, that Claim or
Claimed Amount:
(A) becomes an Agreed Claim for an amount less than the
Claimed Amount; or
(B) is withdrawn or not pursued by the Buyer; or
(C) ceases to be enforceable under clause 9.1(b) or clause
9.1(c),
then the Buyer and the Seller Representative must procure the
Agent to pay to the Seller Representative promptly following
that event an amount equal to the amount that would have been
payable under paragraph (b) above had the event subsisted at
that Escrow Amount Payment Date less the aggregate amount
previously paid under that paragraph (b) and this paragraph (d),
together with any interest accrued under clause 5.20 ("Interest
on Escrow Balance") in respect of that amount.
5.23 Unagreed Claims notice
If at either of the Escrow Amount Payment Dates there are any
Unagreed Claims, the Buyer must notify the Seller Representative in
writing by the relevant Escrow Amount Payment Date in respect of
each Unagreed Claim, the Buyer's estimate, in good faith and acting
reasonably of the amount of such Claim ("Claimed Amount").
5.24 Resolution of Claims
If an Escrow Buyer Claim Or Action becomes an Agreed Claim at any
time, the Seller Representative and the Buyer must, on the
immediately following Business Day, procure the Agent to pay to the
Buyer the amount due to the Buyer in respect of the Agreed Claim
("Agreed Claim Amount") (provided that such amount may only be to
the extent of the Escrow Account Balance (if any)).
5.25 Interest accruing to Buyer
The interest which accrues on that amount of the Escrow Account
Balance equal to any Agreed Claim Amount (together with any interest
accruing on amounts credited to the Escrow Account as interest on
that Agreed Claim Amount of the Escrow Account Balance) is for the
benefit of the Buyer from the date on which the Agreed Claim Amount
is payable to the Buyer under clause 5.24 ("Resolution of Claims").
The Buyer may require amounts credited to the Escrow Account by way
of interest which are payable to the Buyer under this clause to be
released from the Escrow Account and paid to it from time to time.
5.26 Sole recourse for General Claims
(a) The Buyer and the Guarantor each agree that the sole recourse
and remedy for the Buyer and the sole Liability of the Seller in
respect of the subject matter of any General Claim is to the
extent of the Escrow Account Balance (up to the amount due to
the Buyer in respect of the General Claim) at the time the
General Claim is payable to the Buyer.
19
Where the General Claim is payable, the Seller has no Liability
in respect of the subject matter of the General Claim to the
extent that the amount of the General Claim is greater than the
Escrow Account Balance.
(b) The Buyer may make Escrow Buyer Claims Or Actions that are not
General Claims provided that the Escrow Amount and the Escrow
Account Balance will be reduced by payments under this clause 5
to satisfy Escrow Buyer Claims Or Actions that are not General
Claims.
(c) For the avoidance of doubt, nothing in clause 5.26(a) limits or
restricts the Buyer from seeking any recourse or remedy in
respect of the subject matter of any Buyer Claim Or Action that
is not a General Claim that becomes an Agreed Claim from the
Escrow Account Balance from time to time.
5.27 Buyer Claims
For the avoidance of doubt, any amount paid to the Buyer (including
from the Escrow Account) in respect of a breach of any of the
Warranties must, notwithstanding anything else in this agreement, be
deemed to be a reduction in the Purchase Price. The reduction must
be applied:
(a) first, in reducing the price payable for the Ordinary Shares
(pro rata as between each Ordinary Share); and
(b) thereafter, in reducing the price payable for the Preference
Shares (pro rata as between each Preference Share).
5.28 Seller Representative - dealing with Purchase Price on behalf of
Sellers
(a) (Net Tangible Assets adjustment - retention)
(i) The Seller Representative may retain from the payment to the
Sellers under clause 5.1(a)(i) an amount determined in its
reasonable discretion of that payment ("Retention Amount").
Seller must do this on a basis that does not discriminate
amongst Sellers.
(ii) If no payment to the Buyer is required under clause
5.15(a)(ii), the Seller Representative must within 5
Business Days pay the Retention Amount to the Sellers in
immediately available funds in their Respective Proportions.
(iii) If a payment to the Buyer is required under clause
5.15(a)(ii) ("Required Payment"), the Seller Representative
may apply the Retention Amount to that payment on behalf of
the Sellers in accordance with clause 5.15(b).
(iv) If the Retention Amount is greater than the Required
Payment, the Seller Representative must within 5 Business
Days pay the excess to the Sellers in immediately available
funds in their Respective Proportions.
20
(v) If the Retention Amount is less than the Required Payment,
the Seller Representative may apply the entire Retention
Amount to that payment on behalf of the Sellers in
accordance with clause 5.15 (b) and each Seller must within
2 Business Days of notice from the Seller Representative put
the Seller Representative in immediately available funds to
enable the Seller Representative, on behalf of that Seller,
to comply with that Seller's obligations under clause
5.15(a)(ii) and (b) to pay that Seller's Respective
Proportion of the amount by which the Required Payment is
greater than the Retention Amount.
(b) (Escrow)
Where the Seller Representative receives a payment from
the Escrow Account under clause 5.21 or 5.22 or otherwise, it
must pay to each Seller in immediately available funds its
entitlement having regard to any Agreed Claims for that Seller
being met from that Seller's proportion of the Escrow Amount,
within 5 Business Days of receipt of the payment from the Escrow
Account.
(c) (Transaction costs)
(i) The Seller Representative may retain from the payment to the
Sellers under clause 5.1(a)(i) or any payment under clause
3.5 an amount of $26 million ("Estimated Transaction Costs
Amount") for a reasonable period to enable payment of
transaction costs and fees incurred or likely to be incurred
in connection with the sale process undertaken with respect
to the Group and the proposed initial public offering of
Tech Pacific Limited and costs expressly for the Seller's
account under this agreement ("Transaction Costs"). The
Seller Representative must do this on a basis that does not
discriminate amongst Sellers.
(ii) The Seller Representative may pay Transaction Costs from
the Estimated Transaction Costs Amount as they are rendered
or incurred.
(iii) If the Estimated Transaction Costs Amount exceeds
Transaction Costs (after all Transaction Costs have been
paid), the Seller Representative must within 5 Business Days
pay the excess to the Sellers in immediately available
funds.
(iv) If the Estimated Transaction Costs Amount is less than
Transaction Costs (after all Transaction Costs have been
paid), the Seller Representative may by notice require each
Seller within 5 Business Days to put the Seller
Representative in immediately available funds to enable the
Seller Representative to pay the remaining Transaction
Costs.
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6 Conduct of business pending Completion
6.1 Conduct of business
The Seller must procure that (except as disclosed in writing by the
Seller Representative and agreed to in writing by the Buyer) from
the date of this agreement until Completion, the Company and each
Subsidiary:
(a) (operation of business) will operate its business in accordance
with its usual business practices;
(b) (no Encumbrances) will not encumber any material Asset other
than under its existing facilities in the ordinary course of the
Business;
(c) (no disposals) will not dispose of any material Asset or declare
itself the trustee of, any material Asset;
(d) (Material Contracts) will not enter into, or amend in a material
respect, or terminate, any Material Contract, or enter into (or
make any binding offer to enter into) any other obligation which
is not in the ordinary course of business and complies with its
obligations under each Material Contract;
(e) (employment contracts) will not enter into any employment
contract the annual remuneration under which exceeds $100,000,
or renew or amend any such employment contract (including with
regard to superannuation benefits) where that contract, renewal
or amendment is inconsistent with information provided to the
Buyer in the Disclosure Letter;
(f) (business relationships) will use its commercially reasonable
efforts to preserve intact its current material business
relationships;
(g) (Tax matters) will not make any material Tax election or settle
or compromise any material income tax liability, unless that
election, settlement or compromise is required by law and is
supported by an opinion of counsel, or is in the ordinary course
of business and is consistent with past practices;
(h) (accounting practices) will not make any change in accounting
methods, principles or practices used by it (except if required
by a change in Australian Accounting Standards);
(i) (no settlement of Claims) will not settle any Claim, Action or
proceeding for an amount in excess of $1,000,000;
(j) (capital expenditure) will not make any capital expenditure in
excess of $1,000,000 in the aggregate, other than in accordance
with proposed capital expenditure which has been disclosed to
the Buyer in the Disclosure Letter;
(k) (maintain insurances) will maintain (and where necessary use
reasonable efforts to renew) each of the insurance polices
referred to in the Disclosure Letter or disclosed in the Data
Room
22
Documentation and will promptly notify the Buyer if any material
renewal proposal is not accepted by the relevant insurer;
(l) (financings and derivatives) will not:
(i) raise any new financial accommodation;
(ii) enter into a guarantee or indemnity or provide security for
the obligations of any person;
(iii) exceed borrowing or cash reserve limitations established
by any financier; or
(iv) enter into any derivative financial instrument other than
interest rate and foreign currency hedges entered into in
accordance with its usual business practices,
except in connection with the Asian securitisation program to be
implemented by certain Group Companies as referred to in the
Disclosure Letter and except in accordance with and as permitted
under the existing debt facilities of the Group in accordance
with its usual business practices;
(m) (revalue assets) will not revalue any of the assets of the Group
Companies unless required by the Company's auditor;
(n) (consultation) will consult with the Buyer as to the formulation
and approval of programs and budgets relating to the Business or
the conduct or proposed settlement of any material litigation,
other than ordinary course of business debt recovery litigation;
and
(o) (corporate actions) will not:
(i) increase, reduce or otherwise alter its share capital or
grant any options for the issue of shares or other
securities;
(ii) declare or pay a dividend;
(iii) alter the provisions of the constitution or by-laws of any
Group Company;
(iv) make a distribution of Assets; or
(v) buy back its shares.
6.2 Access and assistance
The Seller must procure that the Group gives assistance to the Buyer
as may reasonably be required by the Buyer in order to seek any
third party consents required under any material property lease,
customer or supplier agreement of the Business through the
acquisition of the Company by the Buyer. This undertaking terminates
from the earlier of termination of this agreement and Completion
occurring.
23
6.3 Consultation rights
From the date of this agreement until Completion, the Seller must
procure that:
(a) the Chief Executive Officer and the Chief Financial Officer of
the Group; and
(b) the Country Managers and Country Chief Financial Officers of the
Group in the presence of a person nominated by the Seller's
Representative (such nomination not to be unreasonably withheld
or delayed),
are made available during any Business Day as may reasonably be
required by the Buyer after 24 hours' notice for the Buyer to
consult with them in order to prepare for integration of the
Business with the business of the Buyer.
6.4 Management accounts and other documents
From the date of this agreement until Completion, the Seller must
procure that a copy of the monthly management accounts, budgets,
minutes, board papers and management reports of the Group are given
to the Buyer promptly following the circulation of those documents
to the directors of the Company.
6.5 Damages sole remedy
Despite clause 20.6, the Buyer's sole remedy and each Seller's sole
Liability for breach of this clause 6 is damages, limited and
calculated with respect to that Seller in accordance with this
agreement.
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7 Post-Completion matters
7.1 Exclusion of directors and officers from liability
From Completion, the Buyer must ensure that the Company and each
Subsidiary does not take any Action or proceeding or make any Claim
or demand against any of the present or former directors, officers
or secretaries of the Company or any Subsidiary in respect of any
act or omission on the part of such director, officer or secretary
before Completion, other than any matter arising from the wilful
misconduct, gross negligence or dishonesty of that director, officer
or secretary.
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8 Warranties and representations
8.1 Accuracy
(a) The Seller represents and warrants to the Buyer (subject to the
basis set out in paragraph (b) in respect of the Personal
Warranties and paragraph (c) in respect of the Warranties in
section 3 of Schedule 5 ("Warranties")) that each Warranty is
correct and not misleading in any material respect on execution
of this agreement and will be correct and not misleading as at
immediately prior to Completion as if made on and as at each of
those times.
24
(b) In respect of the Personal Warranties, each Seller gives the
Personal Warranties only in respect of itself and the Shares it
holds and not in respect of any other Seller or Shares held by
any other Seller.
(c) None of the Warranties in section 3 of Schedule 5 are given in
respect of Tech Pacific, Inc.
8.2 Separate Warranties
Each Warranty is to be treated as a separate representation and
warranty. The interpretation of any statement made may not be
restricted by reference to or inference from any other statement.
8.3 Matters Disclosed
Each Warranty is to be read down and qualified by any information:
(a) fairly disclosed to the Buyer by the Seller in the Disclosure
Letter; or
(b) contained in this agreement; or
(c) which is otherwise within the actual knowledge of the Buyer; or
(d) disclosed in writing to the Buyer during the course of the Due
Diligence; or
(e) that would have been disclosed to the Buyer had the Buyer
conducted searches of the Public Register Information,
which is or may be inconsistent with that Warranty and, to the
extent that any Warranty is incorrect or misleading having regard to
any such information, no amount will be recoverable by the Buyer in
respect of any breach of that Warranty to the extent that the breach
arises by reason of or in relation to any such information.
8.4 Buyer's warranties
The Buyer represents and warrants to the Seller that subject to the
Warranties:
(a) in entering into this agreement and in proceeding to Completion,
the Buyer does not rely on any statement, representation,
warranty, condition, forecast or other conduct which may have
been made by or on behalf of the Seller, except the Warranties;
(b) it has received and understood the contents of the Disclosure
Letter;
(c) it has had the opportunity to conduct a due diligence and has
satisfied itself in relation to matters arising from the Due
Diligence;
(d) the Buyer understands and acknowledges the risks and
uncertainties of the industry in which the Business operates and
the general economic risks that impact on or could reasonably be
expected to impact on the Business, its results, operations,
financial position and prospects; and
25
(e) irrespective of whether or not the Due Diligence was as full or
exhaustive as the Buyer would have wished, it has nevertheless
independently and without the benefit of any inducement,
representations or warranty (other than the Warranties) from the
Seller or its agents determined to enter into this agreement.
8.5 Buyer's acknowledgment
The Buyer acknowledges and agrees that:
(a) subject to any law to the contrary and except as provided in the
Warranties, all terms, conditions, warranties and statements,
whether express, implied, written, oral, collateral, statutory
or otherwise, are excluded, and the Seller disclaims all
Liability in relation to them, to the maximum extent permitted
by law; and
(b) the Buyer agrees not to make and waives any right it may have to
make any Claim against the Seller or any of its Representatives
under any of the Corporations Act, the Australian Securities and
Investments Commission Act 2001, the Corporations Act, the
Australian Securities and Investments Commission Act 2001, the
Trade Practices Act (including sections 51A and 52), or the
corresponding provision of any other Commonwealth, state or
territory enactment of Australia, for any statement or
representation concerning the Shares or the Company or the
Subsidiaries.
8.6 Notification
The Seller must inform the Buyer and the Buyer must inform the
Seller promptly upon the Seller or the Buyer (as applicable)
becoming aware of any matter which is or may with the passage of
time give rise to a Warranty Claim or which otherwise constitutes a
material breach of any obligation on it under this agreement.
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9 Limitations of Liability
9.1 Time limit on Claims
(a) The Buyer may not make any Warranty Claim unless details of the
claim have been notified to the Seller Representative in
accordance with clause 9.4 ("Notice of Claims") or clause 9.5
("Third party claims") prior to 1 March 2006.
(b) A Warranty Claim will not be enforceable against the Seller and
is to be taken for all purposes to have been withdrawn unless
any legal proceedings in connection with the claim are commenced
within six months after written notice of the claim is served on
the Seller Representative in accordance with clause 9.4 ("Notice
of Claims") or clause 9.5 ("Third party claims").
(c) A Buyer Claim Or Action that is not a Warranty Claim will not be
enforceable against the Seller and is to be taken for all
purposes to have been withdrawn unless any legal proceedings in
connection with the claim are commenced within six months after
written notice of the
26
claim is served on the Seller Representative in accordance with
clause 9.4 ("Notice of Claims") or clause 9.5 ("Third party
claims").
9.2 Minimum amount of Claim
The Buyer may not make any Warranty Claim:
(a) if the amount of the Claim is less than $350,000; and
(b) unless and until the aggregate amount of all such Claims
properly made under this agreement exceeds $2,500,000, in which
event, for the avoidance of doubt, the Seller will be liable for
the whole of the amount (subject to the other limitations on
Liability of the Seller in this agreement) and not just the
amount in excess of $2,500,000.
9.3 Maximum liability
(a) Subject to clause 9.3(b) and clause 9.3(c), each Seller's total
Liability for loss or damage of any kind not excluded by clause
9.10 ("Exclusion of consequential liability") however caused, in
contract, tort, (including negligence), under any statute or
otherwise from, under or relating in any way to or in connection
with this agreement or the subject matter of the transactions
under it, including a Warranty Claim, is limited in aggregate
for any and all Buyer Claims Or Actions to that Seller's
Respective Proportion of the Purchase Price.
(b) Each Seller's total Liability for loss or damage of any kind not
excluded by clause 9.10 ("Exclusion of consequential liability")
in respect of the subject matter of any General Claim is limited
in aggregate for any and all General Claims to recourse to the
Escrow Account Balance available to meet such Claims in
accordance with clause 5.26 ("Sole recourse for General Claims")
up to an amount equal to that Seller's Respective Proportion of
the Escrow Amount.
(c) Each Seller's total Liability specified in clause 9.3(a) is
reduced by the amount of the liability of that Seller (if any)
under clause 9.3(b).
9.4 Notice of Claims
A notice of any Buyer Claim Or Action must contain the following
details of the Claim:
(a) the facts, matters or circumstances that may give rise to the
Claim;
(b) if it is alleged that the facts, matters or circumstances
referred to in sub-clause (a) constitute a breach of a Warranty,
the basis for that allegation;
(c) an estimate of the amount of the Loss, if any, arising out of or
resulting from the Claim or the facts, matters or circumstances
that may give rise to the Claim; and
(d) where the Buyer wishes to have recourse in respect of the Buyer
Claim Or Action to the Escrow Account, notice of that fact and
the
27
amount of the Claim it wishes to have recourse to the Escrow
Account for.
9.5 Third party claims
If the Buyer becomes aware of any matter or circumstance that may
give rise to a Claim against the Seller under or in relation to or
arising out of this agreement, including a Warranty Claim, as a
result of or in connection with a Claim by or Liability to a third
party then:
(a) the Buyer must promptly give notice of the Claim to the Seller
Representative which must contain reasonable details of the
Claim, including an estimate of the amount of the Loss, if any
arising out of or resulting from the Claim or the facts, matters
or circumstances that may give rise to the Claim;
(b) at the expense of the Seller and at the direction of the Seller
Representative, the Buyer must either:
(i) take such Action (including legal proceedings or making
claims under any insurance policies) as the Seller
Representative may require to avoid, dispute, resist,
defend, appeal, compromise or mitigate the Claim; or
(ii) offer the Seller Representative the option to assume
defence of the Claim except any Claims under which relief
other than monetary damages is sought (such exception
including Claims relating to criminal liability or
injunctive relief); and
(c) the Buyer must not settle, make any admission of liability or
compromise any Claim, or any matter which gives or may give rise
to a Claim, without the prior consent of the Seller
Representative which consent may not be withheld unreasonably.
