Exhibit 4.4
[LOGO] GILBERT
TOBIN
LAWYERS
BUSINESS PURCHASE
AGREEMENT
BUSINESS OF BALTIMORE
TECHNOLOGIES PTY
LIMITED AND BALTIMORE
CERTIFICATES AUSTRALIA
PTY LIMITED
BALTIMORE TECHNOLOGIES PTY LIMITED
BALTIMORE TECHNOLOGIES PLC
BALTIMORE CERTIFICATES AUSTRALIA
PTY LIMITED
SECURENET LIMITED
2 Park Street Sydney NSW 2000 Australia
email@gtlaw.com.au http://www.gtlaw.com.au
Telephone + 61 2 9263 4000 Facsimile + 61 2 9263 4111
CONTENTS
1. DICTIONARY 1
2. SALE AND PRICE 2
3. CONDITIONS PRECEDENT TO COMPLETION 3
4. PERIOD BEFORE COMPLETION 4
5. ADJUSTMENT OF PURCHASE PRICE 8
6. COMPLETION AND TERMINATION 10
7. BUSINESS CONTRACTS 13
8. EMPLOYMENT AND SUPERANNUATION 19
9. LOCAL INTELLECTUAL PROPERTY 21
10. CONDUCT AFTER COMPLETION 22
11. WARRANTIES 22
12. CONFIDENTIALITY 23
13. COSTS AND EXPENSES 23
14. GST AND TAX 24
15. DISPUTE RESOLUTION 25
16. GENERAL 26
17. SELLER GUARANTEE 30
18. BUYER NOMINEE COMPANY AND GUARANTEE 30
SCHEDULE 1 - BUSINESS ASSETS AND EXCLUDED CONTRACTS AND ASSETS
SCHEDULE 2 - WARRANTIES
SCHEDULE 3 - ASSET LEASES
SCHEDULE 4 - CUSTOMER CONTRACTS
SCHEDULE 5 - OTHER CONTRACTS
SCHEDULE 6 - EMPLOYEES
ATTACHMENT A - ADJUSTMENT STATEMENT
ATTACHMENT B - DISTRIBUTION AGREEMENT
ATTACHMENT C - TRUSTED WORLD PARTNER AGREEMENT
ATTACHMENT D - DICTIONARY
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DATE 2 May 2002
PARTIES
1. BALTIMORE TECHNOLOGIES PTY LIMITED ABN 31 003 823 461 of Level 4, Building
C Citywest Office Park, 33 Saunders Street, Pyrmont, NSW 2009 (BT Pty Ltd);
2. BALTIMORE CERTIFICATES AUSTRALIA PTY LIMITED ABN 44 075 878 867 of Level 4,
Building C Citywest Office Park, 33 Saunders Street, Pyrmont, NSW 2009
(CAPL);
each, a Seller, and together, the Sellers;
3. BALTIMORE TECHNOLOGIES PLC (a company incorporated under the laws of
England and Wales) of 1310 Waterside, Arlington Business Park, Theale,
Reading, Berkshire, RG7 4SA, United Kingdom (BT plc); and
4. SECURENET LIMITED ABN 74 073 665 175 of Level 18, 60 Albert Road, South
Melbourne, VIC 3205 (the Buyer).
BACKGROUND
A. The Business is carried on by the Sellers.
B. The Buyer wishes to acquire as a going concern and continue the Business of
the Sellers.
C. BT Pty Ltd and CAPL have agreed to sell and transfer to the Buyer the
Business Assets on the terms and conditions of this Agreement and the
Related Agreements.
THE PARTIES AGREE
1. DICTIONARY
The Dictionary in Attachment B:
(a) defines some of the terms used in this Agreement; and
(b) sets out the rules of interpretation which apply to this Agreement.
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2. SALE AND PRICE
2.1 Sale of Business Assets
Subject to clause 3, the Sellers as legal and beneficial owners must sell the
Business Assets to the Buyer and the Buyer must buy them:
(a) for the Purchase Price;
(b) on the Completion Date; and
(c) free of Security Interests or other rights or interests of third parties.
2.2 Purchase Price
Subject to adjustment in accordance with clauses 5.1 and 4.2(b)(ii), the
Purchase Price is AU$5,700,000 apportioned as follows:
(a) AU$4,200,000, less any sum payable pursuant to clause 4.2(b)(ii), payable
on the Completion Date;
(b) the Adjustment Amount, payable in accordance with clauses 5.1 and 6.9; and
(c) conditional on the receipt by SecureNet on or before 15 June 2003 of a
valid order placed by the Commonwealth Bank of Australia for its CA
business (CBA Order):
(i) AU$1,000,000 payable within 2 Business Days of SecureNet's receipt of
such CBA Order; and
(ii) AU$500,000 payable 90 calendar days after the payment to Baltimore
under paragraph (i) above.
2.3 Allocation of Purchase Price
Between the date of this Agreement and the Completion Date, the parties will use
their reasonable efforts to agree on the allocation of the Purchase Price
between the Business Assets.
2.4 Title and Risk
Title to, possession of and risk in the Business Assets passes to the Buyer on
Completion.
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2.5 Going concern and GST
(a) The parties agree that the sale of the Business conducted by the Sellers is
the Supply of a Going Concern.
(b) The Buyer represents and warrants that it is registered or required to be
registered under the GST Law.
(c) The Sellers must continue to conduct the Business as a going concern until
Completion.
(d) The parties enter into this Agreement on the basis that the sale of the
Business as a Going Concern is GST-free.
(e) If, for any reason, this sale is not accepted by the Commissioner of
Taxation as GST-free or the Supply of a Going Concern:
(i) the Buyer must pay to the Sellers the amount of the GST within 14 days
after the Commissioner confirms the Sellers' liability to GST in an
assessment or correspondence; and
(ii) the Sellers must give the Buyer a Tax Invoice in a form which complies
with the GST Law, as a precondition to payment under paragraph (e)(i).
(f) Clause 14 deals with the effect of GST on any other matters contemplated by
this Agreement. If there is any inconsistency between this clause and
clause 14, this clause prevails.
3. CONDITIONS PRECEDENT TO COMPLETION
3.1 Conditions Precedent
The Buyer and the Sellers are only obliged to complete the sale and purchase of
the Business Assets in accordance with this Agreement if each Condition is
either satisfied or waived in full by the Benefiting Parties in accordance with
this clause 3.
3.2 Satisfaction of Conditions
(a) reasonable endeavours: Each party must use their reasonable endeavours to
satisfy the Conditions before the End Date.
(b) notice: The Buyer and the Sellers must each promptly notify each other
party in writing if it becomes aware that a Condition is satisfied or
becomes incapable of being satisfied.
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(c) waiver: A Condition may only be waived by the Benefiting Party(s) of that
Condition. Such waiver must be in writing and is only effective to the
extent specified in the waiver.
4. PERIOD BEFORE COMPLETION
4.1 The Sellers shall procure between the date hereof and the Completion Date
that unless the Buyer has given its prior consent or except as expressly
required or permitted pursuant to this Agreement or pursuant to an
Integration Committee minute approving such action:
(a) unless the Buyer's representatives on the Integration Committee agree
otherwise, the Business will be carried on in the ordinary and usual course
which, for the avoidance of doubt, shall mean that the Business is
conducted in substantially the same manner as it was in the six months
immediately prior to the date of this Agreement;
(b) unless the Buyer's representatives on the Integration Committee agree
otherwise, no actions may be taken outside the ordinary and usual course of
the Business without the prior written approval of the Integration
Committee;
(c) unless the Buyer's representatives on the Integration Committee agree
otherwise, none of the following shall occur in respect of the Business:
(i) the purchase of or agreement to purchase any asset with a value of
$10,000 or more or a commitment to purchase in any one year a number
of assets or make a number of investments with an aggregate book value
of $20,000 or more;
(ii) the sale of or agreement to sell any asset with a value of $10,000 or
more or a commitment to sell in any one year a number of assets with
an aggregate book value of $20,000 or more;
(iii) the entering into, variation or termination of any contract of
employment or services with any person or entity (except the
termination of any contract of employment at the request of the
employee or with an Excluded Person);
(iv) the issue of any letter of demand or the commencement of any
proceeding to recover any debt of $20,000 or more from any customer or
client of the Business;
(v) the Sellers entering into, amending or terminating any long term
contract or a contract with a value (taking account of gross payments
or receipts over the life of the contract) of $200,000 or more; or
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(vi) the commencement by the Sellers of any new business other than the
Business.
4.2 Pyrmont Property Lease
(a) BT Pty Ltd undertakes that it will, in conjunction with the Buyer, use all
reasonable endeavours from the date of this Agreement to achieve an
assignment to the Buyer of BT Pty Ltd's interest in the Pyrmont Property
Lease (in respect of Level 4 and half of Level 3 only) on terms equal to
the Buyer paying AU$264,506 per annum with a yearly increase of the higher
of 4% or CPI, exclusive of outgoings and payments under the Car Park
Licence. If it becomes apparent to the Parties that despite their
reasonable efforts the landlord under the Pyrmont Property Lease (Landlord)
is not prepared to consent to an assignment of the Pyrmont Property Lease,
then in any such case BT Pty Ltd and the Buyer will use all reasonable
endeavours to achieve a sub-letting to the Buyer on terms substantially
equivalent to BT Pty Ltd's Pyrmont Property Lease of BT Pty Ltd's interest
in the Pyrmont Property Lease (in respect of Level 4 and half of Level 3
only).
(b) BT Pty Ltd acknowledges that its reasonable efforts for the purposes of
this clause 4.2 include the following:
(i) in the case of an assignment: BT Pty Ltd undertaking to the Landlord
to place in escrow on the granting of the licence to assign, a sum
equivalent to the Net Present Value of the amounts payable under the
Pyrmont Property Lease for the period from Completion until 31
December 2006, less an amount equal to AU$264,506 per annum with a
yearly increase of the higher of 4% or CPI, exclusive of outgoings and
payments under the Car Park Licence; or
(ii) in the case of a sub-letting to the Buyer: BT Pty Ltd giving to the
Buyer a sum worked out by multiplying $38,113 per month by the number
of months from the Completion Date to 31 December 2006 (for example,
assuming Completion on 31 May 2002, such sum would be $2,096,240).
4.3 Access to information
The Sellers must:
(a) allow the Buyer and its agents, representatives and advisers reasonable
access to the Property, the Business Assets, the books and records
(including to take copies of such material) and the Employees of the
Sellers upon reasonable prior notice; and
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(b) ensure the Buyer is kept promptly informed of all material matters relating
to the businesses, assets and affairs of the Sellers and further that the
Buyer receives a copy of all board papers, management reports and accounts,
and Integration Committee minutes as soon as practicable but no later than
such time when they are received by the Sellers.
4.4 Integration Committee
The Buyer and BT Pty Ltd shall each appoint in writing 3 representatives to an
Integration Committee for the purpose of monitoring and advising on the
operation of the Business by the Sellers prior to the Completion Date and the
performance of the Buyer and the Sellers of their respective obligations
pursuant to this Agreement. In the event of deadlock of any meeting of the
Integration Committee, the parties agree that Bijan Khezri shall have the final
and casting vote.
4.5 The Buyer's Conduct
Unless BT Pty Ltd agree otherwise in writing, prior to Completion the Buyer must
not do anything, fail to do anything, or allow anything to happen which would
make a Buyer Warranty false or misleading in a material respect. During the
period from signing this Agreement until Completion, the Buyer must not do
anything which would make a Seller Warranty false or misleading in a material
respect, provided that this provision will not restrict the Buyer from operating
the Buyer's own business on a normal commercial basis.
4.6 HIC Agreement
(a) BT Pty Ltd will use reasonable endeavours:
(i) to remedy to HIC's satisfaction defects or deficiencies alleged by HIC
in products or services supplied by BT Pty Ltd to the Health Insurance
Commission (HIC) pursuant to the agreement between HIC and BT Pty Ltd
dated 1 February 2000 (the HIC Agreement); and
(ii) to secure consent by HIC to assignment of the HIC Agreement from BT
Pty Ltd to the Buyer with effect on and from Completion, but varied in
accordance with the draft letter from Rory Brennan of BT Pty Ltd to
Kathy Kirby of HIC which is Attachment J to the "Disclosure Bundle"
attached to the Disclosure Letter (Agreed HIC Amendments), or
substantially similar terms or as otherwise agreed by the parties.