9.6 Seller to consider Claims
The Seller Representative must notify the Buyer within 30 Business
Days of receipt of a notice of a Buyer Claim Or Action under clause
9.4 ("Notice of Claims") or a notice under clause 9.5 ("Third party
claims") indicating whether the Seller admits or denies the claim
(in whole or in part) (or, in the case of third party claims,
whether it exercises the option in clause 9.5(b)(ii) ("Third party
claims").
9.7 Seller to defend Claim
If the Seller Representative exercises the option in clause
9.5(b)(ii) ("Third party claims"), then:
(a) the Buyer agrees to co-operate with the Seller Representative
and do all things reasonably requested by the Seller
Representative in respect of the Claim;
(b) the Seller Representative agrees, at its own expense, to defend
the Claim;
28
(c) the Seller Representative may settle or compromise the Claim
with the consent of the Buyer, such consent not to be
unreasonably withheld; and
(d) the Seller agrees to consult with the Buyer in relation to the
conduct of the Claim and not take or persist in any course that
might reasonably be regarded as materially harmful to the
goodwill or operation of the Buyer or the Business.
9.8 Seller not liable
The Seller is not liable to the Buyer (or any person deriving title
from the Buyer) for any Claim under or in relation to or arising out
of this agreement, including any Warranty Claim:
(a) if the Buyer has ceased, after Completion, to own or Control the
Group Company in respect of which the Claim arises;
(b) to the extent that the Claim is as a result of or in consequence
of any voluntary act, omission, transaction or arrangement of or
on behalf of the Buyer or any other Buyer Group Company after
Completion;
(c) to the extent that the Claim and is as a result of or in respect
of any legislation not in force at the date of this agreement
(including legislation which takes effect retrospectively);
(d) to the extent that the Claim arises or is increased as a result
only of an increase in the rates, method of calculation or scope
of taxation after Completion;
(e) to the extent that the Claim arises or is increased as a result
of any change in Australian Accounting Standards after
Completion;
(f) to the extent that the Claim arises in relation to facts,
matters or circumstances, or is increased as a result of action
taken or not taken by the Seller after consultation with and the
prior written approval of the Buyer;
(g) to the extent that provision has been made for any fact, matter
or circumstance giving rise to a Claim in the Audited Accounts
or in the Adjustment Statement;
(h) to the extent that the Buyer was aware on or before the date of
this agreement of any fact, matter or circumstance, and was
aware that such fact, matter or circumstance will or may give
rise to or form the basis of the Claim; or
(i) to the extent that the Claim relates to or arises out of any
act, omission, transaction or arrangement that occurred prior to
12 June 2003 (except an act, omission, transaction or
arrangement involving the Company, Tech Pacific Holdings Sarl,
TP Holdings N.V., Techpac Holdings (Australia) Pty Limited, Tech
Pacific Holdings (NZ) Limited or TP Holdings Limited).
29
9.9 Reduction in Purchase Price
If a payment is made for a breach of any Warranty, the payment is to
be treated in accordance with clause 5.27 ("Buyer Claims").
9.10 Exclusion of consequential liability
(a) The Seller excludes all Liability for indirect and consequential
loss or damage (including for loss of profit (whether direct,
indirect, anticipated or otherwise)), loss of expected savings,
opportunity costs and damage to reputation (regardless of
whether any or all of these things are considered to be indirect
or consequential losses or damage) in contract, tort (including
negligence), under any statute or otherwise arising from or
related in any way to this agreement or its subject matter,
except in respect of General Claims.
(b) The Buyer excludes all Liability for indirect and consequential
loss or damage (including for loss of profit (whether direct,
indirect, anticipated or otherwise)), loss of expected savings,
opportunity costs and damage to reputation (regardless of
whether any or all of these things are considered to be indirect
or consequential losses or damage) in contract, tort (including
negligence), under any statute or otherwise arising from or
related in any way to this agreement or its subject matter,
except in respect of any breach by the Buyer of clause 4.4 or
clause 5.1.
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10 Buyer's warranties
10.1 Buyer's warranties
Each of the Buyer and the Guarantor represents and warrants to the
Seller that each of the following statements is correct and not
misleading in any material respect on execution of this agreement
and will be correct and not misleading as at immediately prior to
Completion as if made on and as at each of those times:
(a) it has the power to enter into and perform this agreement and
has obtained all necessary consents and authorisations to enable
it to do so;
(b) the entry into and performance of this agreement by it does not
constitute a breach of any obligation (including any statutory,
contractual or fiduciary obligation), or default under any
agreement or undertaking by which it is bound;
(c) this agreement constitutes valid and binding obligations upon it
enforceable in accordance with its terms by appropriate legal
remedy;
(d) this agreement and Completion do not conflict with or result in
a breach of or default under any applicable Law, any provision
of its constitution or any material term or provision of its
constitution or any material term or provision of any agreement
or deed or writ, order or injunction, judgment, Law, rule or
regulation to which it is a party or is subject or by which it
is bound;
30
(e) no voluntary arrangement has been proposed or reached with any
creditors of it; and
(f) it is able to pay its debts as and when they fall due.
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11 Default
11.1 Failure by a party to Complete
If a party does not Complete, other than as a result of default by
the other party, the non-defaulting party may give the defaulting
party notice requiring it to Complete within 7 days of receipt of
the notice.
11.2 Specific performance or termination
If the defaulting party does not Complete within the period
specified in clause 11.1 ("Failure by a party to Complete") the
non-defaulting party may choose either to proceed for specific
performance or terminate this agreement. In either case, the
non-defaulting party may seek damages for the default.
11.3 Termination of agreement
If this agreement is terminated then clause 3.4 ("Effect of
termination") will apply. A termination of this agreement under this
clause will not affect any other rights the parties have against one
another at law or in equity.
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12 Confidential Information
12.1 Confidential Information
Subject to clauses 12.7 ("Disclosure to other potential buyers"),
12.10 ("Enforcement by the company"), 12.11 ("Privacy"), 12.14 ("Use
of Business Information by Seller after Completion) and clause 15
("Announcements"), no Confidential Information may be disclosed by
the Receiving Party to any person except:
(a) to Representatives of the Receiving Party or its Related
Entities requiring the information for the purposes of this
agreement; or
(b) with the consent of the Disclosing Party; or
(c) if the Receiving Party is required to do so by necessarily
applicable Law, a stock exchange or any regulatory authority; or
(d) if the Receiving Party is required to do so in connection with
legal proceedings relating to this agreement.
12.2 Disclosure of Confidential Information
If the Receiving Party discloses information as permitted under
clause 12.1(a) or (b) ("Confidential Information") the Receiving
Party must use all reasonable endeavours to ensure that persons
receiving Confidential Information from it do not disclose the
Confidential Information except in the circumstances permitted in
clause 12.1 ("Confidential Information").
31
12.3 Use of Confidential Information
The Buyer must not use any Confidential Information except for the
purpose of performing its obligations under this agreement.
12.4 Excluded Information
Clauses 12.1 ("Confidential Information"), 12.2 ("Disclosure of
Confidential Information") and 12.3 ("Use of Confidential
Information") do not apply to Excluded Information.
12.5 Delivery of materials
On the request of the Disclosing Party, the Receiving Party must at
its sole discretion immediately deliver to the Disclosing Party or
otherwise destroy all documents or other materials containing or
referring to Confidential Information of the Disclosing Party which
are:
(a) in the Receiving Party's possession, power or control; or
(b) in the possession, power or control of persons who have received
Confidential Information from the Receiving Party under clause
12.1(a) or (b) ("Confidential Information").
12.6 Use and disclosure of Business related Confidential Information by
Buyer from Completion
On and from Completion, clauses 12.1 ("Confidential Information") to
12.5 ("Delivery of materials") cease to apply to the Buyer in
relation to the Business Information.
12.7 Disclosure to other potential buyers
The Buyer acknowledges that the Seller has disclosed to other
potential buyers of the Shares, its advisers (both in connection
with a sale of the Shares and an IPO of the Group or some of its
members) and to potential investors in an IPO of the Group or some
of its members, information which may be of a confidential nature
and that clause 12.1 ("Confidential Information") does not apply to
any such disclosure.
12.8 Disclosure of this agreement
The Seller acknowledges that the Buyer and/or the Guarantor:
(a) will be required to publicly disclose the contents of this
agreement and its related schedules, including discussion of the
circumstances relating to the signing of the agreement by the
Guarantor and the Buyer and conditions for Completion
("Disclosed Information") as required by US Laws; and
(b) may discuss the Disclosed Information, including addressing
questions in public and private forums with various
constituents, including the Guarantor's and/or the Buyer's
shareowners, investors, analysts, financial partners, vendors,
customers and rating agencies, relating to such Disclosed
Information, and that clause 12.1 ("Confidential Information")
does not apply to any such disclosure.
32
The Guarantor and/or the Buyer agree to promptly provide a copy
of the Disclosed Information to the Seller on request from the
Seller Representative.
12.9 Disclosure prior to the date of this agreement
The Buyer acknowledges that the Seller and Group Companies have
disclosed information prior to the date of this agreement which may
be of a confidential nature and that clause 12.1 ("Confidential
Information") does not apply to any such disclosure prior to the
date of this agreement.
12.10 Enforcement by the Company
Nothing in this clause 12 ("Confidential Information") prevents the
Company from enforcing any confidentiality agreement entered into by
potential buyers of the Shares before the date of this agreement, to
the extent that the confidentiality agreement was for the benefit of
and is enforceable by the Company.
12.11 Privacy
The Buyer agrees to:
(a) comply with all Privacy Laws;
(i) by which it is bound; and
(ii) by which the Seller is bound and notifies the Buyer
in connection with Personal Information collected, used or disclosed
in connection with this agreement;
(b) notify the Seller immediately after it becomes aware that a
disclosure of Personal Information may be required by law before
Completion;
(c) not do anything with the Personal Information that may cause the
Seller to be in breach of a Privacy Law;
(d) notify the Seller of any request the Buyer receives before
Completion for access to Personal Information which the Seller
has disclosed to the Buyer; and
(e) not give access to, or copies of, Personal Information disclosed
by the Seller to the Buyer to anyone unless the Buyer is
required to do so under a Privacy Law.
12.12 Application of privacy clause
Clause 12.11 ("Privacy") prevails over the balance of this clause 12
("Confidential Information") to the extent of any inconsistency in
respect of Personal Information which is also Confidential
Information.
33
12.13 Use of Personal Information by Seller after Completion
If the Seller is required by this agreement or by law to retain any
Personal Information which is part of the Business Information, the
Seller may use and disclose that Personal Information for the
purpose for which it is required to be retained under this agreement
or as required by that other law or by any Privacy Laws.
12.14 Use of Business Information by Seller after Completion
(a) Subject to and from Completion, clause 12.1 ("Confidential
Information") applies to Business Information as if that
Business Information had been disclosed by the Buyer as the
Disclosing Party for the purposes of this clause 12
("Confidential Information") and had been received by the Seller
as the Receiving Party for the purposes of this clause 12
("Confidential Information").
(b) Despite any other provision of this clause 12 ("Confidential
Information"), each of CVC Capital Partners Asia Pacific LP and
Asia Investors LLC may disclose reasonable detail of its
investment in the Group, summary financial performance of the
Group during the period of its investment, the fact that the
transactions the subject of this agreement took place and the
return on its investment in the Group in investor presentations
and investment fund raising activities as may be reasonably
required by them or by entities that manage or advise them (or
Related Bodies Corporate of such managers or advisers) provided
this is done on a confidential basis.
(c) Despite any other provision of this clause 12 ("Confidential
Information"), Hagemeyer Caribbean Holding NV may disclose
Business Information as is reasonably required by it for
reporting purposes to any entity that Controls Hagemeyer
Caribbean Holding NV provided it is done on a confidential
basis.
12.15 Survival of termination
This clause 12 ("Confidential Information") survives termination
of this agreement.
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13 Guarantee and Indemnity
13.1 Consideration
The Guarantor acknowledges that the Seller is acting in reliance on
the Guarantor incurring obligations and giving rights under this
clause 13 ("Guarantee and Indemnity").
13.2 Guarantee
The Guarantor unconditionally and irrevocably guarantees to the
Seller the Buyer's compliance with the Buyer's obligations in
connection with this agreement, including each obligation to pay
money ("Guarantee").
If the Buyer does not comply with those obligations on time and in
accordance with this agreement, then the Guarantor agrees to comply
with
34
those obligations on demand from the Seller Representative. A demand
may be made whether or not the Seller Representative has made demand
on the Buyer.
13.3 Indemnity
The Guarantor indemnifies the Seller against any Liability or Loss
arising from, and any costs, charges or expenses it incurs, if an
obligation is unenforceable against, or a monetary obligation cannot
be recovered from, the Guarantor under the Guarantee or from the
Buyer because of any circumstance whatsoever.
The Guarantor agrees to pay amounts due under this clause on demand
from the Seller Representative.
The Seller need not incur expense or make payment before enforcing
this right of indemnity.
13.4 Extent of guarantee and indemnity
The Guarantee is a continuing obligation despite any intervening
payment, settlement or other thing and extends to all of the Buyer's
obligations in connection with this agreement. The Guarantor waives
any right it has of first requiring the Seller to commence
proceedings or enforce any other right against the Buyer or any
other person before claiming from the Guarantor under the Guarantee.
13.5 No merger
The Guarantee does not merge with or adversely affect, and is not
adversely affected by, any of the following:
(a) any other guarantee, indemnity, mortgage, charge or other
encumbrance, or other right or remedy to which the Seller is
entitled; or
(b) a judgment which the Seller obtains against the Guarantor, the
Buyer or any other person in connection with this agreement.
The Seller may still exercise its rights under this Guarantee as
well as under the judgment, mortgage, charge or other encumbrance or
the right or remedy.
13.6 Rights of the Seller are protected
The rights given to the Seller under the Guarantee and the
Guarantor's Liabilities under it, are not affected by any act or
omission of the Seller or any other person. For example, those
rights and Liabilities are not affected by:
(a) any act or omission:
(i) varying or replacing this agreement; or
(ii) releasing the Buyer or giving the Buyer a concession (such
as more time to pay); or
35
(b) acquiescence or delay by the Seller or any other person.
13.7 Guarantor's rights are suspended
As long as any obligation is required, or may be required, to be
complied with in connection with this Guarantee, the Guarantor may
not, without the Seller Representative's consent:
(a) reduce its Liability under this Guarantee by claiming that it or
the Buyer or any other person has a right of set-off or
counterclaim against the Seller; or
(b) exercise any legal right to claim to be entitled to the benefit
of another guarantee, indemnity, mortgage, charge or other
encumbrance given in connection with this agreement or any other
amount payable under the Guarantee; or
(c) claim an amount from the Buyer, or another guarantor, under a
right of indemnity; or
(d) claim an amount in the liquidation, administration or insolvency
of the Buyer or of another guarantor of any of the Buyer's
obligations.
13.8 Reinstatement of rights
Under law relating to liquidation, administration, insolvency or the
protection of creditors, a person may claim that a transaction
(including a payment) in connection with the Guarantee or this
agreement is void or voidable. If a claim is made and upheld,
conceded or compromised, then:
(a) the Seller is immediately entitled as against the Guarantor to
the rights in connection with this Guarantee or this agreement
to which it was entitled immediately before the transaction; and
(b) on request from the Seller Representative, the Guarantor agrees
to do anything (including signing any document) to restore to
the Seller any mortgage, charge or other encumbrance (including
the Guarantee) held by it from the Guarantor immediately before
the transaction.
13.9 Costs
The Guarantor agrees to pay or reimburse the Seller on demand for:
(a) the Seller's reasonable and documented costs, charges and
expenses in making, enforcing and doing anything in connection
with the Guarantee including legal costs, charges and expenses
on a full indemnity basis; and
(b) all duties, fees, Taxes and charges which are payable in
connection with this guarantee and indemnity or a payment or
receipt or other transaction contemplated by it.
36
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14 Seller as trustee
14.1 Application
This clause applies to each Seller that is identified in Schedule 1
("Seller details") as being a trustee (each a "Trustee") of the
trust or superannuation fund specified for that Seller in Schedule 1
("Seller details") (each a "Trust").
14.2 Trustee acknowledgment
Each Trustee acknowledges that it enters into this agreement in its
capacity as trustee of its Trust.
14.3 Trustee representations and warranties
Each Trustee represents and warrants to the other parties, that:
(a) its Trust has been validly created and is in existence as at the
date of this agreement;
(b) the Trustee has been validly appointed as Trustee of the
relevant Trust and is the sole Trustee of that Trust;
(c) the Trust is solely constituted by the trust deed of the Trust
and any subsequent variations or amendments as disclosed in the
Data Room Documentation;
(d) there are no proceedings which could have a material affect on
the assets or financial positions of any Trust or on any
Trustee;
(e) it is the only trustee of its Trust and no action has been taken
or is proposed to remove it as trustee of its Trust;
(f) it has the power under the terms of its Trust to enter into and
comply with its obligations under this agreement;
(g) it has considered the purpose of this agreement and considers
that entry into this agreement is for the benefit of the
beneficiaries of its Trust;
(h) it has a right to be fully indemnified out of its Trust's assets
in respect of obligations incurred by it under this agreement;
and
(i) no action has been taken or is proposed to be taken to terminate
its Trust.
14.4 Limited capacity
Each Trustee enters into this agreement only in its capacity as
trustee of its Trust and in no other capacity. Any Liability arising
under or in connection with this agreement is limited to, and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the assets of its Trust out of
which the Trustee is actually indemnified for the Liability. This
limitation of the Trustee's Liability applies despite another
provision of this agreement and
37
extends to all Liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this agreement.
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15 Announcements
15.1 Public announcements
Subject to clause 15.2 ("Public announcements required by law"), no
party may, before or after Completion, make or send a public
announcement, communication or circular concerning the transactions
referred to in this agreement unless it has first obtained the
written consent of each of the Buyer and the Seller Representative,
which consent is not to be unreasonably withheld or delayed.
15.2 Public announcements required by law
Clauses 12.1 ("Confidential Information") and 15.1 ("Public
announcements") do not apply to a public announcement, public filing
communication or circular required by Law or a regulation of a stock
exchange including the New York Stock Exchange, if the party
required to make or send it has, if practicable, first consulted and
taken into account the reasonable requirements of each of the Buyer
and the Seller Representative.
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16 Costs
(a) Each party to this agreement will pay its own legal and other
costs and expenses in connection with the negotiation,
preparation, execution and completion of this agreement and of
other related documentation.