(b) Not less than five (5) days prior to Completion the Buyer will advise the
Sellers whether the Buyer nominates the HIC Agreement as an Excluded
Contract. If the Buyer does not so nominate, the HIC Agreement will be a
Customer Contract and governed as such by other provisions of this
Agreement. If the Buyer does so nominate:
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(i) the HIC Agreement will be an Excluded Contract as though included in
Part 2 of Schedule 1 and governed as such by other provisions of this
agreement which relate to Excluded Contracts;
(ii) BT Pty Ltd must and, subject to paragraph (iii), will require Buyer
to, and Buyer will, provide professional services at the same rates as
are payable by HIC to BT Pty Ltd under the HIC Agreement, to
facilitate BT Pty Ltd to provide support services to HIC as required
under the HIC Agreement and otherwise as reasonably required to enable
BT Pty Ltd to fulfil its ongoing support obligations to HIC (other
than Level 3 support) subsequent to Completion on the same terms as
apply generally to provision of professional services by the Buyer to
BT plc;
(iii) if the Buyer does not provide professional services as referred to in
paragraph (ii) in accordance with the terms as apply generally to
provision of professional services by the Buyer to BT plc and
otherwise as reasonably required to enable BT Pty Ltd to fulfil its
ongoing support obligations to HIC (other than Level 3 support)
subsequent to Completion and the Buyer does not remedy that deficiency
within 10 days from the date of any notice from BT Pty Ltd to the
Buyer specifying that deficiency, then notwithstanding clause 2.1 of
the Distribution Agreement and without affecting BT Pty Ltd's other
rights and remedies, BT Pty Ltd will be entitled to itself provide or
to purchase support services from another provider in order to fulfil
BT Pty Ltd's obligations under the HIC Agreement.
(c) If at any time subsequent to Completion BT Pty Ltd is able to:
(i) remedy to HIC's satisfaction defects or deficiencies alleged by HIC in
products or services supplied by BT Pty Ltd to HIC pursuant to the HIC
Agreement; and
(ii) secure consent by HIC to assignment of the HIC Agreement from BT Pty
Ltd to the Buyer varied in accordance with the Agreed HIC Amendments
or substantially similar terms or as otherwise agreed by the parties,
BT Pty Ltd must notify the Buyer, providing reasonable evidence of
fulfilment of (i) and (ii) above. If BT Pty Ltd is able to do so, the Buyer
will consent to an assignment of the HIC Agreement subject to the Agreed
HIC Amendments, and the provisions of clause 7 of this Agreement will
operate as and from the date that this assignment takes effect, amended
however such that where provisions of clause 7 refer to Completion and the
Completion Date, those references will be read as references to the
assignment pursuant to this provision and the date that that assignment
takes effect.
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(d) At any time subsequent to Completion and notwithstanding that BT Pty Ltd is
not able to fulfil the conditions stated in (i) and (ii) of paragraph (c)
above, the Buyer may, at Buyer's election exercised on not less than 20
Business Days prior notice, require BT Pty Ltd to assign the HIC Agreement,
on reasonable terms and subject to such assignment being in accordance with
provisions of the HIC Agreement, in which event the provisions of clause 7
of this Agreement will operate as and from the date that this assignment
takes effect, amended however such that where provisions of clause 7 refer
to Completion and the Completion Date, those references will be read as
references to the assignment pursuant to this provision and the date that
that assignment takes effect.
(e) The provisions of this clause 4.6 survive Completion of this Agreement and
will continue for such period as is required to give effect to these
provisions in accordance with their tenor.
5. ADJUSTMENT OF PURCHASE PRICE
5.1 Adjustment of Purchase Price
(a) The parties acknowledge that the Purchase Price will be adjusted on the
Adjustment Date, but calculated as at the Completion Date, for:
(i) Seller Accruals, Unlicensed Software Cost, Employee Entitlements
relating to the Transferring Persons and Deferred Revenue, by way of
reductions in the Purchase Price; and
(ii) Work in Progress and Seller Prepayments, by way of increases in the
Purchase Price,
in accordance with an Adjustment Statement in the form set out in
Attachment A, the contents of which are to be agreed between the Sellers
and the Buyer. The net adjustment amount (Adjustment Amount) determined in
accordance with the Adjustment Statement will be an amount payable by the
Sellers to the Buyer, or by the Buyer to the Sellers, as the case may be.
The Adjustment Amount must be paid in accordance with clause 6.9 on the
Adjustment Date.
(b) During the Adjustment Period, the Buyer and the Sellers shall use all
reasonable efforts to agree the Adjustment Statement determined as at the
Completion Date.
(c) The calculation of the Adjustment Statement is to be in accordance with
Accounting Standards.
(d) During the Adjustment Period, the Sellers and the Buyer must provide to
each other full access to the working papers and source documents used in
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preparing the calculation of the Adjustment Statement at the Completion
Date.
(e) If the Buyer and the Sellers do not agree on a value or a particular item
in the calculation of the Adjustment Statement upon the expiry of the
Adjustment Period, the value or particular item is to be determined by an
Independent Expert in accordance with clause 5.2.
(f) For the purpose of calculating any increase to the Purchase Price under
clause 5.1(a), the Work in Progress shall be calculated on a GST exclusive
basis and Seller Prepayments shall be reduced by the amount of any Input
Tax Credits for which the Seller is entitled in respect of those Seller
Prepayments.
5.2 Independent Expert
(a) valuation: If a matter is referred to the Independent Expert under clause
5.1, the parties must immediately upon the expiry of the Adjustment Period
instruct the Independent Expert to complete the relevant determination as
soon as possible and no later than 28 days following the expiry of the
Adjustment Period.
(b) access and submissions: Each party:
(i) must provide the Independent Expert with full access to its books and
records and information required by the Independent Expert to complete
a valuation or make a determination under this clause; and
(ii) is entitled to make submissions to the Independent Expert about a
valuation or determination to be completed or made under this clause.
(c) final and binding: The Independent Expert's written determination or
valuation of a matter referred to it under this Agreement is final and
binding and, where applicable, must be promptly incorporated in the
Adjustment Statement.
(d) expert: The Independent Expert acts as an expert, not as an arbitrator.
(e) costs: The Independent Expert shall determine who should bear his costs.
5.3 Receivables
(a) Effective from Completion, each Seller shall appoint the Buyer its agent
for the purpose of collecting the Receivables and giving directions to
debtors to pay the Receivables to the Buyer.
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(b) The Sellers must provide to the Buyer at Completion a list of the
Receivables as at Completion setting out for each debtor:
(i) the name;
(ii) the address;
(iii) the amount owing; and
(iv) the due date for payment of the debt.
(c) The Buyer, as each Seller's agent, must:
(i) for the period of 90 days following Completion, seek payment of the
Receivables in accordance with generally accepted commercial
practices; and
(ii) account to the Sellers, on the last day of each thirty day period
after the Completion Date for all amounts received by the Buyer for
Receivables with a right of set-off of such amounts against any
Adjustment Amount payable pursuant to clause 6.9.
(d) At the end of the period of 90 days following Completion, Buyer's
appointment as the agent of each Seller shall terminate and the Sellers
shall re-assume responsibility for the collection of any Receivables which
have not been paid at that date. Any amounts received by the Sellers in
accordance with this paragraph (d) shall be retained by the Sellers in full
for their own account.
(e) Nothing in this clause 5.3 obliges the Buyer to take action to recover any
Receivable by way of recovery or enforcement proceedings.
(f) During the 90 day period following Completion, the Sellers shall not take
any action to recover any Receivable.
6. COMPLETION AND TERMINATION
6.1 Date for Completion
Subject to clause 3.1 (Conditions Precedent), Completion must take place at the
office of the Sellers' solicitors, Gilbert + Tobin Lawyers of Level 37, 2 Park
Street Sydney, on 31 May 2002 and in any event, no later than the End Date or
such other date as the parties may agree in writing.
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6.2 Delivery of Related Agreements by BT Pty Ltd
At Completion, BT Pty Ltd must give to the Buyer:
(a) each of the Related Agreements executed by; and
(b) board minutes authorising the entry into such Related Agreement by,
BT Pty Ltd and/or the affiliates of BT Pty Ltd (as the case may be).
6.3 Delivery of Business Records
At Completion, the Sellers must give to the Buyer:
(a) business records: full and complete Business Records (and copies of the
Excluded Records except where delivery of such copies would breach legal
professional privilege or where such Excluded Records are solely those
referred to in paragraph (c) of the definition of such term) which relate
to the Business Assets existing as at the Completion Date; including all
documentary evidence reasonably required to evidence ownership of the
Business Assets; and
(b) invoices: copies of the invoices for the Receivables and the Seller
Accruals.
6.4 Delivery and Possession of the Business Assets
Subject to the Buyer's compliance with clauses 6.6 and 6.8 and to the provisions
of clause 7, at Completion, the Sellers must give the Buyer full and
unrestricted possession of all the Business Assets, excluding the Excluded
Contracts and Excluded Assets including duly executed transfers required to vest
any Business Assets in the Buyer.
6.5 Meeting
On or before Completion, each Seller must ensure that:
(a) a meeting of its shareholders is convened to change the name of the Seller
to a name which does not include the word "Baltimore"; and
(b) the relevant documentation necessary to notify the relevant Government
Agency(s) of such change of name is delivered to the Buyer for lodgement.
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6.6 Change of company names
The Sellers shall use their reasonable efforts to procure that the names of
Baltimore Technologies (Asia Pacific) Pty Limited ACN 099 244 149 and Baltimore
Technologies (Holdings) Pty Ltd ACN 099 243 544 are changed to names which do
not include the word "Baltimore" and that the relevant documentation necessary
to notify the relevant Government Agency(s) of such change of name is lodged.
6.7 The Buyer's Obligations on Completion
On Completion and if the Sellers have complied with clauses 6.2, 6.3 and 6.4,
the Buyer must deliver to BT Pty Ltd counterparts executed by the Buyer of each
of the Related Agreements.
6.8 Simultaneous Actions at Completion
In respect of Completion:
(a) the obligations of the parties under this agreement are independent; and
(b) all actions required to be performed will be taken to have occurred
simultaneously on the Completion Date.
6.9 Payment of Adjustment Amount
On the Adjustment Date the party which is required to pay the Adjustment Amount
must pay such Adjustment Amount to the other party.
6.10 Termination
(a) A party may terminate this agreement by giving notice in writing to the
other parties at any time before Completion if that party has not breached
clause 3.2 and:
(i) a Condition is incapable of fulfilment and the Benefiting Party has
advised in writing that it will not waive the Condition; or
(ii) each Condition is not satisfied, or waived in full by each Benefiting
Party before 5.00 pm on the End Date.
(b) On termination of this Agreement under paragraph (a) above, no party has
any further obligations and is released from further performing its
obligations under this Agreement except under:
(i) clause 13 (Confidentiality);
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(ii) clause 14 (Costs);
(iii) clause 17 (General); and
(iv) a right, remedy or claim which accrued before termination.
(c) Subject to paragraph (b) above, no party will have any liability whatsoever
to the other parties for any costs, expenses, losses or other damages of
any kind (including third party claims against the other parties) incurred
by the other parties for the termination of this Agreement under this
clause.
7. BUSINESS CONTRACTS
7.1 Assumption of obligations under Business Contracts
Subject to the Distribution Agreement and Completion, and with effect from the
Completion Date, the Buyer hereby:
(a) assumes all performance obligations of the Sellers and BT plc under the
Business Contracts including, without limitation any obligation under the
Customer Contracts to:
(i) provide customer support;
(ii) remedy defects occurring after the Completion Date; and
(iii) supply services which the Sellers and BT plc undertook to perform
prior to the Completion Date (excluding such Support Services as the
Sellers and BT plc have undertaken to provide under the Distribution
Agreement subsequent to the Completion Date);
(b) assumes all liability under any Business Contract;
(c) undertakes to the Sellers and BT plc to carry out, perform and complete all
the obligations and liabilities created by or arising under the Business
Contracts; and
(d) the obligations and liabilities of the Buyer pursuant to paragraphs (a),
(b) and (c) above do not apply to obligations and liabilities attributable
to and arising out of a breach of a provision or warranty of a Business
Contract by the Sellers or BT plc prior to the Completion Date.
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7.2 Entitlement of benefits under Business Contracts
(a) Subject to paragraph (b), at Completion, the Buyer will become entitled to
the benefits under those Business Contracts which remain to be satisfied
subsequent to the Completion Date.
(b) Benefits granted pursuant to paragraph (a) do not include any insurance
policies, insurance claims and repayments arising prior to the Completion
Date in relation to the Business.