(b) Third party advisers' costs and expenses and costs and expenses
of the Group directly attributable to and incurred in connection
with the transactions contemplated by this agreement or incurred
in connection with the proposed initial public offering of Tech
Pacific Limited must be borne by the Sellers in their Respective
Proportions. If any such expenses are paid or incurred by any
Group Company, the parties acknowledge that such expenses will
be taken into account as a reduction in the Net Tangible Assets
in the Adjustment Statement.
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17 Notices
17.1 Form
Unless expressly stated otherwise in this agreement, all notices,
certificates, consents, approvals, waivers and other communications
in connection with this agreement must be in writing signed by an
Authorised Officer and must be marked for the attention of:
38
(a) if to any of the Sellers, to CVC Capital Partners Asia Pacific
LP and Asia Investors LLC, as the Seller Representative:
Asia Investors LLC
C/- Corporation Trust Center
1209 Orange Street
Wilmington
New Castle County
Delaware 19801
Fax: +852 2509 9323
For the attention of: Gordon Clancy
CVC Capital Partners Asia Pacific LP
C/- Walkers
PO Box 265
Walker House
Mary Street
George Town
Grand Cayman
Cayman Islands
Fax: +345 040 8666
For the attention of: Managing Director
(b) if to the Buyer or the Buyer's Guarantor:
Ingram Micro Inc.
1600 E. St. Andrew Place,
P.O. Box 25125,
Santa Ana, CA 92799-5125
Fax: +1 (714) 566 9370
For the attention of: General Counsel,
or if the recipient has notified otherwise, then marked for
attention in the last way notified.
17.2 Delivery
Notices must be:
(a) left at the address set out or referred to in clause 17.1
("Form") or the Details (as applicable); or
(b) sent by prepaid ordinary post (airmail if appropriate) to the
address set out or referred to in clause 17.1 ("Form") or the
Details (as applicable); or
(c) sent by fax to the fax number set out or referred to in clause
17.1 ("Form") or the Details (as applicable); or
(d) given in any other way permitted by law.
However, if the intended recipient has notified a changed fax number
or postal address then the communication must be to that number or
address.
39
17.3 When effective
They take effect from the time they are received unless a later time
is specified.
17.4 Receipt - post
If sent by post, they are taken to have been received three days
after posting (or seven days after posting if posted to or from a
place outside Australia).
17.5 Receipt - fax
If sent by fax, they are taken to have been received at the time
shown in the transmission report as the time that the whole fax was
sent.
17.6 Receipt - general
Despite clauses 17.4 ("Receipt - post") and 17.5 ("Receipt - fax"),
if they are received after 5.00 pm in the place of receipt or on a
non-Business Day, they are taken to be received at 9.00 am on the
next Business Day.
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18 Representatives
18.1 Appointment of Management Seller Representative
Each of the Management Sellers irrevocably appoints the Management
Seller Representative as its attorney with full authority to act on
its behalf with respect to all matters in connection with this
agreement and each Management Seller agrees to be bound by the
actions of the Management Seller Representative with respect to
matters in connection with this agreement.
18.2 Reliance by Buyer on Management Seller Representative
The Buyer is entitled to deal solely with, and rely on, the
Management Seller Representative in connection with matters under
this agreement relating to Management Sellers.
18.3 Authority of Management Seller Representative
The Management Seller Representative has such powers and authority
as are necessary to carry out functions, take the actions and give
any notices required to be carried out, taken or given by any
Management Seller or receive any notices on behalf of any Management
Seller under this agreement. The Management Seller Representative is
entitled to rely on the directions of Management Sellers holding a
majority of the total number of Shares held by all Management
Sellers immediately prior to Completion and is not liable to any
person in its capacity as Management Seller Representative except
with respect to Liability arising from the Management Seller
Representative's fraud or wilful misconduct.
18.4 Reliance by Buyer on Seller Representative
Subject to clauses 18.1 to 18.3 (inclusive) the Sellers agree that
the Buyer is entitled to deal solely with, and rely on, the Seller
Representative as described
40
under this agreement and the Seller Representative has such powers
and authority as are necessary to carry out functions, take the
actions and give any notices required to be carried out, taken or
given by any Seller or receive any notices on behalf of any Seller
under, and in accordance with the terms of, this agreement. CVC
Capital Partners Asia Pacific LP and Asia Investors LLC, as Sellers
Representative, act jointly. They must consult reasonably and in
good faith with Hagemeyer Caribbean Holding NV in respect of
decisions and must act in accordance with this agreement and in the
best interests of all Sellers.
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19 Assignment
19.1 No assignment
(a) Subject to clause 19.1(b), no party may assign or otherwise deal
with its rights under this agreement or allow any interest in
them to arise or be varied in each case without the consent of
the other party, which consent must not be unreasonably withheld
or delayed.
(b) The Buyer may assign its rights under this agreement without the
consent of any other party provided that:
(i) the assignment is to a body corporate which is a wholly-
owned subsidiary (as defined in the Corporations Act) of the
Guarantor (and if the assignee ceases to be such a wholly-
owned subsidiary, the Guarantor must procure that prior to
the assignee ceasing to be such a wholly-owned subsidiary,
it assigns all the rights originally assigned to it to
another wholly-owned subsidiary of the Guarantor); and
(ii) the assignment does not in any way prejudice or adversely
affect the obligations of the Guarantor under clause 13
("Guarantee and Indemnity").
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20 Miscellaneous
20.1 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent
in any way it considers appropriate (including by imposing
conditions), unless this agreement expressly states otherwise.
20.2 Partial exercising of rights
If a party does not exercise a right or remedy fully or at a given
time, the party may still exercise it later.
20.3 No liability for Loss
A party is not liable for any Loss caused by the exercise or
attempted exercise of, failure to exercise, or delay in exercising a
right or remedy under this agreement.
41
20.4 Approvals and consents
By giving its approval or consent a party does not make or give any
warranty or representation as to any circumstance relating to the
subject matter of the consent or approval.
20.5 Conflict of interest
The parties' rights and remedies under this agreement may be
exercised even if it involves a conflict of duty or a party has a
personal interest in their exercise.
20.6 Remedies cumulative
The rights and remedies provided in this agreement are in addition
to other rights and remedies given by law independently of this
agreement.
20.7 Rights and obligations are unaffected
Rights given to the parties under this agreement and the parties'
Liabilities under it are not affected by anything which might
otherwise affect them by law.
20.8 Variation and waiver
A provision of this agreement or a right created under it may not be
waived or varied except in writing, signed by the party or parties
to be bound.
20.9 No merger
The warranties, undertakings and indemnities in this agreement do
not merge on Completion.
20.10 Indemnities
Subject to this agreement, the indemnities in this agreement are
continuing obligations, independent from the other obligations of
the parties under this agreement and continue after this agreement
ends. It is not necessary for a party to incur expense or make
payment before enforcing a right of indemnity under this agreement.
20.11 Further steps
Each party agrees, at its own expense, to do anything the other
party asks (such as obtaining consents, signing and producing
documents and getting documents completed and signed):
(a) to bind the party and any other person intended to be bound
under this agreement;
(b) to show whether the party is complying with this agreement; and
(c) as may be necessary or desirable to give full effect to the
provisions of this agreement and the transactions contemplated
by it.
42
20.12 Time of the essence
Time is of the essence of this agreement in respect of any date or
period determined under this agreement.
20.13 Entire agreement
This agreement constitutes the entire agreement of the parties about
its subject matter and supersedes all previous agreements,
understandings and negotiations on that subject matter.
20.14 Construction
No rule of construction applies to the disadvantage of a party
because that party was responsible for the preparation of, or seeks
to rely on, this agreement or any part of it.
20.15 Severability
If the whole of any part of a provision of this agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this agreement has full force and
effect and the validity or enforceability of that provision in any
other jurisdiction is not affected. This clause has no effect if the
severance alters the basic nature of this agreement or is contrary
to public policy.
20.16 SEC Compliance
The Seller must co-operate and must use its reasonable endeavours to
ensure the Company cooperates with the Buyer in connection with the
preparation of any documents the Buyer or any of its affiliates
files under the Securities Act of 1933, as amended, in connection
with the transaction the subject matter of this agreement, or the
Securities Exchange Act of 1934, as amended and shall use
commercially reasonable efforts to provide the Buyer with financial
statements and other financial information that the Buyer requests
relating to periods prior to Completion and to obtain consents from
the Company's accountants (who are independent pursuant to United
States' Securities and Exchange Commission independence regulations)
in connection therewith. This undertaking ends on 28 February 2006.
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21 Non-compete
21.1 Non-competition or interference
To protect the interests of the Buyer and the goodwill of the
Business each Seller must not, and must procure (insofar as it is
able) that each Associate of it does not directly or indirectly in
any capacity, during the Restraint Period anywhere in the Restraint
Area:
(a) (competitive business): undertake, carry on or be engaged in or
concerned with or interested in any business which includes the
wholesale distribution of personal computers, peripherals,
software, servers, networking equipment or home digital
electronics products in the Restraint Area which is competitive
with the Business ("Competing Business");
43
(b) (solicit employees): canvass or solicit, or accept an approach
from, any person who or which as at the Completion Date or at
any time during the 2 years prior to the Completion Date is or
was a senior employee of the Business or any Group Company with
a view to obtaining that person as an employee or with a view to
that person ceasing to be an employee of any Group Company or
the Buyer;
(c) (solicit customers): canvass or solicit, or accept an approach
from, any person who or which as at the Completion Date or at
any time during the 2 years prior to the Completion Date is or
was a material client or material customer of the Business or
any Group Company with a view to obtaining that person as a
client or customer or with a view to that person ceasing to be a
client or customer of any Group Company or the Buyer, in each
case, in order to compete with the Business;
(d) (interference): interfere with any relationships between the
Group Companies and any of their clients, customers, employees
or suppliers; or
(e) (counsel, procure etc): counsel, procure or otherwise assist any
person to do any of the acts referred to in this clause 21.1
("Non- competition or interference"),
unless such actions are undertaken with the prior written consent of
the Buyer.
21.2 No Share Entitlements
To further protect the interests of the Buyer in the goodwill of the
Business the Seller will not at any time during the Restraint Period
have voting power of more than 5% (within the meaning of section 610
of the Corporations Act) in shares in any body corporate doing any
of the things referred to in clause 21.1 ("Non-competition or
interference") within the Restraint Area.
21.3 Exceptions to non-competition
(a) The restrictions imposed by clause 21.1 ("Non-competition or
interference") and clause 21.2 ("No Share Entitlements") will
not apply to any holding by any Seller or any of its Associates
of shares in a listed company which in aggregate carries not
more than 5% of the votes which could be cast at a general
meeting of the company concerned.
(b) The restrictions imposed by clause 21.1 ("Non-competition or
interference") and clause 21.2 ("No Share Entitlements") will
not apply to the extent that the Seller (or an Associate)
acquires a business or a direct or indirect interest in a
business (" Acquired Business") part of which business comprises
a Competing Business where the revenues attributable to that
Competing Business represent not more than 20% of the total
revenues of the Acquired Business.
(c) To avoid doubt, nothing in clause 21.1 ("Non-competition or
interference") or clause 21.2 ("No Share Entitlements") prevents
Citigroup Inc. nor any affiliate, associate or related entity of
it (other
44
than CVC Capital Partners Asia Pacific LP, Asia Investors LLC
and CVC Asia Pacific Limited) from carrying out any activity in
connection with its business or affairs as they may be conducted
from time to time.
(d) The restrictions imposed by clause 21.1 ("Non-competition or
interference") and clause 21.2 ("No Share Entitlements") do not
prevent Hagemeyer Caribbean Holding NV or any Associate of it
from:
(i) carrying out any of the activities described in clauses
7.3(a)(ii) and 7.3(a)(iii) of the Hagemeyer Sale Agreement;
(ii) doing anything permitted under clauses 7.3(a)(i), 7.3(a)(v)
and 7.3(b) of the Hagemeyer Sale Agreement; or
(iii) holding any interest in Hagemeyer Mauritius Holdings
Limited.
21.4 Severance
If any or any provision or part of a provision of clause 21.1 ("Non-
competition or interference") is held or found to be void, invalid
or otherwise unenforceable it will be deemed to be severed to the
extent that it is void or to the extent of voidability, invalidity
or unenforceability, but the remainder of that clause will remain in
full force and effect.
21.5 Independent legal advice
Each Seller warrants that it has received independent legal advice
with respect to the provisions of this clause 21 ("Non-compete") and
considers them to go no further than reasonably necessary to protect
the goodwill of the Business.
21.6 Damages not an adequate remedy
Each Seller agrees, and agrees to procure that its Associates agree,
that any breach of the undertakings contained in clause 21.1
("Non-competition or interference") may not adequately be
compensated by an award of damages and any breach will entitle the
Buyer, in addition to any other remedies available at law or in
equity, to seek an injunction to restrain the committing of any
breach (or continuing breach).
21.7 CVC Asia Pacific Limited
(a) CVC Asia Pacific Limited has undertaken in favour of the
Buyer not to advise any private equity fund to do anything
that, if that private equity fund were CVC Capital Partners
Asia Pacific LP under this agreement, would amount to a
breach of this clause 21.
(b) If:
(i) CVC Asia Pacific Limited breaches its undertaking; and
45
(ii) following that advice, a private equity fund advised by CVC
Asia Pacific Limited does anything that, if that private
equity fund were CVC Capital Partners Asia Pacific LP under
this agreement, would amount to a breach of this clause 21
("notional breach"),
CVC Capital Partners Asia Pacific LP and Asia Investors LLC are
liable to the Buyer in respect of the notional breach to the
extent the private equity fund would have been liable to the
Buyer under this clause 21 as if it were, in respect of that
conduct, CVC Capital Partners Asia Pacific LP and Asia Investors
LLC.
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22 Governing law, jurisdiction and service of process
22.1 Governing law
This agreement is governed by the law in force in the place
specified in the Details.
22.2 Jurisdiction
Each party submits to the exclusive jurisdiction of the courts of
New South Wales, Australia and courts of appeal from them. Each
party waives any right it has to object to an Action being brought
in those courts including, by claiming that Action has been brought
in an inconvenient forum or that those courts do not have
jurisdiction.
22.3 Serving documents
Without preventing any other method of service, any document in an
Action may be served on a party by being delivered or left at that
party's address set out or referred to in clause 17.1 ("Form") or
the Details.
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23 Counterparts
This agreement may consist of a number of copies, each signed by one
or more parties to the agreement. If there are a number of signed
copies they are treated as making up the one document and the date
on which the last counterpart is executed will be the date of the
agreement.
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24 Supervening legislation
Any present or future legislation which operates to vary the
obligations of a party in connection with this agreement with the
result that another party's rights, powers or remedies are adversely
affected (including, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or rendered
ineffective by law.
46
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25 Interpretation
25.1 Definitions
These meanings apply unless the contrary intention appears.
Adjustment Amount means the positive or negative sum found by
deducting an amount equal to the Estimated Net Tangible Assets from
an amount equal to the Net Tangible Assets at Adjustment Statement
Date.
Adjustment Statement means the statement in the format contained in
Schedule 6 ("Adjustment Statement") and containing the Adjustment
Amount prepared and agreed or determined under clause 5 ("Payment of
Purchase Price and Escrow Amount").
Adjustment Statement Accounting Policies means the accounting
policies, standards, principles, procedures and method of
application of them to be used in preparing the Adjustment Statement
required under clause 5.6 ("Adjustment Statement Accounting
Policies").
Adjustment Statement Audit Report means an audit report of the
Auditor in the form set out in Schedule 8 ("Auditor's scope of
work") on the final Adjustment Statement prepared by the Auditor.
Adjustment Statement Consultation Period means the period under
clause 5.11 ("Consultation on final Adjustment Statement") for
agreement of the Adjustment Amount.
Adjustment Statement Date means:
(a) if the Completion Date is on or before the 15th day of a
calendar month, the last day of the previous calendar month; and
(b) if the Completion Date is after the 15th day of a calendar
month, the Completion Date.
Adjustment Statement Dispute Notice is defined in clause 5.14(a)
("Adjustment Amount disputes").
Agent means Conyers Dill & Pearman, Clarendon House, 2 Church
Street, PO Box HM 666, Hamilton HM CX Bermuda or any other person or
firm agreed between the Seller Representative and the Buyer who will
act as the agent and trustee in relation to the Escrow Account in
accordance with the Escrow Deed.
Agreed Claim means any Escrow Buyer Claim Or Action notified to the
Seller Representative by the Buyer on or prior to the Escrow Second
Payment Date which has been resolved by:
(a) the Seller and the Buyer agreeing the amount due to the Buyer in
respect of such Escrow Buyer Claim Or Action; or
(b) a court of competent jurisdiction making a final order in
respect of the subject matter of the Escrow Buyer Claim Or
Action.
47
Agreed Claim Amount is defined in clause 5.24 ("Resolution of
Claims").
Assets means the assets from time to time of the Company and its
Subsidiaries as defined under Australian Accounting Standards.
Associate means:
(a) in respect of Hagemeyer Caribbean Holding NV, any Related Body
Corporate of that entity;
(b) in respect of CVC Capital Partners Asia Pacific LP, any private
equity fund advised by CVC Asia Pacific Limited or any entity
Controlled by CVC Asia Pacific Limited; and
(c) in respect of a Management Seller, means any entity Controlled
by the Management Seller or where the Management Seller is a
body corporate, the person(s) that Control that Body Corporate
and any entity Controlled by that person(s).
Audited Accounts mean the audited consolidated financial statements
of the Group for the period ended 31 December 2003 and for the six
months ended 30 June 2004, copies of which are set out in Annexure
A.
Auditor means Deloitte Touche Tohmatsu or an internationally
recognised accounting firm as is mutually agreed to between Buyer
and Seller (such agreement not to be unreasonably withheld or
delayed) who is to conduct an audit of the draft Adjustment
Statement pursuant to clause 5.7 ("Audit").
Australian Accounting Standards means:
(a) the accounting standards required under the Corporations Act;
and
(b) to the extent that any matter is not covered by the accounting
standards approved under the Corporations Act, other relevant
accounting standards; mandatory professional reporting
requirements and generally accepted accounting principles
applied from time to time in Australia for a company similar to
the Group, except the principles and practices which are
inconsistent with the standards or requirements referred to in
paragraph (a) above.
Australian GAAS means generally accepted auditing standards in
Australia.
Authorised Officer means a person appointed by a party to act as an
Authorised Officer for the purposes of this agreement.
Business means the IT distribution business of the Group as
conducted at the date of this agreement.
Business Day means a day other than a Saturday, Sunday or public
holiday in Sydney.
Business Information means Confidential Information of or relating
to the Group or any Group Company.
48
Buyer Claim Or Action means any Claim by the Buyer against the
Seller (including a Fundamental Claim, a General Claim or a Buyer
Tax Claim or Action) in respect of or in relation to this agreement
or any part of it (including the Warranties) or the subject matter
of the transactions under it.
Buyer Group means the Buyer and its Related Bodies Corporate,
including from Completion, the Group, and Buyer Group Company must
be construed accordingly.