7.3 Indemnity and no liability
(a) Indemnity: The Buyer must indemnify the Sellers and BT plc and keep each of
them fully indemnified against all Liabilities brought or made against or
incurred by any of the Sellers or BT plc:
(i) in respect of non-performance or defective or negligent performance by
the Buyer of the Business Contracts or otherwise arising out of the
Business Contracts after Completion; and
(ii) in relation to the Buyer's assumptions of the obligations,
liabilities, guarantees and warranties in relation to the Business
Contracts under clause 7.1,
except to the extent such Liability arises due to the negligence, fraud,
dishonesty or wilful act or omission of any of the Sellers, BT plc, or its
or their Related Bodies Corporate.
(b) Indemnity: The Sellers and BT plc must indemnify the Buyer and keep it
fully indemnified against all Liabilities (whenever occurring, provided
that the event which gives rise to any such Liability occurs on or before
Completion) that are brought or made against or incurred by the Buyer in
respect of the Business Contracts except to the extent such Liability
arises due to the negligence, fraud, dishonesty or wilful act or omission
of the Buyer or its Related Bodies Corporate.
(c) No Liability: The Buyer will hold each of the Sellers and BT plc free from
any Liability arising from:
(i) breach of a Business Contract relating to failure to obtain or
formalise consent of the assignment or novation of that contract or
otherwise; or
(ii) relocation or disruption to the Buyer's business or any other
consequence suffered by the Buyer if the Buyer has to give up
possession of an Asset Lease.
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7.4 Release of Guarantees
(a) From the Completion Date and except to the extent provided under this
Agreement, the Buyer must use its reasonable endeavours to secure the
release or discharge of each Seller Group Guarantee, including, without
limitation, by providing or obtaining such reasonable Guarantees, support
or information as is reasonably required by any third party whose agreement
is required for the release of the Seller Group Guarantee. For the purposes
of clarity, in the case of the guarantee listed in item (a) of Schedule 8
(Seller Group Guarantees), the obligations on the Buyer to use reasonable
endeavours to secure the release or discharge of that guarantee will not
require the Buyer to offer or provide any form of substitute guarantee in
favour of the Health Insurance Commission.
(b) Except to the extent provided under this Agreement, the Buyer must
indemnify the Sellers or BT plc and keep the Sellers or BT plc, as the case
may be, fully indemnified against all Liabilities brought or made against
or incurred by the Sellers or BT plc, as the case may be, in relation to
the Seller Group Guarantees, to the extent that these arise from the
performance of any obligation under the Business Contracts, or any acts or
omissions of the Buyer, subsequent to the Completion Date.
(c) Except to the extent provided under this Agreement, the Sellers or BT plc,
as the case may be, must indemnify the Buyer and keep the Buyer fully
indemnified against all Liabilities brought or made against or incurred by
the Buyer in relation to the Seller Group Guarantee, to the extent that
these arise from any obligation under the Business Contracts, or any acts
or omissions of either the Sellers or BT plc, prior to the Completion Date.
(d) The Sellers will cause the Unconditional Financial Undertaking provided by
the Australia and New Zealand Banking Group Limited Number 09300/2059 dated
28 March 2000 to remain in place until expiry of that undertaking on 31
March 2003 or its earlier expiry in accordance with paragraph 2 of its
provisions. If there is a claim by the Health Insurance Commission on that
undertaking pursuant to the provisions of the HIC Agreement, the provisions
of clauses 7.1 to 7.3 above will operate as between the Sellers and the
Buyer to determine the allocation of liability as between the Sellers and
the Buyer.
7.5 Transfer of Business Contracts capable of assignment without consent
With effect from Completion, the Sellers each assign to the Buyer all of the
interest of the Sellers arising under the Business Contracts that do not require
the agreement, consent or approval of a third party in order for the assignment
to be effective at law or in equity.
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7.6 Novation or Assignment of Business Contracts with consent
(a) The Sellers and the Buyer must use reasonable endeavours to novate, assign
(where novation is not possible) or subcontract (where novation or
assignment is not possible), with effect from the Completion Date from the
Sellers to the order of the Buyer, all the Business Contracts:
(i) which are capable of novation, assignment or subcontracting with the
consent of a third party(s) to those contracts; and
(ii) on terms which, taken as a whole including any terms relating to the
novation or assignment, are no less favourable than the terms of the
relevant Business Contract, unless otherwise agreed.
(b) The Sellers and the Buyer must comply with paragraph (a) from the date of
this Agreement until all such Business Contracts are novated, assigned or
subcontracted.
7.7 Business Contracts held on trust
Without prejudice to clause 7.1, and unless and until the Business Contracts can
be assigned, novated or subcontracted in accordance with this clause 7:
(a) the Sellers shall hold such Business Contracts in trust for the Buyer from
the Completion Date;
(b) the Sellers shall do all things reasonably necessary to enable the Buyer to
enjoy the full benefit of such Business Contracts;
(c) the Buyer shall, as the Sellers' sub-contractor or agent, perform all the
obligations of the Sellers under such Business Contracts in accordance with
this clause 7; and
(d) the Sellers shall allow the Buyer to use property the subject of an Asset
Lease, as licensee from Completion until the transfer of the Asset Lease is
completed.
7.8 Assistance
Unless and until any Business Contracts are novated, assigned or subcontracted
under this Agreement, the Sellers will as directed by the Buyer and at the
Buyer's cost:
(a) enforce the Sellers' rights under such Business Contract against any other
party to the Business Contract;
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(b) provide access to all relevant books, documents and other information in
relation to such Business Contract as the Buyer may reasonably require from
time to time.
(c) do anything else reasonably requested by the Buyer to give the Buyer the
full benefit of such Business Contract.
7.9 Payments made in respect of Business Contracts
If any payment is made to the Sellers in respect of the Business Contracts,
other than in payment of a Receivable, after the Completion Date, the Sellers
shall receive the same as trustee for the Buyer, and shall account to the Buyer
for the same within 14 days of receipt.
7.10 Ongoing responsibilities
(a) All income, profits and benefits of the Business:
(i) up to the Completion Date, belong to the Sellers; and
(ii) after the Completion Date, belong to the Buyer.
(b) Except as provided elsewhere in this Agreement, all liabilities of the
Business including, without limitation, all expenses, rates, water rates,
insurance premiums, telephone, electricity and gas charges and other
outgoings:
(i) up to the Completion Date are the responsibility of the Sellers; and
(ii) after the Completion Date, are the responsibility of the Buyer,
unless liability specifically relates to an Excluded Contract or Excluded
Asset in which case the liability is the responsibility of the Sellers.
(c) The Sellers shall indemnify and keep fully indemnified the Buyer from any
claims brought or made against or incurred by the Buyer in relation to the
liabilities of the Business referred to in paragraph (b) (other than
liability specifically relating to an Excluded Contract or Excluded Asset)
above up to the Completion Date, and the Buyer shall indemnify and keep
fully indemnified the Sellers from any claims brought or made against or
incurred by the Sellers in relation to the liabilities of the Business
referred to in paragraph (b) above after the Completion Date.
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7.11 Circular
Subject to the prior consent of BT Pty Ltd, the Buyer may on or at any time on
or before Completion and at the Buyer's expense, send a circular:
(a) in a form agreed upon by BT Pty Ltd;
(b) to persons who have had dealings with the Sellers in connection with the
Business; and
(c) announcing the transfer, subject to Completion, to the Buyer of the
Business.
7.12 Access to Business Records
The Buyer must retain all the Business Records delivered by the Sellers to the
Buyer at the Completion Date for 7 years and promptly make available to the
Sellers, in a timely and diligent manner, such personnel, information,
documentation, records and files which are reasonably required by the Sellers
for any purpose relating to:
(a) the affairs of the Business as operated by the Sellers prior to the
Completion Date;
(b) any claim against or proceeding involving the Sellers; or
(c) the completion of the Sellers' tax return or the Sellers' other Tax
obligations, whether they arise after or prior to the Completion Date,
save to the extent access would breach legal professional privilege or any
confidentiality agreement, in which case the Buyer must use best endeavours to
provide the relevant access.
7.13 Access to Excluded Business Records
The Sellers must retain (in Sydney) all the Excluded Business Records for 7
years and promptly make available to the Buyer, in a timely and diligent manner,
such personnel, information, documentation, records and files which are
reasonably required by the Buyer for any purpose relating to:
(a) the affairs of the Business as operated by the Buyer after the Completion
Date;
(b) any claim against or proceeding involving the Buyer; or
(c) the completion of the Buyer's Tax return and the Buyer's other Tax
obligations, whether they arise after or prior to the Completion Date,
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save to the extent that such provision would breach legal professional privilege
or any confidentiality agreement, in which case the Sellers must use best
endeavours to provide the relevant access.
7.14 Access by BT Pty Ltd
The Buyer grants a licence for 4 months from the Completion Date to BT Pty Ltd
and up to 2 of its employees to use and access any of the Business Assets
without charge and on the same terms that the Buyer and the Transferring Persons
use the Business Assets, provided that such use is reasonably necessary for the
continuation of BT Pty Ltd's operations in Australia after Completion and that
such use is in accordance with this Agreement and the terms of the Distribution
Agreement.
7.15 Information Technology Transition Plan
Prior to Completion, the parties will work together in good faith to develop an
agreed Information Technology Transition Plan and after the Completion Date, the
Parties will use their reasonable endeavours to ensure the implementation of
that plan.
8. EMPLOYMENT AND SUPERANNUATION
8.1 Offer
(a) conditional offer: Within ten Business Days after the execution of this
Agreement or as otherwise agreed, the Buyer must offer in writing (on terms
which have been approved in writing by BT Pty Ltd) to employ each Employee
or contract with each Contractor, conditional on Completion occurring and
effective from the Completion Date, on terms which are substantially
similar to the terms offered by BT Pty Ltd to that Employee or that
Contractor as at the date of this Agreement (Offer).
(b) acceptance: The Offer must require an Employee or Contractor to advise the
Buyer or BT Pty Ltd of the Employee's or Contractor's acceptance within 5
Business Days of the date of the Offer.
(c) advice of acceptance or non-acceptance: If an Employee or Contractor
advises a party that the Employee or Contractor accepts or does not accept
the Offer, then the notified party must immediately notify the other party
accordingly.
(d) reasonable assistance: BT Pty Ltd must use reasonable endeavours to
encourage the Employees and Contractors to accept the Offer.
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8.2 Payment of Employee Entitlements
(a) BT Pty Ltd will be responsible for Employee Entitlements and Redundancy
Payouts for the Excluded Persons.
(b) The Buyer will be responsible for payment of all Employee Entitlements
accruing:
(i) prior to the Completion Date, subject to paragraph (e), for all the
Transferring Persons; and
(ii) after the Completion Date for all the Transferring Persons.
(c) The parties note that Employee Entitlements of the Transferring Persons
accruing prior to the Completion Date will be adjusted in the Adjustment
Statement in accordance with clause 5.1(a) and paragraph (e) below.
(d) Any Redundancy Payouts of Employees subsequent to the date of this
Agreement will be payable by Buyer. The Sellers will reasonably co-operate
with the Buyer in good faith to mitigate the amount of any Redundancy
Payouts to Employees payable by the Buyer.
(e) Upon Completion, BT Pty Ltd shall payout in cash any annual leave
entitlement of any Transferring Person exceeding 10 days.
(f) Upon Completion, BT Pty Ltd shall payout in cash to each Employee any
accrued bonus or commission or profit-sharing entitlement, and any
commission entitlement that has accrued as at Completion but for payment by
a customer to BT Pty Ltd.
8.3 Termination and Release
BT Pty Ltd must release all Employees from employment and all Contractors from
the terms of their contracts of engagement with BT Pty Ltd, with effect on the
Completion Date.
8.4 Superannuation
(a) With effect from the Completion Date, the Buyer must ensure that the
trustee of the Industry Fund is notified that each Transferring Person who
is a member of the Industry Fund at the Completion Date has become employed
by the Buyer. BT Pty Ltd must use its reasonable endeavours to procure that
the trustee of the Industry Fund agrees to the Buyer becoming a
participating employee in the Industry Fund.
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(b) On or before Completion, BT Pty Ltd must pay the applicable contributions
to the Industry Fund in respect of each Transferring Person.