Buyer Tax Claim Or Action means any Buyer Claim Or Action under
section 11 of the Warranties.
Claim includes any allegation, debt, cause of action, Liability,
claim, proceeding, suit or demand of any nature howsoever arising
and whether present or future, fixed or unascertained, actual or
contingent, whether at law, in equity, under statute or otherwise.
Claimed Amount is defined in clause 5.23 ("Unagreed Claims notice").
Company means Techpac Holdings Limited, incorporated in Bermuda.
Completion means completion of the sale and purchase of the Shares
in accordance with clause 4 ("Completion") and Complete has a
corresponding meaning.
Completion Date means the day Completion occurs.
Conditions Precedent means the conditions precedent set out in
clause 3.1 ("Conditions Precedent").
Confidential Information means all Information disclosed to the
Receiving Party or any Related Entity or Representative of the
Receiving Party, under or in connection with this agreement,
including:
(a) information which, either orally or in writing, is designated or
indicated as being the proprietary or confidential information
of the Disclosing Party or any of its Related Entities;
(b) information derived or produced partly or wholly from the
Information including any calculation, conclusion, summary or
computer modelling; and
(c) information which is capable of protection at law or equity as
confidential information,
whether the Information was disclosed:
(d) orally, in writing or in electronic or machine readable form;
(e) before, on or after the date of this agreement;
(f) as a result of discussions between the parties concerning or
arising out of the acquisition of the Business; or
49
(g) by the Disclosing Party or any of its Representatives, any of
its Related Entities, any Representatives of its Related
Entities or by any third person.
Constitution means the constitution, memorandum and articles of
association, bye-laws (as applicable) or other equivalent
constitutional document(s) relating to a Group Company.
Control has the meaning given to it by section 50AA of the
Corporations Act and Controlled must be construed accordingly.
Corporations Act means the Corporations Act 2001 (Cwlth) of
Australia.
Data Room means the physical data room located at Mallesons Stephen
Jaques on Level 18, Governor Macquarie Tower, Sydney NSW 2000.
Data Room Documentation means all documentation in the Data Room as
listed in the index annexed to this agreement as Annexure B.
Disclosing Party means the party disclosing Confidential
Information.
Disclosure Letter means the letter from the Seller Representative
addressed to the Buyer and dated and delivered to it before the date
of this agreement and includes all of its schedules and annexures.
Disclosure Material means the Data Room Documentation and the
Disclosure Letter.
Due Diligence means the enquiries and investigation into the Group
carried out by the Buyer and its Representatives prior to the date
of this agreement.
Encumbrance means an interest or power:
(a) reserved in or over any interest in any asset including, without
limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a bill of sale, mortgage, charge, lien, pledge,
trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and any
interest, right or power arising from any option, equity,
preferential interest, adverse interest or third party claim or
right of any kind and whether existing or agreed to be granted or
created.
Escrow Account means an interest bearing account with such bank or
other financial institution in Bermuda as may be agreed between the
Seller Representative and the Buyer in the name of the Agent as
trustee for the Seller and the Buyer administered by the Agent in
accordance with this agreement and the Escrow Deed.
Escrow Account Balance means at the relevant time and from time to
time, the principal amount credited to the Escrow Account (to avoid
doubt, excluding any interest on that principal amount).
50
Escrow Amount means an amount equal to $35 million.
Escrow Amount Payment Date means each of:
(a) the Escrow First Payment Date; and
(b) the Escrow Second Payment Date.
Escrow Buyer Claim Or Action means a Buyer Claim Or Action notified
under clause 9.4 ("Notice of Claims") where the notice includes an
election under clause 9.4(d).
Escrow Deed means the escrow deed referred to in clause 5.18(c).
Escrow First Payment Date means 1 March 2005.
Escrow Second Payment Date means 28 February 2006.
Estimated Net Tangible Assets means the amount estimated by the
Seller as the amount of the Net Tangible Assets at Adjustment
Statement Date, being $68,831,000, as set out in Schedule 6
("Adjustment Statement").
Estimated Purchase Price means an amount equal to the sum of the
Goodwill Amount and the Estimated Net Tangible Assets.
Excluded Information means Confidential Information which:
(a) is in or becomes part of the public domain other than through
breach of this agreement or an obligation of confidence owed to
the Disclosing Party or any Related Entity of the Disclosing
Party;
(b) the Receiving Party can prove by contemporaneous written
documentation was already known to it at the time of disclosure
by the Disclosing Party or its Related Entities or
Representatives (unless such knowledge arose from disclosure of
information in breach of an obligation of confidentiality); or
(c) the Receiving Party acquires from a source other than the
Disclosing Party or any Related Entity or Representative of the
Disclosing Party where such source is entitled to disclose it.
FIRB means the Foreign Investment Review Board of Australia.
Fundamental Claim means any Warranty Claim for breach of a
Fundamental Warranty.
Fundamental Warranty means each of the Warranties in sections 1, 2
and 3 of the Warranties set out in Schedule 5 ("Warranties").
General Claim means any Warranty Claim which is not a Fundamental
Claim.
Goodwill Amount means the amount of $437,426,000.
51
Government Agency means any government, governmental,
semi-governmental, administrative, fiscal or judicial body
department, commission, authority, tribunal, agency or entity in any
jurisdiction of incorporation of any Group Company or to which any
Group Company is subject and includes any other person authorised by
law to give consents or impose requirements in connection with the
Environment.
Group means the Company and the Subsidiaries.
Group Company means any member of the Group.
GST Act means the A New Tax System (Goods and Services Tax) Act
1999.
GST, GST Law have the meanings used in the GST Act or any
replacement, recoupment or other relevant legislation and
regulations, except that "GST Law" also includes any applicable
rulings issued by the Commissioner of Taxation and any value added
Tax, consumption Tax or indirect Tax law having a similar or
corresponding object or effect to the GST Law (within the meaning in
the GST Act) in any jurisdiction. Any reference to GST payable by
the Seller includes any GST payable by the representative member of
any GST group of which the Seller is a member.
Hagemeyer Contracts and Hagemeyer Disclosure Letter means the "Share
Sale Agreement" between Tech Pacific International B.V., Techpac Pty
Limited, Hagemeyer N.V., Hagemeyer Caribbean Holding N.V. and
Techpac Holdings Limited dated 12 June 2003 and the "New Zealand
Share Sale Agreement" between Tech Pacific Australia Pty Limited,
Tech Pacific Holdings Pty Limited, Tech Pacific Holdings (NZ)
Limited dated 12 June 2003 and the disclosure letter from Techpac
Pty Limited and Tech Pacific International B.V. dated 12 June 2003
annexed to this agreement as Annexure D.
Hagemeyer Sale Agreement means the "Share Sale Agreement" referred
to in the definition of Hagemeyer Contracts and Hagemeyer Disclosure
Letter.
Incoming Directors means the persons nominated by the Buyer (by
written notice to the Seller Representative at least 5 Business Days
prior to the Completion Date) to be directors and officers of the
Company and/or any Subsidiary from Completion.
Incoming Secretaries means the persons nominated by the Buyer (by
written notice to the Seller Representative at least 5 Business Days
prior to the Completion Date) to be a company secretary of the
Company and/or any Subsidiary from Completion.
Independent Expert has the meaning given in clause 5.14(c)
("Adjustment Amount disputes").
Information means all information regardless of its material form
relating to or developed in connection with:
(a) the business, technology or other affairs of the Disclosing
Party or any Related Entity of the Disclosing Party, or in the
case of the Seller only, the Group or any Group Company; or
52
(b) any systems, technology, ideas, concepts, know-how, techniques,
designs, specifications, blueprints, tracings, diagrams, models,
functions, capabilities and designs (including computer
software, manufacturing processes or other information embodied
in drawings or specifications), intellectual property or any
other information which is marked "confidential" or is otherwise
indicated to be subject to an obligation of confidence owned or
used by or licensed to the Disclosing Party or a Related Entity
of the Disclosing Party, or in the case of the Seller only, the
Group or any Group Company.
A person is Insolvent if:
(a) it is (or states that it is) an insolvent under administration
or insolvent (each as defined in the Corporations Act); or
(b) it has had a Controller appointed or is in liquidation, in
provisional liquidation, under administration or wound up or has
had a Receiver appointed to any part of its property; or
(c) it is subject to any arrangement, assignment, moratorium or
composition, protected from creditors under any statute or
dissolved (in each case, other than to carry out a
reconstruction or amalgamation while solvent on terms approved
by the other parties to this agreement); or
(d) an application or order has been made (and in the case of an
application, it is not stayed, withdrawn or dismissed within 30
days), resolution passed, proposal put forward, or any other
action taken, in each case in connection with that person, which
is preparatory to or could result in any of (a), (b) or (c)
above; or
(e) it is taken (under section 459F(1) of the Corporations Act) to
have failed to comply with a statutory demand; or
(f) it is the subject of an event described in section 459C(2)(b) or
section 585 of the Corporations Act (or it makes a statement
from which another party to this agreement reasonably deduces it
is so subject); or
(g) it is otherwise unable to pay its debts when they fall due; or
(h) something having a substantially similar effect to (a) to (g)
happens in connection with that person under the law of any
jurisdiction.
Law includes:
(a) any law, regulation, authorisation, ruling, judgment, order or
decree of any Governmental Agency; and
(b) any statute, regulation, proclamation, ordinance or by-law in:
(i) Australia; or
(ii) any other jurisdiction.
53
Liability means any liability (whether actual, contingent or
prospective), including for any Loss irrespective of when the acts,
events or things giving rise to the liability occurred.
Loss means all damage, loss, cost, and expense (including legal
costs and expenses of whatsoever nature or description).
Management Seller means each of the Sellers other than CVC Capital
Partners Asia Pacific LP, Asia Investors LLC and Hagemeyer Caribbean
Holding NV.
Management Seller Representative means either of Shailendra Gupta or
Guy Freeland.
Material Contract means a contract which is material to the business
of any Group Company.
Material Operating Subsidiaries means Tech Pacific Australia Pty
Limited, Tech Pacific (N.Z.) Limited, First Tech Pacific
Distributors Sdn Bhd, Tech Pacific (Singapore) Limited, Tech Pacific
(Thailand) Co. Limited, Tech Pacific (HK) Limited, Tech Pacific
India Limited and Tech Pacific India (Exports) Pte Limited.
Mezzanine Agreement means the subordinated subscription agreement
dated 11 June 2003 (as subsequently amended) under which Techpac
Holdings (Australia) Pty Limited and Tech Pacific Holdings (NZ)
Limited borrow certain amounts from the Participants (as those
persons are described in that agreement).
Mezzanine Debt Amount means the amount required to repay in full the
Mezzanine Loan including any interest (including PIK interest) and
any prepayment penalties required to be made on such repayment in
full on the Completion Date.
Mezzanine Lenders means the Participants (as those persons are
described in the Mezzanine Agreement).
Mezzanine Loan has the meaning it has in the Mezzanine Agreement.
Net Tangible Assets means the consolidated net tangible assets of
the Group as at the relevant date calculated as the amount of
"Shareholders equity" less the amount of "Intangible Assets" shown
in the relevant consolidated balance sheet of the Group.
Net Tangible Assets at Adjustment Statement Date means the amount of
the Net Tangible Assets at the Adjustment Statement Date as shown in
the Adjustment Statement.
Notional Interest Amount means:
(a) if the Scheduled Completion Date is on or before the 15th day of
a calendar month, an amount equal to notional interest of 9% per
annum (accruing on a daily basis based on a 365 day year) on the
Estimated Purchase Price for the period from and including the
day
54
after the Adjustment Statement Date to and including the
Completion Date; and
(b) if the Scheduled Completion Date is after the 15th day of a
calendar month, an amount equal to $NIL.
Ordinary Shares means the Shares that are ordinary shares in the
capital of the Company.
Outstanding Escrow Buyer Claims Or Actions means Agreed Claims that
are unpaid at the relevant Escrow Amount Payment Date and Unagreed
Claims to the extent of Claimed Amounts that are unpaid at the
relevant Escrow Amount Payment Date.
Permitted Encumbrance means the Encumbrances listed in Annexure C.
Personal Information means information or an opinion (including
information or an opinion forming part of a database), whether true
or not, and whether recorded in a material form or not, about an
individual whose identity is apparent, or can reasonably be
ascertained, from the information or opinion.
Personal Warranties means the Warranties in sections 1.2 to 1.6
(inclusive), 2.1 to 2.5 (inclusive), 13 and 15 in Schedule 5
("Warranties").
PIK Interest has the meaning it has in the Mezzanine Agreement.
Preference Shares means the Shares that are redeemable preference
shares in the capital of the Company.
Privacy Laws means:
(a) the Privacy Act 1988 (Cwlth) of Australia;
(b) any other requirement under Australian or any other
jurisdiction's law, industry code, policy or statement relating
to the handling of Personal Information and applicable to any
Group Company.
Public Register Information means all information which is available
publicly 3 Business Days before the date of this agreement by
performing the searches set out in Schedule 9 ("Public Register
Information").
Purchase Price means the aggregate consideration payable for the
Shares calculated in accordance with clause 2.1 ("Purchase Price").
Receiver includes a receiver or a receiver and manager.
Receiving Party means the recipient of Confidential Information.
Records means originals and copies, in machine readable or printed
form, of all books, files, reports, records, correspondence,
documents and other material of or relating to or used in connection
with the Group including:
55
(a) minute books, statutory books and registers including the
Company's share register and directors and officers register,
books of account and copies of taxation returns;
(b) sales literature, market research reports, brochures and other
promotional material (including printing blocks, negatives,
sound tracks and associated material);
(c) all sales and purchasing records, contracts, designs and working
papers;
(d) all trading and financial records; and (e) lists of all regular
suppliers and customers.
Related Body Corporate has the meaning it has in the Corporations
Act.
Related Entity has the meaning it has in the Corporations Act.
Remaining Debt means all indebtedness of or other financial
accommodation to the Group Companies at Completion (including
securitisation programmes) except for that relating to the Mezzanine
Loan.
Representative of a party includes an employee, agent, officer,
director, adviser, partner, joint venturer or sub-contractor of that
party.
Respective Proportion in relation to a Seller, means that percentage
of the relevant amount calculated as:
A
a Seller's Respective Proportion = ---
B
expressed as a percentage where:
A = the amount of the Purchase Price payable to the Seller for all
its Shares calculated in accordance with clause 2.2 ("Allocation
of Purchase Price"); and
B = the Purchase Price.
Restraint Area means Australia, Hong Kong, India, Malaysia, New
Zealand, Singapore and Thailand.
Restraint Period means the period 2 years from the date of the
Completion Date.
Retiring Directors means the existing directors and officers of the
Company and each Subsidiary.
Retiring Secretaries means the existing company secretaries of the
Company and each Subsidiary.
Revenue Authority means any taxing or other authority responsible
for the implementation, administration, collection, or enforcement
of Taxation in any applicable jurisdiction.
56
Scheduled Completion Date means:
(a) if the Unconditional Date is on or before the 15th day of a
calendar month, that day (or if not a Business Day, the next
Business Day); and
(b) if the Unconditional Date is after the 15th day of a calendar
month, the last day of that calendar month, except that if the
Unconditional Date is after 15 December 2004, 4 January 2005.
Securities means shares, debentures, stocks, bonds, notes, interests
in a managed investment scheme, units, warrants, options, derivative
instruments or any other securities.
Seller means each of the persons listed in Schedule 1 ("Seller
Details").
Seller Representative means CVC Capital Partners Asia Pacific LP and
Asia Investors LLC.
Shareholders Agreement Termination Deed means the termination deed
between the parties to the Shareholders Agreement relating to the
Company dated 12 June 2003, terminating that shareholders agreement
with effect from Completion and releasing the Company from any
Claims which any shareholder in the Company may have now or in
future in connection with that shareholders agreement.
Shares means all of the issued shares (of any class) in the capital
of the Company and Share means any one of those shares.
Stocktake means the stocktake referred to in clause 5.2
("Stocktake").
Subsidiaries means any subsidiaries of the Company and Subsidiary
means any one of those bodies corporate.
Tax means any tax, levy, charge, impost, duty, fee, deduction,
compulsory loan or withholding, which is assessed, levied, imposed
or collected by any Government Agency in any jurisdiction 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 and Taxes and Taxation have corresponding meanings.
Tax Act means as the context requires, the Income Tax Assessment Act
1936 and/or the Income Tax Assessment Act 1997 and, to the extent
applicable, the Taxation Administration Act 1953 and includes Tax
laws having a similar or corresponding object or effect in any
jurisdiction.
Tax Group means any group of entities treated for Tax purposes in
any jurisdiction as a group consolidated for Tax purposes.
Tax Law means:
(a) as the context requires, any one or more of the Income Tax
Assessment Act 1936 (C'th), the Income Tax Assessment Act 1997
(C'th), the Fringe Benefits Tax Assessment Act 1986, the
Taxation Administration Act 1953, the International Tax
Agreements Act 1953
57
and Commonwealth tax rates Acts, together with all regulations
and subordinate legislation made under or relating to those
Acts, and includes Tax laws having a similar or corresponding
object or effect in any jurisdiction; and
(b) includes Taxation legislation in force from time to time
relating to the assessment, imposition and collection of Taxes,
the administration of that Taxation legislation, and all
subordinate legislation, regulations and instruments made under
or relating to such legislation, and includes Tax laws having a
similar or corresponding object or effect in any jurisdiction.
Tax Period means income year, Tax year, franking year under the Tax
Law and/or tax period under the GST Law, as applicable, and any part
of any such period or year (including a substituted accounting
period) or any period or time relevant to Taxation.
Tax Return means any declaration, form, notice, document, schedule,
instrument, report, information, claim for refund, application,
information return or statement relating to Taxes filed or lodged,
physically, electronically or by other means, in any jurisdiction in
connection with or for purposes of the assessment, refund,
self-assessment or imposition of Tax with respect to any Tax payable
under any Tax Law, by withholding, instalment, set-off or payment,
in relation to any Tax Period in any applicable jurisdiction.
Tax Warranty means the warranties given by the Sellers set out in
section 11 of Schedule 5 ("Warranties").
Trade Practices Act means the Trade Practices Act 1974 ("Cwlth") of
Australia.
Treasurer means the Treasurer of the Commonwealth of Australia.
Unagreed Claim means any Escrow Buyer Claim Or Action that is not an
Agreed Claim.
Unconditional Date means the first Business Day after all of the
Conditions Precedent are satisfied or waived.
US GAAP means accounting principles generally accepted in the United
States of America.
US GAAP Financial Statements means:
(a) audited consolidated financial statements of the Group for the
year ended 31 December 2003 and unaudited consolidated financial
statements for the 9 month periods to 30 September 2003 and 30
September 2004; and
(b) if the pre-tax income (in US dollars) of the Group calculated in
accordance with US GAAP for the year ended 31 December 2003 is
more than US$46.3 million, audited consolidated financial
statements of the Group for the year ended 31 December 2002,
58
prepared by the Company in accordance with US GAAP and Regulation
S-X of the 1934 Securities Exchange Act.
Warranties means the warranties and representations set out in
Schedule 5 ("Warranties") and Warranty has a corresponding meaning.
Warranty Claim means any Claim for breach of any of the Warranties.
25.2 References to certain general terms
Unless the contrary intention appears, a reference in this agreement
to:
(a) (clauses, annexures and schedules) a clause, annexure or
schedule is a reference to a clause in or annexure or schedule
to this agreement;
(b) (variations or replacements) a document (including this
agreement) includes any variation or replacement of it;
(c) (reference to statutes) a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or replacements of any
of them;
(d) (singular includes plural) the singular includes the plural and
vice versa;
(e) (person) the word "person" includes an individual, a firm, a
body corporate, a partnership, joint venture, an unincorporated
body or association, or any Government Agency;
(f) (executors, administrators, successors) a particular person
includes a reference to the person's executors, administrators,
successors, substitutes (including persons taking by novation)
and assigns;
(g) (two or more persons) an agreement, representation or Warranty
in favour of two or more persons is for the benefit of them
jointly and each of them individually;
(h) (jointly and individually) an agreement, representation or
warranty on the part of two or more persons binds them jointly
and each of them individually but an agreement, representation
or warranty of the Seller binds each Seller individually only;
(i) (dollars) Australian dollars, dollars, $ or A$ is a reference to
the lawful currency of Australia;
(j) (calculation of time) if a period of time dates from a given day
or the day of an act or event, it is to be calculated exclusive
of that day;
(k) (reference to a day) a day is to be interpreted as the period of
time commencing at midnight and ending 24 hours later;
(l) (accounting terms) an accounting term in respect of a
corporation is a reference to that term as it is used in
Australian Accounting Standards in respect of a corporation or,
if not inconsistent with those
59
standards, in accounting principles and practices generally
accepted in the place of incorporation of the corporation;
(m) (reference to a group of persons) a group of persons or things
is a reference to any two or more of them jointly and to each of
them individually;
(n) (meaning not limited) the words "include", "including", "for
example" or "such as" are not used as, nor are they to be
interpreted as words of limitation, and when introducing an
example, do not limit the meaning of the words to which the
example relates to that example or examples of a similar kind;
(o) (next day) if an act under this agreement to be done by a party
on or by a given day is done after 5.30 pm on that day, it is
taken to be done on the next day;
(p) (next Business Day) if an event must occur on a stipulated day
which is not a Business Day then the stipulated day will be
taken to be the next Business Day;
(q) (time of day) time is a reference to Sydney time;
(r) (reference to anything) anything (including any amount) is a
reference to the whole and each part of it;
(s) (indemnity) references to "indemnify" or "indemnifying" (and
other grammatical forms of that word) any person against any
circumstance or occurrence will be construed to include
indemnifying and keeping indemnified that person and holding
that person harmless to the fullest extent permitted by law from
and against all demands, claims, actions, suits, proceedings,
judgments, orders and decrees from time to time made or taken
against or affecting that person and all Liabilities, whatsoever
and howsoever made, suffered or incurred by that person as a
consequence of or which would not have arisen but for that
circumstances or occurrence;
(t) (knowledge of Buyer) any statement expressed to be qualified by
reference to the knowledge or awareness of the Buyer is deemed
to be qualified by reference only to the actual knowledge,
belief and awareness of the following persons: Kent Foster, Greg
Spierkel, Tom Madden, Larry Boyd, Chris Arscott, Laurence
O'Loughlin, Bill Humes, Alain Monie, Ken Miltimore, Edmond
Cheung, David Minns and Sean Fort; and
(u) (knowledge of Seller) where any Warranty is expressed to be made
in terms of "So far as the Seller is aware" or "to the best of
the knowledge, information or belief of the Seller" or similar
phrases, the Seller is deemed to have the knowledge only of
anything of which any of the directors of the Company, the Chief
Executive Officer, the Chief Financial Officer, the Chief
Information Officer, the Country Managers of the Group and the
Country Chief Financial Officers of the Group has actual
knowledge after giving careful consideration
60
and making due enquiry in relation to the Warranties or
provisions concerned.
25.3 Headings
Headings (including those in brackets at the beginning of
paragraphs) are for convenience only and do not affect the
interpretation of this agreement.
EXECUTED as an agreement.
61
Project Phoenix - Share Sale Agreement
Schedule 1 - Seller details
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
CVC Capital Partners Asia Pacific
LP [omitted]
- --------------------------------------------------------------------------------
Asia Investors LLC [omitted]
- --------------------------------------------------------------------------------
Hagemeyer Caribbean Holding NV [omitted]
- --------------------------------------------------------------------------------
Shailendra Gupta [omitted]
- --------------------------------------------------------------------------------
Guy Anthony Freeland [omitted]
- --------------------------------------------------------------------------------
Ramesh Mullappillil Nair [omitted]
- --------------------------------------------------------------------------------
Kerry Alexander Peart-Baillie [omitted]
- --------------------------------------------------------------------------------
Jaishankar Krishnan [omitted]
- --------------------------------------------------------------------------------
Anthony Roy Butler [omitted]
- --------------------------------------------------------------------------------
Michael Lee Kim Ming [omitted]
- --------------------------------------------------------------------------------
Daniel Chan Jenn Yaw [omitted]
- --------------------------------------------------------------------------------
Weera Wongsapkana [omitted]
- --------------------------------------------------------------------------------
Geoffrey William Kinghorn and
Janine Kinghorn as trustees for the
Geoff Kinghorn Superannuation
Fund [omitted]
- --------------------------------------------------------------------------------
Graham Pickles [omitted]
- --------------------------------------------------------------------------------
Anthony Roy Butler as trustee for the
Norgrove Farm Trust [omitted]
- --------------------------------------------------------------------------------
Keith Jerome Pinto [omitted]
- --------------------------------------------------------------------------------
Walters Consulting Services Pty
Limited as trustee for Walters Family
Trust [omitted]
- --------------------------------------------------------------------------------
Narelle Velling [omitted]
- --------------------------------------------------------------------------------
Lorraine Cowan [omitted]
- --------------------------------------------------------------------------------
Patricia Zdenka Unkovich [omitted]
- --------------------------------------------------------------------------------
Marlene Thomson [omitted]
- --------------------------------------------------------------------------------
Mark A Franklin and Narelle Robyn
Franklin as trustees for the
M Franklin Superannuation Fund [omitted]
- --------------------------------------------------------------------------------
Elizabeth Wolahan [omitted]
- --------------------------------------------------------------------------------
Simon Epeli Kacimaiwai [omitted]
- --------------------------------------------------------------------------------
Sirius Laboratories Pty Ltd as trustee
for The Cottrell Superannuation Fund [omitted]
- --------------------------------------------------------------------------------
Lynette Anne Deutrom [omitted]
- --------------------------------------------------------------------------------
62
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Paul Joseph Williams and Shelley
May Caroline Williams as trustee for
The Williams Superannuation Fund [omitted]
- --------------------------------------------------------------------------------
Suzanne Phyllis Tenaglia [omitted]
- --------------------------------------------------------------------------------
Stewart Leslie Goodier and Sylvie
France Goodier [omitted]
- --------------------------------------------------------------------------------
Glenn David Coutts [omitted]
- --------------------------------------------------------------------------------
Michelle Marilyn Tolmie [omitted]
- --------------------------------------------------------------------------------
Dipak Ashar [omitted]
- --------------------------------------------------------------------------------
K Venkat [omitted]
- --------------------------------------------------------------------------------
Sanjay Achawal [omitted]
- --------------------------------------------------------------------------------
M Mohapatra [omitted]
- --------------------------------------------------------------------------------
Bimal Das [omitted]
- --------------------------------------------------------------------------------
Atul Gaur [omitted]
- --------------------------------------------------------------------------------
Sanjay Mittal [omitted]
- --------------------------------------------------------------------------------
Aloysius Fernandes [omitted]
- --------------------------------------------------------------------------------
Pankaj Gauba [omitted]
- --------------------------------------------------------------------------------
Harish Laddha [omitted]
- --------------------------------------------------------------------------------
Blase D'Souza [omitted]
- --------------------------------------------------------------------------------
Ketan Doshi [omitted]
- --------------------------------------------------------------------------------
Jayant Rastogi [omitted]
- --------------------------------------------------------------------------------
F A Faruqui [omitted]
- --------------------------------------------------------------------------------
Cyrus Patel [omitted]
- --------------------------------------------------------------------------------
K Rajan [omitted]
- --------------------------------------------------------------------------------
Vivienne Larsen [omitted]
- --------------------------------------------------------------------------------
Martyn James Smith [omitted]
- --------------------------------------------------------------------------------
Gary Stephen Bigwood [omitted]
- --------------------------------------------------------------------------------
William Stark [omitted]
- --------------------------------------------------------------------------------
Scott Cowen [omitted]
- --------------------------------------------------------------------------------
Bruce Pain [omitted]
- --------------------------------------------------------------------------------
Rick Jansen [omitted]
- --------------------------------------------------------------------------------
63
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Lawrence Lee Man Lung [omitted]
- --------------------------------------------------------------------------------
Simon Cheung Chan Yuen [omitted]
- --------------------------------------------------------------------------------
Khuen Chee Wong [omitted]
- --------------------------------------------------------------------------------
Andrew Tan Woo Chye [omitted]
- --------------------------------------------------------------------------------
Esther Teo Hui Ling [omitted]
- --------------------------------------------------------------------------------
Rosalind Quek Gek Lin [omitted]
- --------------------------------------------------------------------------------
Jonathan To Poh Teck [omitted]
- --------------------------------------------------------------------------------
June Foo Ting Ting [omitted]
- --------------------------------------------------------------------------------
Richard Ng Choon Chuat [omitted]
- --------------------------------------------------------------------------------
Tay Boon Tiang [omitted]
- --------------------------------------------------------------------------------
Chen Choong Fatt [omitted]
- --------------------------------------------------------------------------------
Richard Peh Teck Meng [omitted]
- --------------------------------------------------------------------------------
Sidtra Chanprom [omitted]
- --------------------------------------------------------------------------------
Theerasak Jindapanpong [omitted]
- --------------------------------------------------------------------------------
Montri Satchamane [omitted]
- --------------------------------------------------------------------------------
Peerapong Pornpramintr [omitted]
- --------------------------------------------------------------------------------
Pillutla Ganesh [omitted]
- --------------------------------------------------------------------------------
Sunil Sawant [omitted]
- --------------------------------------------------------------------------------
Choo Hock Leong [omitted]
- --------------------------------------------------------------------------------
Janine Kinghorn [omitted]
- --------------------------------------------------------------------------------
64
Project Phoenix - Share Sale Agreement
Schedule 2 - Shares
The Shares in the Company are held by the Seller as follows:
- --------------------------------------------------------------------------------
Number Number of
of Ordinary Preference
No. Shareholder Shares Shares
- --------------------------------------------------------------------------------
1 CVC Capital Partners Asia 387,556 59,051,611
Pacific LP
- --------------------------------------------------------------------------------
2 Asia Investors LLC 193,778 29,525,805
- --------------------------------------------------------------------------------
3 Hagemeyer Caribbean Holding 315,000 47,801,250
NV
- --------------------------------------------------------------------------------
4 Shailendra Gupta 18,780 34,091
- --------------------------------------------------------------------------------
5 Guy Anthony Freeland 9,024 25,340
- --------------------------------------------------------------------------------
6 Ramesh Mullappillil Nair 3,000 39,445
- --------------------------------------------------------------------------------
7 Kerry Alexander Peart-Baillie 8,300 5,283
- --------------------------------------------------------------------------------
8 Jaishankar Krishnan 4,000 42,520
- --------------------------------------------------------------------------------
9 Anthony Roy Butler 7,000
- --------------------------------------------------------------------------------
10 Michael Lee Kim Ming 3,000 68,571
- --------------------------------------------------------------------------------
11 Daniel Chan Jenn Yaw 3,000 25,744
- --------------------------------------------------------------------------------
12 Weera Wongsapkana 1,600 46,400
- --------------------------------------------------------------------------------
13 Geoffrey William Kinghorn and 3,000 12,000
Janine Kinghorn as trustees for
the Geoff Kinghorn
Superannuation Fund
- --------------------------------------------------------------------------------
14 Graham Pickles 3,666 196,334
- --------------------------------------------------------------------------------
15 Anthony Roy Butler as trustee 94,667
for the Norgrove Farm Trust
- --------------------------------------------------------------------------------
16 Keith Jerome Pinto 500 14,500
- --------------------------------------------------------------------------------
65
- --------------------------------------------------------------------------------
Number Number of
of Ordinary Preference
No. Shareholder Shares Shares
- --------------------------------------------------------------------------------
17 Walters Consulting Services 1,100 31,900
Pty Limited as trustee for
Walters Family Trust
- --------------------------------------------------------------------------------
18 Narelle Velling 1,100 31,900
- --------------------------------------------------------------------------------
19 Lorraine Cowan 1,100 31,900
- --------------------------------------------------------------------------------
20 Patricia Zdenka Unkovich 700 20,300
- --------------------------------------------------------------------------------
21 Marlene Thomson 1,100 31,900
- --------------------------------------------------------------------------------
22 Mark A Franklin and Narelle 1,100 31,900
Robyn Franklin as trustees for
the M Franklin Superannuation
Fund
- --------------------------------------------------------------------------------
23 Elizabeth Wolahan 500 14,500
- --------------------------------------------------------------------------------
24 Simon Epeli Kacimaiwai 700 20,300
- --------------------------------------------------------------------------------
25 Sirius Laboratories Pty Ltd as 700 20,300
trustee for The Cottrell
Superannuation Fund
- --------------------------------------------------------------------------------
26 Lynette Anne Deutrom 700 20,300
- --------------------------------------------------------------------------------
27 Paul Joseph Williams and 700 20,300
Shelley May Caroline Williams
as trustee for The Williams
Superannuation Fund
- --------------------------------------------------------------------------------
28 Suzanne Phyllis Tenaglia 500 14,500
- --------------------------------------------------------------------------------
29 Stewart Leslie Goodier and 167 4,833
Sylvie France Goodier
- --------------------------------------------------------------------------------
30 Glenn David Coutts 500 14,500
- --------------------------------------------------------------------------------
31 Michelle Marilyn Tolmie 333 9,667
- --------------------------------------------------------------------------------
32 Dipak Ashar 1,300 12,700
- --------------------------------------------------------------------------------
33 K Venkat 1,100 16,900
- --------------------------------------------------------------------------------
34 Sanjay Achawal 1,100 16,900
- --------------------------------------------------------------------------------
66
- --------------------------------------------------------------------------------
Number Number of
of Ordinary Preference
No. Shareholder Shares Shares
- --------------------------------------------------------------------------------
35 M Mohapatra 800 13,200
- --------------------------------------------------------------------------------
36 Bimal Das 800 13,200
- --------------------------------------------------------------------------------
37 Atul Gaur 700 10,300
- --------------------------------------------------------------------------------
38 Sanjay Mittal 700 10,300
- --------------------------------------------------------------------------------
39 Aloysius Fernandes 700 10,300
- --------------------------------------------------------------------------------
40 Pankaj Gauba 600 17,400
- --------------------------------------------------------------------------------
41 Harish Laddha 600 17,400
- --------------------------------------------------------------------------------
42 Blase D'Souza 400 11,600
- --------------------------------------------------------------------------------
43 Ketan Doshi 500 14,500
- --------------------------------------------------------------------------------
44 Jayant Rastogi 190 5,510
- --------------------------------------------------------------------------------
45 F A Faruqui 400 11,600
- --------------------------------------------------------------------------------
46 Cyrus Patel 400 11,600
- --------------------------------------------------------------------------------
47 K Rajan 400 11,600
- --------------------------------------------------------------------------------
48 Vivienne Larsen 1,200 34,800
- --------------------------------------------------------------------------------
49 Martyn James Smith 1,100 31,900
- --------------------------------------------------------------------------------
50 Gary Stephen Bigwood 700 20,300
- --------------------------------------------------------------------------------
51 William Stark 700 20,300
- --------------------------------------------------------------------------------
52 Scott Cowen 700 20,300
- --------------------------------------------------------------------------------
53 Bruce Pain 700 20,300
- --------------------------------------------------------------------------------
54 Rick Jansen 700 20,300
- --------------------------------------------------------------------------------
55 Lawrence Lee Man Lung 1,000 29,000
- --------------------------------------------------------------------------------
56 Simon Cheung Chan Yuen 700 20,300
- --------------------------------------------------------------------------------
57 Khuen Chee Wong 830 24,070
- --------------------------------------------------------------------------------
58 Andrew Tan Woo Chye 670 19,430
- --------------------------------------------------------------------------------
59 Esther Teo Hui Ling 670 19,430
- --------------------------------------------------------------------------------
60 Rosalind Quek Gek Lin 500 14,500
- --------------------------------------------------------------------------------
61 Jonathan To Poh Teck 500 14,500
- --------------------------------------------------------------------------------
62 June Foo Ting Ting 400 11,600
- --------------------------------------------------------------------------------
63 Richard Ng Choon Chuat 1,000 29,000
- --------------------------------------------------------------------------------
64 Tay Boon Tiang 700 20,300
- --------------------------------------------------------------------------------
65 Chen Choong Fatt 500 14,500
- --------------------------------------------------------------------------------
66 Richard Peh Teck Meng 300 8,700
- --------------------------------------------------------------------------------
67
- --------------------------------------------------------------------------------
Number Number of
of Ordinary Preference
No. Shareholder Shares Shares
- --------------------------------------------------------------------------------
67 Sidtra Chanprom 1,000 29,000
- --------------------------------------------------------------------------------
68 Theerasak Jindapanpong 300 8,700
- --------------------------------------------------------------------------------
69 Montri Satachamane 300 8,700
- --------------------------------------------------------------------------------
70 Peerapong Pornpramintr 300 8,700
- --------------------------------------------------------------------------------
71 Pillutla Ganesh 105 3,045
- --------------------------------------------------------------------------------
72 Sunil Sawant 105 3,045
- --------------------------------------------------------------------------------
73 Choo Hock Leong 1,000 29,000
- --------------------------------------------------------------------------------
74 Janine Kinghorn 426 5,596
- --------------------------------------------------------------------------------
Total 1,000,000 137,996,887
- --------------------------------------------------------------------------------
68
Share Sale Agreement
Schedule 3 - Form of officer release
Parties Company and Officer
- --------------------------------------------------------------------------------
Company Name #full name#
- --------------------------------------------------------------------------------
Reg. No./ #ABN/ACN/ARBN#
ABN/ACN/ARBN
Address #address#
Fax #fax number#
Attention #position#
- --------------------------------------------------------------------------------
Officer Name #full name#
Address #address#
- --------------------------------------------------------------------------------
Recitals A The Officer is [a director/officer/the secretary] of #insert
name and registered number/ACN# (the "Company").