8.5 Indemnity
Effective from the Completion Date, the Buyer must indemnify and keep the
Sellers indemnified against any liability to:
(a) any Transferring Person for any Employee Entitlements, whether the
entitlements accrued prior to or after the Completion Date, except for any
annual leave entitlements which are the responsibility of BT Pty Ltd
pursuant to clause 8.2(e);
(b) any Employee for any Redundancy Payouts; and
(c) any Contractor, other than any Excluded Person, for any claim for breach of
the terms of their contract of engagement as a result of the Sellers'
complying with their obligations pursuant to clause 8.3.
8.6 Bonus entitlements and share options
The parties acknowledge that the Buyer shall have no liability for the payment
to Transferring Persons of any bonus payments under BT Pty Ltd's bonus incentive
scheme, any compensation arising from the loss of such Transferring Persons'
entitlements under BT plc's share option plan or for any other payments other
than as specifically set out in Schedule 6.
9. LOCAL INTELLECTUAL PROPERTY
9.1 Subject to clause 9.2 and effective from the Completion Date, the Sellers
assign the Local Intellectual Property to the Buyer.
9.2 The Buyer hereby grants to each of the Sellers, BT plc and its and their
Related Bodies Corporate a perpetual, irrevocable, transferable,
royalty-free licence to use or otherwise exploit in any way the Local
Intellectual Property anywhere outside ANZ (as that term is defined in the
Distribution Agreement) and, to the extent that it is necessary for the
Sellers or their Related Bodies Corporate to service customers not being
transferred to the Buyer hereunder, inside ANZ.
9.3 For the avoidance of doubt, no warranty is given by the Sellers as to the
ownership of the Local Intellectual Property.
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10. CONDUCT AFTER COMPLETION
Subject to clause 9, the Distribution Agreement and the Trusted World Partner
Agreement will govern the conduct of the parties from the Completion Date in
relation to the Intellectual Property of the Sellers, BT plc and Baltimore
Ireland and the carrying on of the Business while using that Intellectual
Property.
11. WARRANTIES
11.1 Giving of Warranties by the Warrantors
(a) The Warrantors jointly and severally represent and warrant to the Buyer
that each of the Seller Warranties is true and correct:
(i) as at the date of this Agreement;
(ii) on each day up to Completion; and
(iii) as at Completion,
subject to any facts adequately disclosed in the Disclosure Letter.
(b) Subject to clause 11.3, the Warrantors jointly and severally acknowledge
that the Buyer has entered into this Agreement in reliance on the Seller
Warranties.
(c) Each Seller Warranty must be construed independently and is not limited by
reference to another Seller Warranty.
(d) The Seller Warranties survive Completion.
11.2 Limitation on claims
The total liability of the Warrantors for breach of any Seller Warranty or for
or in relation to any fact, matter or circumstance within the subject matter of
a Seller Warranty, whether such claim is based on principles of contract or tort
law or under any statute, under clause 11.1 is limited as follows:
(a) period: the Buyer may only make a claim for breach of a Seller Warranty
(Claim) if it has given written notice to the Sellers of the general nature
of the Claim on or before 30 September 2003;
(b) minimum claim: the Buyer must not make a Claim unless the Claim or a series
of like Claims have a value in excess of $20,000;
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(c) minimum amount: the Buyer must not make a Claim until the total of its
Claims exceeds $100,000, in which case the Buyer may claim the whole amount
and not just the excess; and
(d) maximum amount: the maximum total amount which the Buyer may recover from
the Warrantors for all Claims (excluding interest and the costs and
expenses of making Claims) is $3,000,000.
11.3 Effect of Prior Knowledge
The Buyer acknowledges that it shall have no right to damages or compensation
arising in consequence of any breach of any of the Seller Warranties where the
Buyer actually knew of the breach prior to the Completion Date. The parties
acknowledge that the Buyer has conducted its own investigations into the
Business and the Business Assets prior to the Completion Date.
11.4 Effect of Fraud etc
Clauses 11.2 and 11.3 shall not apply to limit a claim by the Buyer for breach
of a Seller Warranty where such claim arises from the fraud, dishonesty or
wilful misrepresentation of a Warrantor.
12. CONFIDENTIALITY
Subject to the provisions of the Distribution Agreement concerning confidential
information, a party may not disclose the provisions of this Agreement, any
information obtained by such party as a result of participation in the
Integration Committee or the Sellers' provision of Business Records or copies of
Excluded Records pursuant to clause 6.3, or the terms of sale of the Business
Assets to any person except:
(a) after obtaining the written consent of the other parties;
(b) to its officers, employees, professional advisers, financiers, insurance
brokers and potential professional investors in the Buyer; or
(c) as required by an applicable law,
and must use its best endeavours to ensure all permitted disclosures are kept
confidential.
13. COSTS AND EXPENSES
13.1 Each party must pay its own costs and expenses of negotiating, preparing,
signing, delivering and registering this Agreement and any other agreement
or document entered into or signed under this Agreement.
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13.2 A party must bear the costs and expenses of performing its obligations
under this Agreement, unless otherwise provided in this Agreement or a
Related Agreement.
14. GST AND TAX
14.1 Consideration exclusive of GST
(a) Any consideration or payment obligation in this Agreement is exclusive of
GST unless stated otherwise.
(b) Subject to clause 2.4, if a Supply made under or in connection with this
Agreement is a Taxable Supply, the recipient of that Supply (Recipient)
must pay to the party that made that Supply (Supplier) an amount equal to
the GST payable on that Supply unless the amount payable for that Supply is
expressly stated to be inclusive of GST.
(c) Subject to clause 14.2, unless otherwise agreed by the parties, the
additional amount under paragraph (b) is payable at the same time and in
the same manner as the consideration for the Supply to which the additional
amount relates.
14.2 Tax Invoice
A party which receives consideration, whether monetary or otherwise, for a
Taxable Supply under this Agreement, must give the other party a Tax Invoice in
a form which complies with the GST Law within 10 Business Days after the end of
the month in which any consideration is paid, or an invoice issued, in relation
to the Supply, whichever occurs first.
14.3 Payments
Unless otherwise stated in this Agreement, the following principles apply when
determining the amount of a payment under this Agreement:
(a) if a party is entitled under this Agreement to be reimbursed or indemnified
by another party for an expense, claim, loss, liability or cost incurred in
connection with this Agreement, the reimbursement or indemnity payment must
not include any GST component of the expense, claim, loss, liability or
cost for which an Input Tax Credit may be claimed; and
(b) if a party sets off an amount under this Agreement, the same principles
apply to calculate the amount to be set-off as if the amount had been paid
in accordance with paragraph (a).