B The Officer will be resigning as [a director/officer/the
secretary] of the Company on completion of the sale of
Techpac Holdings Limited, a Company incorporated in Bermuda,
to #name of Buyer# ("Completion").
C The Company agrees to release the Officer on the terms set
out in this deed.
- --------------------------------------------------------------------------------
Date of deed See Signing page
69
1 Release of Officer
Subject to clause 3 and to the extent permitted by law, the Company
agrees:
(a) to unconditionally release the Officer from all rights and
Claims relating to his employment with or his engagement by the
Company; and
(b) not to issue any proceedings in respect of rights and Claims
relating to employment with or his engagement by the Company.
The Officer may plead this deed in bar to any Claim or proceedings
by the Company or any person claiming on their behalf in respect of
Claims or any matter related thereto other than a Claim in relation
to a breach of this deed by the Officer.
- --------------------------------------------------------------------------------
2 Indemnity
Subject to clause 3, the Company must indemnify the Officer against
all Claims which the Company or any shareholder of the Company has
or may have at any time against the Officer in respect of his
employment with or engagement in the office referred to in Recital A
by the Company and any conduct of the Officer involving or relating
in any way whatsoever to other shareholders of the Company as at
Completion.
[Addition for Hong Kong only]
provided that:
(a) in respect of any civil proceedings brought against the Officer,
judgment is given in favour of the Officer;
(b) in respect of criminal proceedings brought against the Officer,
the Officer is acquitted; or
(c) in respect of any finding by a court that the Officer is or may
be liable in respect of negligence, default, breach of duty or
breach of trust, the court relieves him wholly from such
liability for the reason that, having regard to the
circumstances of the case, the Officer acted honestly and
reasonably.
[Addition for the British Virgin Island only]
, provided that the Officer:
(d) acted honestly and in good faith with a view to the best
interests of the Company; and
(e) in the case of criminal proceedings, had no reasonable cause to
believe that his or her conduct was unlawful.
[Addition for Singapore only]
70
The Company must indemnify the Officer against all Claims which the
Company or any shareholder of the Company has or may have at any
time against the Officer in respect of his employment with or
engagement in the office referred to in Recital A by the Company,
except where any such claims arise due to any negligence, default or
breach of duty or breach of trust of which the officer may be guilty
in relation to the Company, and any conduct of the Officer involving
or relating in any way whatsoever to other shareholders of the
Company as at Completion, except where such conduct involves any
negligence, default, breach of duty or breach of trust of which the
officer may be guilty in relation to the Company.
- --------------------------------------------------------------------------------
3 Limitation
The release in clause 1 and the indemnity in clause 2 shall not
apply in respect of any act or omission on the part of the Officer
arising from the wilful misconduct, gross negligence or dishonesty
of that Officer.
- --------------------------------------------------------------------------------
4 Severability
If the whole or any part of a provision of this deed is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this deed has full force and effect
and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the
severance alters the basic nature of this deed or is contrary to
public policy.
- --------------------------------------------------------------------------------
5 Entire agreement
This deed constitutes the entire agreement of the parties about its
subject matter and supersedes all previous agreements,
understandings and negotiations on that subject matter.
- --------------------------------------------------------------------------------
6 General
6.1 Partial exercising of rights
If a party does not exercise a right or remedy fully or at a given
time, the party may still exercise it later.
6.2 Remedies cumulative
The rights and remedies provided in this deed are in addition to
other rights and remedies given by law independently of this
agreement.
6.3 Rights and obligations are unaffected
Rights given to the parties under this deed and the parties'
liabilities under it are not affected by anything which might
otherwise affect them by law.
71
6.4 Variation and waiver
A provision of this deed or a right created under it, may not be
waived or varied except in writing, signed by the party or parties
to be bound.
6.5 Costs
Each party must pay its reasonable legal costs and expenses in
connection with the preparation, execution and completion of this
deed.
6.6 Supervening legislation
Any present or future legislation which operates to vary the
obligations of a party in connection with this deed with the result
that another party's rights, powers or remedies are adversely
affected (including, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or rendered
ineffective by law.
6.7 Counterparts
This deed may be executed in counterparts. All counterparts when
taken together are to be taken to constitute one instrument.
[Addition for Singapore only]
6.8 Contracts (Rights of Third Parties) Act
A person who is not a party to this deed shall have no rights under
the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce or
enjoy the benefit of any term of this agreement.
- --------------------------------------------------------------------------------
7 Governing law
7.1 Governing law
This deed is governed by the law in force in #insert place#. Each
party submits to the non-exclusive jurisdiction of the courts of
that place.
7.2 Jurisdiction
Each party submits to the non-exclusive jurisdiction of the courts
of #insert place and courts of appeal from them. Each party waives
any right it has to object to an Action being brought in those
courts including, without limitation, by claiming that the Action
has been brought in an inconvenient forum or that those courts do
not have jurisdiction.
7.3 Serving documents
Without preventing any other method of service, any document in an
Action may be served on a party by being delivered or left at that
party's address in the Details.
72
- --------------------------------------------------------------------------------
8 Interpretation
8.1 Definitions
This meaning applies unless the contrary intention appears:
Action means an action, dispute, Claim, demand, investigation,
inquiry, prosecution, litigation, proceedings, arbitration,
mediation or dispute resolution.
Claim means any allegation, debt, cause of action, liability, claim,
proceeding, suit or demand of any nature howsoever arising and
whether present or future, fixed or unascertained, actual or
contingent whether at law, in equity, under statute or otherwise and
which either party has or may have against the other in connection
with the cessation of the Officer's employment with or engagement by
the Company.
[Addition for New Zealand only]
But does not include:
(a) criminal liability; or
(b) in the case of liability incurred in the Officer's capacity as a
director, liability for breach of section 131 of the New Zealand
Companies Act 1993 (the duty of directors to act in good faith
and in the best interests of the Company); or
(c) in the case of liability incurred in his capacity as an
employee, liability for breach of any fiduciary duty of loyalty
or honesty owed to the Company; or
(d) any other liability of the Officer for which the giving of an
indemnity is prohibited by law.
73
EXECUTED as a deed.
DATED:______________________
[Insert Execution clause for Australia]
EXECUTED by #COMPANY )
NAME (UPPERCASE)# in )
accordance with section 127(1) of the )
Corporations Act 2001 (Cwlth) by )
authority of its directors: )
)
)
.........................................) ...................................
Signature of director ) Signature of director/company
) secretary*
) *delete whichever is not applicable
)
.........................................) ...................................
Name of director (block letters) Name of director/company secretary*
(block letters)
*delete whichever is not applicable
[Insert Execution clause for New Zealand]
EXECUTED by #COMPANY )
NAME (UPPERCASE)# by )
authority of its directors: )
)
)
.........................................)
Signature of director )
) ...................................
) Signature of director
)
)
.........................................) ...................................
Name of director (block letters) ) Name of director (block letters)
74
[Insert Execution clause for Belgium]
EXECUTED by TP HOLDINGS BV by: )
)
)
)
.........................................) ...................................
Signature of authorised representative ) Signature of authorised
) representative
)
)
.........................................) ...................................
Office held ) Office held
)
)
.........................................) ...................................
Name of authorised representative ) Name of authorised representative
(block letters) ) (block letters)
[Insert Execution clause for Philippines]
EXECUTED by [insert company name] )
)
)
)
......................................... ...................................
Signature of authorised representative Signature of authorised
representative
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised representative Name of authorised representative
(block letters) (block letters)
75
[Insert Execution clause for Malaysia]
THE COMMON SEAL of # )
COMPANY NAME )
(UPPERCASE)# is duly affixed by )
authority of its directors in the )
presence of:
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
[Insert Execution clause for India]
EXECUTED by TP HOLDINGS )
BV is duly affixed by authority of its )
directors in the presence of: )
)
.........................................
Signature of authorised person
...................................
Signature of authorised person
.........................................
Office held
...................................
Office held
.........................................
Name of authorised person (block letters)
...................................
Name of authorised person
(block letters)
76
[Insert Execution clause for Mauritius]
THE COMMON SEAL of )
#COMPANY NAME )
(UPPERCASE)# is duly affixed by )
authority of its directors in the )
presence of:
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
EXECUTED by #COMPANY )
NAME (UPPERCASE)# by )
authority of its directors: )
)
)
.........................................) ...................................
Signature of director ) Signature of director/company
) secretary*
) *delete whichever is not applicable
)
.........................................) ...................................
Name of director (block letters) ) Signature of director/company
secretary*
*delete whichever is not applicable
77
[Insert Execution clause for Singapore]
THE COMMON SEAL of # )
COMPANY NAME )
(UPPERCASE)# is duly affixed by )
authority of its directors in the )
presence of: )
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
EXECUTED by TECH PACIFIC )
(INDIA) LIMITED by authority of )
its directors: )
)
)
.........................................) ...................................
Signature of director ) Signature of director/company
) secretary*
) *delete whichever is not applicable
)
)
.........................................) ...................................
Name of director (block letters) ) Signature of director/company
) secretary*
) *delete whichever is not applicable
78
[Insert Execution clause for Hong Kong]
THE COMMON SEAL of TECH )
PACIFIC (HONG KONG) )
LIMITED is duly affixed by )
authority of its directors in the )
presence of: )
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
[Insert Execution clause for British Virgin Islands]
THE COMMON SEAL of TECH )
PACIFIC ASIA LIMITED is duly )
affixed by authority of its directors in)
the presence of: )
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
79
[Insert Execution clause for Bermuda]
THE COMMON SEAL of )
TECHPAC HOLDINGS LIMITED )
is duly affixed by authority of its )
directors in the presence of: )
......................................... ...................................
Signature of authorised person Signature of authorised person
......................................... ...................................
Office held Office held
......................................... ...................................
Name of authorised person (block letters) Name of authorised person
(block letters)
80
Schedule 4 - Company and Subsidiaries
Part 1: Company
- ------------------------------------------------------------------------------------------------------------------------------------
Name of Company Registration No. Place of Registered Issued Directors Company Secretary
incorporation office capital
- ------------------------------------------------------------------------------------------------------------------------------------
Techpac Holdings EC No 33664 Bermuda Clarendon House, 1,000,000 Andrew Cummins Scott H Davis
Limited 2 Church Street, ordinary shares Dawn C Griffiths
Hamilton HM 11 (alternate) Michael Ashford
137,996,887 Percy King (Assistant
preference shares Tonya Marshall Secretary)
Graham Pickles
David Ross
Stephen J Rossiter
- ------------------------------------------------------------------------------------------------------------------------------------
81
Share Sale Agreement
Part 2: Subsidiaries
The Subsidiaries of the Company are as follows:
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
Techpac ACN 104 Australia 61-71 Dunning Avenue 45,500,000 A
Holdings 960 465 Rosebery NSW 2018 class redeemable
(Australia) Pty preference shares
Limited
- ------------------------------------------------------------------------------------------------
1,000,000
ordinary shares
- ------------------------------------------------------------------------------------------------
Tech Pacific ABN 37 000 Australia 61-71 Dunning Avenue 20,000 ordinary
Australia Pty 628 400 Rosebery NSW 2018 shares
Limited
618,570 redeemable
preference shares
- ------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- --------------------------------------------------------------------------------------------
Techpac TP Holdings NV - Guy Anthony None
Holdings 45,500,000 Freeland
(Australia) Pty A class redeemable
Limited preference shares
- --------------------------------------------------------------------------------------------
TP Holdings NV - Shailendra Gupta
1,000,000 ordinary
shares
- --------------------------------------------------------------------------------------------
Geoffrey Kinghorn
Kerry Alexander
Peart- Baillie
Tech Pacific Tech Pacific Shailendra Gupta Geoffrey Kinghorn
Australia Pty Holdings Pty
Limited Limited - 20,000
ordinary shares
Tech Pacific Kerry Alexander
Holdings Pty Peart-Baillie
Limited - 618,570
redeemable
preference shares
Guy Anthony
Freeland
Geoffrey Kinghorn
- --------------------------------------------------------------------------------------------
82
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Tech Pacific ABN 49 002 Australia 61-71 Dunning Avenue 429,120 A class
Holdings Pty 956 096 Rosebery NSW 2018 redeemable
Limited preference shares
- ------------------------------------------------------------------------------------------------
50,000 B class
redeemable
preference shares
- ------------------------------------------------------------------------------------------------
64,820 C class
redeemable
preference shares
- ------------------------------------------------------------------------------------------------
188,096 D class
redeemable
preference shares
- ------------------------------------------------------------------------------------------------
24,975,650 ordinary
shares
- ------------------------------------------------------------------------------------------------
Tech Pacific (2) 5519/2538 Thailand No 75 Soi Rubia, 1,000,000 shares
(Thailand) White Group 2 10th with a par value
Company Limited Building, floor, 100 baht each
Sukhumvit 42
Road, Kwang
Phrakhanong,
Khet Klongtoey,
Bangkok
Metropolis
- ------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Holdings (Australia) Shailendra Gupta Geoffrey Kinghorn
Holdings Pty Pty Limited - 429,120 A class
Limited redeemable preference shares
- ---------------------------------------------------------------------------------------------------------------
Techpac Holdings (Australia) Guy Anthony Freeland
Pty Limited - 50,000 B class
redeemable preference shares
- ---------------------------------------------------------------------------------------------------------------
Techpac Holdings (Australia) Kerry Alexander
Pty Limited - 64,820 C class Peart-Baillie
redeemable preference shares
- ---------------------------------------------------------------------------------------------------------------
Techpac Holdings (Australia)
Pty Limited - 188,096 D class
redeemable preference shares
- ---------------------------------------------------------------------------------------------------------------
Techpac Holdings (Australia)
Pty Limited - 24,975,650
ordinary shares
- ---------------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Holdings Limited - Mr Shailendra Gupta None
(Thailand) of 999,994 shares
Company Limited
Mr Graham Lay Pickhurst - 1 Mr Guy Anthony
share Freeland
Mr Shailendra Gupta - 1 share Mr Weera Wongsabkhana
Mr Guy Anthony Freeland - 1 Mr Sitdra Chandphrom
share
Ms Pasukee Sombatthanasuk - 1
share
- ---------------------------------------------------------------------------------------------------------------
83
- --------------------------------------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital Registered shareholders
- --------------------------------------------------------------------------------------------------------------------------------
Mr Weera Wongsabkhana - 1
share
Mr Sithra Chandphrom - 1 share
- ---------------------------------------------------------------------------------------------------------------------------------
TP Holdings EC No 33665 Bermuda Clarendon House, 19,098,000 common Techpac Holdings Limited -
Limited 2 Church Street, shares 19,098,000 common shares
Hamilton
HM 11
- ---------------------------------------------------------------------------------------------------------------------------------
Tech Pacific, Philippines 17th Floor, Liberty 358,060 preferred Tech Pacific Asia Limited -
Inc Center, 104 H.V. shares 358,060 preferred shares
dela Costa Street,
Salcedo Village,
Makati City
25,000 common Tech Pacific Asia Limited -
shares 24,998 common shares
Guy Freeland - 1 common share
Shailendra Gupta - 1 common
share
- ---------------------------------------------------------------------------------------------------------------------------------
TP Holdings NV RPR No Belgium Terhulpsesteenweg 26,458,037 ordinary Tech Pacific Holdings SARL -
0480.324.303 166, 1170 Brussel shares 26,458,036 ordinary shares
Geert Duyck - 1 ordinary share
- ---------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of registered
subsidiary shareholders) Directors Company Secretary
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
TP Holdings Andrew Cummins Scott H Davis
Limited
Dawn C Griffiths Michael Ashford
(alternate) (Assistant secretary)
Percy King
Tonya Marshall
David Ross
Stephen J Rossiter
- -----------------------------------------------------------------------------
Tech Pacific, Guy Freeland Alex Erlito S. Fider
Inc
Shailendra Gupta
- -----------------------------------------------------------------------------
TP Holdings NV Geert Duyck None
Percy King
- ------------------------------------------------------------------------------
84
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Tech Pacific 136340 India Gate No 1A, Godrej 15,780,007 equity
(India) Ltd Industrial Complex, shares
Phirojshanagar,
Eastern Express
Highway, Vikhroli
(East), Mumbai
- ------------------------------------------------------------------------------------------------
Surijami 24957 India Maker Bhavan No 2, 91,449,998 equity
Investment and 5th Floor, New shares
Trading Company Marine Lines,
Ltd Mumbai 400 020
- ------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- ----------------------------------------------------------------------------------------------------------
Andrew Cummins
David Ross
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Mauritius Limited - Mr Krishnan Mr Sudhakar Shetty
(India) Ltd 15,780,000 equity shares Jaishankar
Shailendra Gupta - 1 equity Mr Dipak N Ashar
share
Jaishankar Krishnan - 1 Mr Shailendra Gupta
equity share
Dipak Ashar - 1 equity share Mr Guy Anthony
Freeland
K Venkat - 1 equity share
Sanjay Achawal - 1 equity
share
Mitradutta Mohapatra - 1
equity share
Aloysius Fernandes - 1 equity
share
- ----------------------------------------------------------------------------------------------------------
Surijami Tech Pacific Mauritius Mr Jamnadas V None
Investment and Limited - 35,699,998 equity Thakkar
Trading Company shares
Ltd
- ----------------------------------------------------------------------------------------------------------
85
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------
Tech Pacific 1306735 New Zealand 231-233 Bush Road, 14,815,061 shares
Holdings (NZ) Albany, Auckland
Limited
- ------------------------------------------------------------------------------------------------
Tech Pacific 204636 New Zealand 231-233 Bush Road, 4,009,064 ordinary
(NZ) Limited North Harbour shares
Industrial Estate,
Albany, Auckland
- ------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- ----------------------------------------------------------------------------------------------------------
Techpac Mauritius Mr Bijesh J Thakkar
Limited - 55,750,000
equity shares
Techpac Mauritius Mr Krishnan
Limited - 13,000 Jaishankar
preference shares Shailendra Gupta
Guy Freeland
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Holdings Anthony Butler None
Holdings (NZ) Limited - 14,815,061
Limited ordinary shares
Guy Anthony Freeland
Shailendra Gupta
Vivienne Larsen
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Anthony Butler None
(NZ) Limited Holdings (NZ)
Limited - 4,009,064
ordinary shares
Guy Anthony Freeland
Shailendra Gupta
Vivienne Larsen
- ----------------------------------------------------------------------------------------------------------
86
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
Imagineering 456472 New Zealand 231-233 Bush 400 ordinary shares
New Zealand Road, North
Limited Harbour
Industrial Estate,
Albany, Auckland
- ------------------------------------------------------------------------------------------------
First Tech 155717-X Malaysia Level 11-2, Faber 1,350,000 ordinary
Pacific Imperial Court, shares
Distribution Jalan Sultan Ismail,
Sdn Bhd 50250 Kuala
Lumpur, Malaysia
- ------------------------------------------------------------------------------------------------
Tech Pacific 149001 Hong Kong 28/F, Millennium 4 income shares
(HK) Limited City, 378 Kwun
Tong Road,
Kwun Tong,
Kowloon,
Hong Kong
120,000 ordinary
shares
- --------------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- --------------------------------------------------------------------------------------------------------------
Imagineering Tech Pacific (NZ) Anthony Butler None
New Zealand Limited - 400
Limited ordinary shares
Guy Anthony Freeland
Shailendra Gupta
- --------------------------------------------------------------------------------------------------------------
First Tech Tech Pacific Asia Ltd - Ng Choon Chuat Lim Seck Wah
Pacific 1,350,000 ordinary shares
Distribution
Sdn Bhd
Chan Jenn Yaw M Chandrasegaran A/l
S. Murugasu
Guy Anthony Freeland
Shailendra Gupta
- --------------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Asia Shailendra Gupta Michael Kim Ming Lee
(HK) Limited Limited - 4 income
shares
Graham Pickles - Share held by Michael Kim Ming Lee
1 ordinary share Graham Pickles
held on trust
for Tech Pacific
Asia Limited
Tech Pacific Asia Guy Anthony Freeland
Limited - 119,999
ordinary shares
87
- -----------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- -----------------------------------------------------------------------------------------------
6,660,000 redeemable
preference shares
- -----------------------------------------------------------------------------------------------
Tech Pacific 166099 Hong Kong 28/F, Bank of East 2,634,716 ordinary
Limited Asia shares
Harbour View
Centre,
56 Gloucester Road,
Wanchai,
Hong Kong
- -----------------------------------------------------------------------------------------------
Tech Pacific 200101113W Singapore 438B Alexandra 45,272 ordinary
(India) Exports Road, #01-05/08, shares
Pte Ltd Singapore,
119968
- -----------------------------------------------------------------------------------------------
Tech Pacific 198501366W Singapore 438B Alexandra 7,967,000
(Singapore) Ltd Road, #01-05/08, preference shares
Singapore,
119968
100,000 ordinary
shares
- -------------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- -------------------------------------------------------------------------------------------------------------
Tech Pacific Asia Man Lung Lee
Limited -
6,660,000 redeemable
preference shares
- -------------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Shailendra Gupta Michael Kim Ming Lee
Limited Asia Limited -
2,634,715 ordinary
shares
Graham Pickles - Share held by Michael Kim Ming Lee
1 ordinary share Graham Pickles
held on trust for
Tech Pacific Asia
Limited
Guy Anthony Freeland
Man Lung Lee
- -------------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific (India) Ramanadhan Krishnan Lawrence Kwan
(India) Exports Limited -
Pte Ltd 45,272 ordinary
shares
Shailendra Gupta
Guy Anthony Freeland
Wong Chee Khuen
- -------------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Asia Shailendra Gupta Wong Chee Khuen
(Singapore) Ltd Limited -
7,967,000 preference
shares
Tech Pacific Asia Limited - Guy Anthony Freeland
100,000 ordinary shares
88
- -----------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- -----------------------------------------------------------------------------------------------
Tech Pacific 200108223Z Singapore 438B Alexandra 2 ordinary shares
Holdings Pte Road, #01-05/08,
Limited Singapore,
119968
- -----------------------------------------------------------------------------------------------
Tech Pacific 199900151E Singapore 438B Alexandra 2 ordinary shares
Logistics Pte Road, #01-05/08,
Ltd Singapore,
119968
- -----------------------------------------------------------------------------------------------
Tech Pacific IBC No 81309 British Virgin PO Box 71, 27,528 ordinary
Asia Limited Islands Craigmuir Chambers, shares
Road Town, Tortola,
British
Virgin Islands
- ----------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- ----------------------------------------------------------------------------------------------------------
Wong Chee Khuen
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Asia Shailendra Gupta Wong Chee Khuen
Holdings Pte Limited -
Limited 2 ordinary shares
Guy Anthony Freeland
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Asia Shailendra Gupta Wong Chee Khuen
Logistics Pte Limited -
Ltd 2 ordinary shares
Guy Anthony Freeland
- ----------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Holdings Elaine N Christaans None
Asia Limited Limited -
27,528 ordinary
shares
F Lawrence Dickt
Guy Anthony Freeland
Shailendra Narendra
Gupta
89
- ------------------------------------------------------------------------------------------------
Name of Registration Place of
subsidiary No. incorporation Registered office Issued capital
- ------------------------------------------------------------------------------------------------
Tech Pacific B 94066 Luxembourg 31-33 Boulevard du 58,321 ordinary
Holdings SARL Prince Henri, shares
L-1724 Luxembourg
400,000 A class
preference shares
600,000 B class
preference shares
- ------------------------------------------------------------------------------------------------
Tech Pacific 15757/2326 Mauritius 10 Frere Felix 2 ordinary shares
Mauritius De Valois Street,
Limited Port Louis,
Mauritius
- ------------------------------------------------------------------------------------------------
Techpac 23537/5388 Mauritius 10 Frere Felix 20,189,162 ordinary
Mauritius De Valois Street, shares
Limited Port Louis,
Mauritius
- ------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
Beneficial
owners of
of shares
(if not the
Name of Registered registered
subsidiary shareholders shareholders) Directors Company Secretary
- --------------------------------------------------------------------------------------------------------------
Tech Pacific Techpac Holdings Stef Oostvogels None
Holdings SARL Limited - 58321
ordinary shares
Techpac Holdings Delphine Tempe
Limited - 400,000 A
class preference
shares
Techpac Holdings Percy King
Limited - 600,000 B
class preference
shares
David Ross
Andrew Cummins
- --------------------------------------------------------------------------------------------------------------
Tech Pacific Tech Pacific Asia Limited - 2 Guy Anthony Freeland Multiconsult Ltd
Mauritius ordinary shares
Limited
Shailendra Gupta
Marie Joseph
Raymond Lamusse
Marie Joseph Louis
Couacaud
- --------------------------------------------------------------------------------------------------------------
Techpac Tech Pacific Asia Limited - Guy Anthony Freeland Multiconsult Ltd
Mauritius 20,189,162 ordinary shares
Limited
Shailendra Gupta
Marie Joseph Raymond
Lamusse
Marie Joseph Louis
Couacaud
- --------------------------------------------------------------------------------------------------------------
90
Project Phoenix - Share Sale Agreement
Schedule 5 - Warranties
- --------------------------------------------------------------------------------
1 Shares
1.1 Proportion of capital
The Shares comprise all of the issued capital of the Company and are
fully paid with no money owing in respect of them.
1.2 Issued shares
All of the issued shares in the capital of the Company are validly
allotted and issued in compliance with the Company's Constitution
and any law or regulation to which the Company is subject and were
not allotted or issued or transferred in breach of any:
(a) pre-emptive or similar rights of any person; or
(b) contract which is binding on the Company.
1.3 Title
The Seller is the registered and beneficial owner of the Shares.
1.4 No Encumbrances
There are no Encumbrances over the Shares and there is no agreement
to give or create any Encumbrance over the Shares.
1.5 No restriction
There is no restriction on the transfer of the Shares to the Buyer
on the terms of this agreement.
1.6 Consents
The Seller has obtained all consents (including consent of the other
shareholders) necessary to enable it to transfer the Shares to the
Buyer except for consent of the directors of the Company to the
registration of the transfer of the Shares.
1.7 No obligation to issue other Securities
The Company is not under any obligation, whether or not subject to
any condition, to:
(a) issue, allot, grant, create, sell, transfer or otherwise dispose
of any Securities including Securities convertible into shares
in the Company;
(b) enter into any agreement in respect of the rights to vote which
are conferred in respect of any Securities; or
91
(c) grant any warrant, option or right of first refusal or offer in
respect of any Securities.
1.8 Agreements in relation to the Shares
There are no agreements, options, arrangements or understandings in
place in relation to the Shares to which the Company is a party or
is subject or by which it is bound (including any shareholders'
agreement, voting trust, proxy or other agreement or understanding
relating to the Shares) to which the Company will after Completion
be a party, subject or bound in any way.
- --------------------------------------------------------------------------------
2 Power and authority
2.1 Authority
The Seller has taken all action which is necessary to authorise the
entry into and performance of its obligations under this agreement.
2.2 Power
The Seller has the power, without any further consent of any other
person, to enter into and perform its obligations under this
agreement.
2.3 Binding obligations
This agreement constitutes legal, valid and binding obligations of
the Seller, enforceable against it in accordance with its terms.
2.4 No consequential breach
The execution, delivery and performance by the Seller of this
Agreement does not and will not result in a breach of or default
under:
(a) any provision of the constitution of any Seller;
(b) any term or provision of any security arrangement to which any
Seller is a party or is subject or by which it is bound; or
(c) any law, judgement, writ, order or injunction, rule or
regulation to which any Seller is a party or is subject or by
which it is bound.
2.5 No insolvency events
(a) No meeting has been convened, resolution proposed, petition
presented or order made for the winding up of the Seller.
(b) No receiver, receiver and manager, provisional liquidator,
liquidator or other officer of the court has been appointed in
relation to all or any of the Shares of the Seller.
(c) No mortgagee or chargee has taken, attempted or indicated an
intention to exercise its rights under any security over the
Shares of the Seller of which the Seller is the mortgagor or
charger.
(d) The Seller is not Insolvent.
92
- --------------------------------------------------------------------------------
3 Target Group
3.1 Schedules
The information in Schedule 2 ("Shares") and Schedule 4 ("Company
and Subsidiaries") is complete, accurate and up-to-date.
3.2 Incorporation
Each Group Company is validly incorporated and subsisting in
accordance with all applicable laws.
3.3 Power and authority
Each Material Operating Subsidiary and the Company has full
corporate power and authority to own their respective assets and
businesses and to carry on their respective businesses as now
conducted.
3.4 No insolvency events
No:
(a) meeting has been convened, resolution proposed, petition
presented or order made for the winding up of any Group Company;
(b) receiver, receiver and manager, provisional liquidator,
liquidator or other officer of the court has been appointed in
relation to all or any material asset of any Group Company;
(c) mortgagee or chargee has taken, or so far as the Seller is
aware, attempted or indicated an intention to exercise its
rights under any security of which any Group Company is the
mortgagor or chargor; and
(d) Group Company is Insolvent.
3.5 Proportion of capital
The shares in each Subsidiary (as shown in Schedule 4 ("Company and
Subsidiaries")) comprise all of the issued capital of the relevant
Subsidiary and are fully paid with no money owing in respect of
them.
3.6 Issued Shares
All of the issued shares in the capital of each Subsidiary (as shown
in Schedule 4 ("Company and Subsidiaries")) are validly allotted and
issued in compliance with the Subsidiary's Constitution and any law
or regulation to which the Subsidiary is subject and were not
allotted or issued or transferred in breach of any:
(a) pre-emptive or similar rights of any person; or
(b) contract which is binding on the relevant Subsidiary.
93
3.7 Title
Each Group Company which is shown in Schedule 4 ("Company and
Subsidiaries") as holding shares in another Group Company is the
registered and beneficial owner of those shares free of any
Encumbrance and there is no agreement to give or create any
Encumbrance over the relevant shares.
3.8 No obligation to issue other Securities
None of the Subsidiaries is under any obligation, whether or not
subject to any condition, to:
(a) issue, allot, grant, create, sell, transfer or otherwise dispose
of any Securities including Securities convertible into shares
in the relevant Subsidiary;
(b) enter into any agreement in respect of the rights to vote which
are conferred in respect of any Securities; or
(c) grant any warrant, option or right of first refusal or offer in
respect of any Securities.
3.9 Agreements in relation to the shares
So far as the Seller is aware, there are no agreements, options,
arrangements or understandings in place in relation to the shares in
any Subsidiary to which the Subsidiary is a party or is subject or
by which it is bound (including any shareholders' agreement, voting
trust, proxy or other agreement or understanding relating to the
relevant shares).
- --------------------------------------------------------------------------------
4 Accounts
4.1 Audited Accounts
(a) The Audited Accounts were prepared in accordance with Australian
Accounting Standards applied on a consistent basis and on the
presumption that the Group continues as a going concern under
ownership of the Seller in the ordinary course.
(b) The Seller is not aware of any matter that would cause the
Seller to believe the Audited Accounts did not present a true
and fair view of:
(i) the statement of financial position;
(ii) the statement of performance; and
(iii) the statement of cash flows,
of the Group for the relevant period.
(c) The Audited Accounts for each period were prepared on a
consistent basis with each other.
94
4.2 Position since 30 June 2004
So far as the Seller is aware, since 30 June 2004:
(a) each of the Group Companies have conducted their business in the
ordinary course and have not entered into any material contracts
or arrangements except in the ordinary course of business;
(b) none of the Group Companies have disposed of any of their
material assets or acquired any material assets except in the
ordinary course of business;
(c) none of the Group Companies have incurred material liabilities
except in the ordinary course of business;
(d) there has not been any material adverse change affecting the
Business as a whole, the assets of the Group taken as a whole or
the financial position of the Group taken as a whole;
(e) no dividends, bonus issues or other distributions have been
declared or made and no repayments of shareholders' loans or
capital reductions, or payments of fees (except for payments of
fees made in the ordinary course of business) have been made, to
a Seller by a Group Company (except for movements in or
forgiveness of intercompany balances ancillary to the
transactions contemplated by this document);
(f) none of the Group Companies have granted any Encumbrance over
any of their material assets except in the ordinary course of
business; and
(g) no loans have been made by the Group Companies to employees, nor
have any advances or loan money been accepted from any employees
except for bonuses paid in the ordinary course of business.
4.3 Vendor claims
(a) So far as the Seller is aware, all liabilities for customer
rebates, discounts, returns, co-operative advertising, price
protection and other sales incentive or marketing programs
arising from sales recognised prior to the respective balance
sheet dates are, on balance, materially reflected in the Audited
Accounts.
(b) So far as the Seller is aware, after allowance for provisions in
the Audited Accounts, all vendor claims receivable or reductions
of vendor accounts payable for amounts due from vendors as
recorded in the Audited Accounts that are material to the Group
as a whole are valid and recoverable claims approved by the
vendor and there are no material disputes in relation to those
Claims.
- --------------------------------------------------------------------------------
5 Title to Assets
5.1 Assets
The material assets used in the businesses of the Group Companies
are:
95
(a) the property of a Group Company or in the possession of a Group
Company under a finance or operating lease; and
(b) used solely by a Group Company.
5.2 Encumbrances
No Encumbrance or other third party interests or rights exist over
any of the material assets of a Group Company other than the
Permitted Encumbrances.
- --------------------------------------------------------------------------------
6 Tangible Assets
All of the material tangible assets of the Group Companies
(including Inventory), are in good repair and working condition,
having regard to their age and conform with all applicable
descriptions, specifications and standards relevant to their use.
- --------------------------------------------------------------------------------
7 Properties
Details of all material documentation pursuant to which material
Premises are owned, leased, used or occupied by the Group Companies
have been provided to the Buyer in the Data Room Documentation.
- --------------------------------------------------------------------------------
8 Intellectual Property Rights
8.1 Ownership
So far as the Seller is aware, all intellectual property rights used
in the businesses of each Group Company are valid and subsisting and
the Group Companies either own or have a lawful right to use them.
8.2 No third party rights
So far as the Seller is aware, no person other than the Group
Companies has a right to an intellectual property right used in the
businesses of the Group Companies, or may benefit from it.
8.3 No infringement
So far as the Seller is aware, the intellectual property rights used
in the businesses of the Group Companies and material to the conduct
by the Material Operating Subsidiaries of their businesses do not
infringe against any industrial or intellectual or other property
right of any other person or is to the knowledge of the Seller
alleged to be, in breach of an obligation of confidence owed to any
third party to the extent that such infringement or breach would
have a material adverse effect on that Material Operating
Subsidiary.
96
- --------------------------------------------------------------------------------
9 Litigation
9.1 Material litigation
There is no material prosecution, litigation, arbitration,
proceeding or so far as the Seller is aware, investigation affecting
any of the Group Companies, the assets of them or the Properties
that:
(a) is current; or
(b) is pending or threatened in writing.
9.2 No facts giving rise to litigation
So far as the Seller is aware, there are no facts or circumstances
which are likely to give rise to any prosecution, litigation or
proceeding involving any of the Group Companies which would be
material to the relevant Group Company.
9.3 No unsatisfied judgments
There are no unsatisfied judgments, awards, claims or demands
against any of the Group Companies.
- --------------------------------------------------------------------------------
10 Records
10.1 Constitution
There are accurate and up-to-date copies of the Constitutions of
each of the Group Companies in the Data Room Documentation.
10.2 Registers
None of the Group Companies has received notice of an application or
intended application to rectify the register of members or another
register it is required by law to maintain.
- -------------------------------------------------------------------------------
11 Taxes and duties
(a) All Tax Returns required to be lodged with any Revenue Authority
or self-assessed with respect to the affairs of the Company and
each Group Company for the period up to Completion have been, or
prior to Completion will be, duly submitted by the Company and
each Group Company to the relevant Revenue Authority, or
self-assessed.
(b) All Taxes under the Tax Law payable by Company and each Group
Company for the Tax Period up to and including 30 June 2004 and
all Tax Periods since 12 June 2003 have been duly assessed
(including by self-assessment) and paid or to the extent not
paid and if required in conformity with Australian Accounting
Standards, appropriate provisions have been made in the 30 June
2004 audited consolidated financial statements of the Company
contained in Annexure A.
97
- --------------------------------------------------------------------------------
12 Insurance
12.1 Policies
So far as the Seller is aware, the Data Room Documentation contains
details of all material insurances (including policies of credit
insurance) in respect of the assets and businesses of each of the
Group Companies, and each of the material insurances (including
policies of credit insurance) in respect of the assets and
businesses of the Group Companies are fully effective, the premiums
have been paid and nothing has been done or omitted to be done which
would make any of them void, voidable or unenforceable.
12.2 Adequacy
So far as the Seller is aware, each of the Material Operating
Subsidiaries have valid insurance cover in respect of their material
assets and employees and at all material times have had valid
insurance:
(a) against all risks normally insured against by companies carrying
on similar businesses or having similar assets (including
policies of credit insurance);
(b) for the full amount required by law;
(c) for the full replacement value of its material assets; and
(d) from a reputable insurer.
12.3 Claims
There is no claim material to the Group as a whole outstanding under
an insurance contract of the Group Companies.
- --------------------------------------------------------------------------------
13 Data Room Documentation
13.1 Not deliberately misleading
So far as the Seller is aware, the Seller does not believe that the
Company or the Seller has deliberately included in the Disclosure
Letter or the information disclosed in writing to the Buyer during
the course of the Due Diligence that is materially misleading or
inaccurate.
13.2 No intention to mislead
So far as the Seller is aware, the Seller does not believe the
Disclosure Letter or the information disclosed in writing to the
Buyer during the course of the Due Diligence was compiled with the
intention of misleading the Buyer.
- --------------------------------------------------------------------------------
14 Register of Shares
None of the Shares are recorded in any register situated in any
jurisdiction other than Bermuda.
98
- --------------------------------------------------------------------------------
15 Hagemeyer Contracts and Hagemeyer Disclosure Letter
So far as the Seller is aware, the Seller does not believe that the
Company has released any party from any of its obligations under the
Hagemeyer Contracts and Hagemeyer Disclosure Letter.
99
Project Phoenix - Share Sale Agreement
Schedule 6 - Adjustment Statement
This is the Adjustment Statement for the purposes of the Share Sale Agreement
between CVC Capital Partners Asia Pacific LP, Asia Investors LLC and Hagemeyer
Caribbean Holding N.V., Ingram Micro Inc. and other parties dated [insert date]
2004 ("Share Sale Agreement").
Estimated Adjustment
Net Statement
Tangible Date
TECHPAC HOLDINGS Assets A$000's
LTD A$000's
- ---------------------------------------------------------------------------
Inventories 187,906
Trade receivables 357,419
Other receivables &
prepayments 16,569
Current assets 561,894
Plant and equipment 10,051
Deferred tax assets 10,467
Deferred borrowing costs 3,681
- ---------------------------------------------------------------------------
Non-current assets 24,199
Intangible Assets 99,026
- ---------------------------------------------------------------------------
Total assets 685,119
- ---------------------------------------------------------------------------
Trade payables 262,046
Accrued expenses and
other payables 54,146
Income tax provision 4,427
Other provisions 772
- ---------------------------------------------------------------------------
Current liabilities 321,391
Deferred tax liabilities
Other provisions 1,360
Leases 18
- ---------------------------------------------------------------------------
Non-current liabilities 1,378
Senior Debt
Mezzanine Debt 30,468
Short term loans 205,008
100
Estimated Adjustment
Net Statement
Tangible Date
TECHPAC HOLDINGS Assets A$000's
LTD $000's
- ---------------------------------------------------------------------------
Westpac Securitisation
Facility
Less Cash at bank (40,983)
- ---------------------------------------------------------------------------
Net Financial Funds 194,493
- ---------------------------------------------------------------------------
Total liabilities 517,262
- ---------------------------------------------------------------------------
Issued capital 138,997
Subordinated
shareholders loans 1,478
Foreign currency
translation reserve (7,717)
Retained earnings 35,099
- ---------------------------------------------------------------------------
Shareholders equity 167,857
Liabilities +
Shareholders equity 685,119
- ---------------------------------------------------------------------------
Net Assets 167,857
Less: Intangible Assets (99,026)
---------------------------------------
Net Tangible Assets 68,831
---------------------------------------
A$000's
- ---------------------------------------------------------------------------
Net Tangible Assets at Adjustment Statement Date A$[ ]
- ---------------------------------------------------------------------------
Less:
Estimated Net Tangible Assets A$ 68,831
- ---------------------------------------------------------------------------
Adjustment Amount A$[ ]
- ---------------------------------------------------------------------------
Under clause 5.15 ("Payment of Adjustment Amount") of the Share Sale Agreement,
the Adjustment Amount of A$[ ] is payable by the [Seller/Buyer] to the
[Buyer/Seller].
101
Project Phoenix - Share Sale Agreement
Schedule 7 - Adjustment Statement Accounting Policies
- --------------------------------------------------------------------------------
1 General
The Adjustment Statement must be prepared in the same format as that
set out in Schedule 6 ("Adjustment Statement") and must be prepared:
(a) in accordance with the specific accounting policies, standards,
principles, procedures, adjustments and method of application of
them set out in section 2 of this Schedule;
(b) to the extent not inconsistent with paragraph (a), in accordance
with the accounting policies, standards, principles, procedures
and method of application of them used in preparing the Audited
Accounts for the six months ended 30 June 2004 consistently
applied; and
(c) to the extent not inconsistent with paragraphs (a) or (b), in
accordance with Australian Accounting Standards.
- --------------------------------------------------------------------------------
2 Specific items
To the extent that the following transactions and events are not
already taken into account in the preparation of the Adjustment
Statement, the following specific adjustments must be made, as
required, in the preparation of the Adjustment Statement:
(a) no write off in deferred borrowing costs as reflected in the
accounts for the period ended 30 June 2004 except on account of
capitalisation of fresh borrowing costs on new financing
facilities entered into and routine amortisation of deferred
borrowing costs over the life of existing financing facilities;
(b) accrual of liability for break fees estimated at A$1,950,000 (or
such lesser amount as the Seller Representative may be able to
agree with the Mezzanine Lenders) to be incurred in relation to
the early repayment of the mezzanine debt (which amount, for the
avoidance of doubt, was not included in the calculation of the
Estimated Net Tangible Assets);
(c) the Preference Shares must be classified as part of Issued
Capital; and
(d) the item "subordinated shareholder loans" estimated at $1.478
million as at 31 October 2004 must be treated as part of
Shareholders Equity and it is acknowledged that they represent
equity entitlements of certain Sellers to be paid out of the
Purchase Price.
102
Any additional specific adjustments to be made to the Adjustment
Statement otherwise than as contemplated by this Agreement require
the agreement of both the Seller Representative and the Buyer.
103
Project Phoenix - Share Sale Agreement
Schedule 8 - Auditor's scope of work
Part 1: Scope of Work
The Auditor must be instructed by the Seller Representative and the Buyer on a
basis consistent with the following:
- --------------------------------------------------------------------------------
1 Preparation of Adjustment Statement
The Adjustment Statement is to be prepared by the directors of the
Company on the basis set out in this agreement.
- --------------------------------------------------------------------------------
2 Audit
The Auditor is to conduct a completion audit in accordance with
Australian GAAS and undertake the key audit work program steps set
out below, along with any other steps considered appropriate by the
Auditor to provide reasonable assurance as to whether the Adjustment
Statement is free of material misstatement and to form the audit
opinion set out in the report below.
- --------------------------------------------------------------------------------
3 Materiality
The materiality for the completion audit of the Adjustment Statement
is to be set at $4,000,000 supplemented with qualitative
considerations.
- --------------------------------------------------------------------------------
4 Unadjusted differences
A schedule of unadjusted differences will be presented to the Seller
Representative and the Buyer at the conclusion of the completion
audit of the Adjustment Statement. This schedule of unadjusted
differences will detail all items with an individual impact in
excess of $500,000, together with the sum of all the positive and
the sum of all the negative unadjusted differences identified with
an individual impact below $500,000.
- --------------------------------------------------------------------------------
5 Audit report
The Auditor is to report to the Seller Representative and the Buyer
on the Adjustment Statement in accordance with the timetable set out
in this agreement and in the form set out below.
104
- --------------------------------------------------------------------------------
6 Key work program steps
Stock existence and stocktake at Adjustment Statement
completeness Date across all territories
reconciliation of physical inventory
count to costed physical inventory
compilation
cut off testing review stock in transit/returns cut off
at Adjustment Statement Date
valuation and consistency of valuation and stock
recoverability provision methodology with
reference to:
- Adjustment Statement
- Adjustment Statement
Accounting Policies
including landed
cost calculation
- review of stock ageing/usage
- vendor price protection and stock
rotation rights
Debtors existence and positive debtors circularisation (plus
completeness since received testing) of the largest
customer balances and a sample of
significant balances over 60 days past
due at Adjustment Statement Date across
each territory
reconcile sub-ledgers to general
ledgers
cut off testing review invoices/orders/credit notes
cut off at Adjustment Statement Date
valuation and consistency of valuation and debtors
recoverability provision methodology with
reference to:
- Adjustment Statement
- review of debtors ageing
- price support rights with vendors
- customer stock rotation rights
Other rebates/ validity of rebates/settlement
settlement discounts accrued, including review
105
debtors discounts of key vendor incentive programs and
consistency of accrual methodology
test significant vendor program
receivables were appropriately
recorded and in compliance to vendor
terms and conditions
reconcile sub-ledger to aged listing
of vendor programs to general ledger
balance
Creditor' - audit of a sample of key vendor
accruals and statement reconciliations at
provisions Adjustment Statement Date
- purchases cut off testing at
Adjustment Statement Date
- unearned revenue testing
- unrecorded liabilities testing
- audit of provisions for:
- legal or other contingencies
- net tax balances
- employee entitlements including
- annual leave/LSL
- salaries
- bonuses
- restructuring/redundancy
obligations
- warranty claims
- customer rebates
- all other liabilities
- review for off balance sheet/
contingent liabilities and
commitments including open hedge
commitments & derivative positions &
obtaining legal confirmations
106
Intercompany confirmation and reconciliation of all
balances intercompany (Group Company, Seller or
related bodies corporate) balances and
related party transactions and
commitments
Fixed assets confirm appropriate treatment of
capital expenditure and consistency
with the Adjustment Statement
Accounting Policies
agree sub-ledger to general ledger
test significant capital expenditures
since June 30 2004
review proper amortisation
verify existence for sample of larger
assets
review for material capex commitments
Cash confirm cash balances with financial
institutions
test bank reconciliations for propriety
review cash cut-off
Borrowings positive confirmation of balance, terms
and conditions (and security) of all
external debt balances and facilities
at Adjustment Statement Date including
finance leases, letters of credit and
bills of exchange
Other current assets test validity review valuation and
collectability
Part 2: Audit report
- --------------------------------------------------------------------------------
1 Completion Audit Report
Independent Audit Report to the Directors of each of CVC Capital
Partners Asia Pacific LP, Asia Investors LLC and Hagemeyer
Caribbean Holding NV ("Seller Representative") and [insert full
name of Buyer] ("Buyer").
107
- --------------------------------------------------------------------------------
2 Scope
In accordance with clause 5 of the Share Sale Agreement dated
[insert date] 2004 between the Seller Representative, the Buyer and
others ("Agreement"), we have performed an audit of the Adjustment
Statement (as defined in the Agreement), being a special purpose
consolidated financial report of the Group as at the Adjustment
Statement Date (as defined in the Agreement), attached as Annexure
A. The Adjustment Statement has been prepared by the Group in
accordance with clauses 5.5 and 5.6 of the Agreement, which requires
the Adjustment Statement to be prepared in accordance with the
Adjustment Statement Accounting Policies set out in Schedule 7 to
the Agreement.
The directors of Techpac Holdings Limited ("Company") are
responsible for the preparation and presentation of the Adjustment
Statement and have determined that the accounting policies used are
consistent with the Adjustment Statement Accounting Policies set out
in Schedule 7 to the Agreement. The directors of the Company have
determined that the accounting policies used are appropriate to meet
the requirements of the Agreement and are appropriate to meet the
needs of the users of the Adjustment Statement, being the parties to
the Agreement. No opinion is expressed as to whether the accounting
policies used, and described in Schedule 7 to the Agreement, are
appropriate to meet the needs of the parties to the Agreement.
The Adjustment Statement and our audit report thereon have been
prepared solely for the purpose of fulfilling the financial
reporting requirements set out in the Agreement in relation to the
proposed sale of the Company to the Buyer. We disclaim any
assumption of responsibility for any reliance on this audit report
or on the Adjustment Statement to which it relates to any person
other than the Seller Representative and the Buyer without our
express written approval, and we deny any liability to any third
party not entitled to rely on our report.
Our audit has been conducted in accordance with Australian GAAS. Our
procedures included examination, on a test basis, of evidence
supporting the amounts and other disclosures in the Adjustment
Statement, and the evaluation of significant accounting estimates.
These procedures have been undertaken to form an opinion as to
whether, in all material respects, the Adjustment Statement is
presented fairly in accordance with the Adjustment Statement
Accounting Policies set out in Schedule 7 to the Agreement.
The audit opinion expressed in this report has been formed on the
above basis.
Words and expressions defined in the Agreement have the same meaning
when used in this report.
- --------------------------------------------------------------------------------
3 Audit opinion
In our opinion the Adjustment Statement presents fairly the Group's
financial position as at the Adjustment Statement Date in accordance
with the
108
Adjustment Statement Accounting Policies set out in Schedule 7 to
the Agreement.
[ ]
Chartered Accountants
Sydney
[insert date]
109
Project Phoenix - Share Sale Agreement
Schedule 9 - Public Register Information
- -------------- -------------------------- ------------------------ ---------------------- ------------------------ -----------------
Country Corporate Searches Intellectual Property Real Property Searches Litigation Searches Other Searches
Searches
- -------------- -------------------------- ------------------------ ---------------------- ------------------------ -----------------
Australia Australian Securities and Internet names worldwide New South Wales Land Federal Court of
Investments Commission and Property Australia
Australian Trademarks Information
New South Wales Department Office
of Fair Trading or
equivalent body in each
state or territory of the Supreme Court of New
Commonwealth of Australia: South Wales
- -------------- -------------------------- ------------------------ ---------------------- ------------------------ -----------------
New Zealand The Companies Office Intellectual Property Land Information New High Court Registry in Personal Property
Office of New Zealand Zealand Auckland, Wellington Securities
and Christchurch Register
New Zealand Court of
Appeal
- -------------- -------------------------- ------------------------ ---------------------- ------------------------ -----------------
Belgium Crossroads Bank for
Enterprises
Registry of Commerce
- -------------- -------------------------- ------------------------ ---------------------- ------------------------ -----------------
110
- ------------------------------------------------------------------------------------------------------------------------------------
Country Corporate Searches Intellectual Property Real Property Searches Litigation Searches Other Searches
Searches
- ------------------------------------------------------------------------------------------------------------------------------------
Thailand Department of Commercial Department of Bankruptcy Court
Registration, Ministry of Intellectual Property,
Commerce Ministry of Commerce
- ------------------------------------------------------------------------------------------------------------------------------------
Philippines Securities and Exchange Intellectual Property Supreme Court of the
Commission Office Philippines
Court of Appeals
Court of Tax Appeals
National Labor
Relations Commission
- ------------------------------------------------------------------------------------------------------------------------------------
Malaysia Companies Commission of Trade Marks Registry,
Malaysia Intellectual Property
Jabatan Insolvensi Corporation of
Malaysia Malaysia
- ------------------------------------------------------------------------------------------------------------------------------------
India Registrar of Companies Trade Marks Registry
Patent & Designs Office
Copyright Registry
- ------------------------------------------------------------------------------------------------------------------------------------
Mauritius Registrar of Companies Supreme Court of
Mauritius
- ------------------------------------------------------------------------------------------------------------------------------------
111
- ------------------------------------------------------------------------------------------------------------------------------------
Country Corporate Searches Intellectual Property Real Property Searches Litigation Searches Other Searches
Searches
- ------------------------------------------------------------------------------------------------------------------------------------
Luxembourg Tribunal of Commerce
Register of Commerce
and Companies Luxembourg
(Registre de commerce et
des Societes Luxembourg)
- ------------------------------------------------------------------------------------------------------------------------------------
Singapore Accounting and Corporate Intellectual Property Singapore Land High Court and
Regulatory Authority Office of Singapore, as Authority Subordinate Courts
well as its website: Registers
www.ipos.gov.sg for some for companies:
---------------
online searches
Winding-up, Cause Book,
Writs of Seizure and
Sale, Judicial
Management
for individuals:
Bankruptcy, Cause Book,
Writs of Seizure and
Sale
- ------------------------------------------------------------------------------------------------------------------------------------
Hong Kong Companies Registry Trade Marks Registry Land Registry and New TARGET On-Line Official
Territories Land Financial Limited Receiver's Office
Registries
- ------------------------------------------------------------------------------------------------------------------------------------
British Virgin British Virgin Islands British Virgin Islands
Islands Companies Registry High Court Registry
- ------------------------------------------------------------------------------------------------------------------------------------
112
- ------------------------------------------------------------------------------------------------------------------------------------
Country Corporate Searches Intellectual Property Real Property Searches Litigation Searches Other Searches
Searches
- ------------------------------------------------------------------------------------------------------------------------------------
Bermuda Register of Companies Supreme Court of
Bermuda Causes Register
Register of Charges
- ------------------------------------------------------------------------------------------------------------------------------------
113
Project Phoenix - Share Sale Agreement
Signing page
DATED: September 26, 2004
SIGNED by )
as attorney for CVC CAPITAL )
PARTNERS ASIA PACIFIC LP )
under power of attorney dated )
in the presence of: )
)
)
/s/ Adrienne Showering )
- ------------------------------- ) /s/ Richard Mazzochi
Signature of witness ) ----------------------------------------
ADRIENNE SHOWERING ) By executing this agreement the
- ------------------------------ ) attorney states that the attorney has
Name of witness (block letters) ) received no notice of revocation of
) the power of attorney
SIGNED by )
as attorney for ASIA INVESTORS )
LLC under power of attorney dated )
in the presence )
of: )
)
)
/s/ Adrienne Showering )
- ------------------------------- ) /s/ Richard Mazzochi
Signature of witness ) ----------------------------------------
ADRIENNE SHOWERING ) By executing this agreement the
- ------------------------------ ) attorney states that the attorney has
Name of witness (block letters) ) received no notice of revocation of
) the power of attorney
SIGNED by )
as attorney for HAGEMEYER )
CARIBBEAN HOLDING NV under )
power of attorney dated )
in the presence of: )
)
)
/s/ Adrienne Showering )
- ------------------------------- ) /s/ Richard Mazzochi
Signature of witness ) ----------------------------------------
ADRIENNE SHOWERING ) By executing this agreement the
- ------------------------------ ) attorney states that the attorney has
Name of witness (block letters) ) received no notice of revocation of
) the power of attorney
114
SIGNED by )
as attorney for each of the )
Management Sellers in the presence )
of: )
)
)
/s/ Adrienne Showering )
- ------------------------------- ) /s/ Richard Mazzochi
Signature of witness ) ----------------------------------------
) By executing this agreement the
ADRIENNE SHOWERING ) attorney states that the attorney has
- ------------------------------ ) received no notice of revocation of
Name of witness (block letters) ) the power of attorney
SIGNED by INGRAM MICRO )
ASIA HOLDINGS INC. by )
) /s/ Kay D. Leyba
) ----------------------------------------
) By executing this agreement the
) signatory warrants that the signatory
) is duly authorised to execute this
) agreement on behalf of
) INGRAM MICRO ASIA HOLDINGS INC.
)
) Kay D. Leyba
) ----------------------------------------
) Name of signatory
Assistant Treasurer
----------------------------------------
Position held
SIGNED by INGRAM MICRO )
INC. by ) /s/ Kevin Murai
) ----------------------------------------
) By executing this agreement the
) signatory warrants that the signatory
) is duly authorised to execute this
) agreement on behalf of INGRAM MICRO INC.
)
) Kevin Murai
) ----------------------------------------
Name of signatory
Assistant Treasurer
----------------------------------------
Position held
115