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14.4 Adjustment Event
If an Adjustment Event occurs, the parties must do all things necessary to make
sure that the Adjustment Event may be properly accounted for, including the
issue of an Adjustment Note.
14.5 Tax
The Buyer must pay any stamp duty which arises from the execution, delivery and
performance of this Agreement and each agreement or document entered into or
signed under or for the purposes of the performance of this Agreement.
15. DISPUTE RESOLUTION
15.1 Dispute not to affect performance of duties
Subject to any contrary provision in this Agreement the parties will not be
relieved from performing their obligations under this Agreement because of the
existence of any dispute.
15.2 Dispute resolution process
(a) Any dispute or difference which arises between parties in respect of any
aspect of this Agreement, except in relation to clause 5.1, (Dispute) must
be dealt with in accordance with this clause 15.
(b) Each party may refer a Dispute or difference to each party's managing
director for resolution by serving notice in writing upon the other party
to the Dispute.
(c) If the managing directors of each party to the Dispute are unable to
resolve the Dispute or difference within 21 days of its referral (or such
longer period agreed between the parties to the Dispute), the Dispute must
be dealt with in accordance with clause 15.3.
15.3 Dispute
(a) In respect of a Dispute referred by clause 15.2, the Dispute must be
referred for mediation administered by the Australian Commercial Disputes
Centre (ACDC).
(b) If the matter is referred for mediation under paragraph (a):
(i) the mediator shall be the person agreed by the parties from a list of
names provided by the ACDC;
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(ii) failing agreement within 5 Business Days, the mediator shall be a
person appointed by the ACDC; and
(iii) the mediation shall be conducted in accordance with the ACDC
arbitration rules and the laws of the State of New South Wales.
(c) If the parties to the Dispute cannot resolve the Dispute within 60 days of
the matter being referred to mediation, a party may withdraw from the
mediation by notice in writing and this clause 15 will not longer apply in
respect of that Dispute.
16. GENERAL
16.1 Notices
(a) A notice or other communication given under this Agreement including, but
not limited to, a request, demand, consent or approval, to or by a party to
this Agreement:
(i) must be in legible writing and in English;
(ii) must be addressed to the addressee at the address or facsimile number
set out below or to any other address or facsimile number a party
notifies to the other party under this clause 16:
A. if to the Sellers or BT plc:
Address: 1310 Waterside, Arlington Business Park,
Theale Reading, Berkshire, RG7 4SA, United
Kingdom
Attention: Simon Enoch
Facsimile: +44 (0) 118 903 9000; and
B. if to the Buyer:
Address: Level 18, 60 Albert Road, South Melbourne,
VIC 3205
Attention: The Company Secretary
Facsimile: +61 3 8696 9479
(iii) must be signed by an Officer or under the common seal of a sender
which is a company; and
(iv) is deemed to be received by the addressee in accordance with paragraph
(b).
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(b) Without limiting any other means by which a party may be able to prove that
a notice has been received by another party, a notice is deemed to be
received:
(i) if sent by hand, when delivered to the addressee;
(ii) if by post, 7 Business Days from and including the date of postage; or
(iii) if by facsimile transmission, on receipt by the sender of an
acknowledgment or transmission report generated by the machine from
which the facsimile was sent,
but if the delivery or receipt is on a day which is not a Business Day or
is after 4.00 pm (addressee's time) it is deemed to be received at 9.00 am
on the following Business Day.
(c) A facsimile transmission is regarded as legible unless the addressee
telephones the sender within 2 hours after the transmission is received or
regarded as received under paragraph (b)(iii) and informs the sender that
it is not legible.
(d) In this clause 16, a reference to an addressee includes a reference to an
addressee's Officers, agents or employees.
16.2 Governing law
The laws of New South Wales govern this Agreement.
16.3 Jurisdiction
Each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales.
16.4 Invalidity
(a) If a provision of this Agreement or a right or remedy of a party under this
Agreement is invalid or unenforceable in a particular jurisdiction in which
this Agreement is being enforced or operates:
(i) it is read down or severed in that jurisdiction only to the extent of
the invalidity or unenforceability; and
(ii) it does not affect the validity or enforceability of that provision in
another jurisdiction or the remaining provisions in any jurisdiction.
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(b) This clause is not limited by any other provision of this Agreement in
relation to severability, prohibition or enforceability.
16.5 Amendments and Waivers
(a) This Agreement may be amended only by a written document signed by the
parties.
(b) A waiver of a provision of this Agreement or a right or remedy arising
under this Agreement, including this clause, must be in writing and signed
by the party granting the waiver.
(c) A single or partial exercise of a right does not preclude a further
exercise of that right or the exercise of another right.
(d) Failure by a party to exercise a right or delay in exercising that right
does not prevent its exercise or operate as a waiver.
16.6 Cumulative rights
The rights and remedies of a party under this Agreement do not exclude any other
right or remedy provided by law.
16.7 Non-merger
No provision of this Agreement, including the Seller Warranties and the Buyer
Warranties, merges on Completion.
16.8 Continuing indemnities and survival of indemnities
(a) Each indemnity contained in this Agreement is a continuing obligation
despite a settlement of account or the occurrence of an Insolvency Event or
any other thing, and remains fully effective until all money owing,
contingently or otherwise, under the indemnity has been paid in full.
(b) Each indemnity contained in this Agreement:
(i) is an additional, separate and independent obligation and no one
indemnity limits the generality of another indemnity; and
(ii) survives the termination of this Agreement.
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16.9 Payments
A payment which is required to be made under this Agreement must be in cash or
by bank cheque or in other immediately available funds and in Australian
dollars.
16.10 Further assurances
After Completion each party must provide (and cause its personnel to provide) to
the other party and its Related Bodies Corporate such assistance as may be
reasonably required by the other party and its Related Bodies Corporate in
relation to perfecting the sale and purchase contemplated under this Agreement
and the Related Agreements.
16.11 Specific performance
Each party acknowledges that monetary damages alone would not be adequate
compensation to the other party for the first party's breach of its obligations
under this Agreement and that specific performance of those obligations is an
appropriate remedy.
16.12 Entire agreement
(a) This Agreement supersedes all previous agreements about its subject matter
and embodies the entire agreement between the parties.
(b) The Buyer acknowledges that no representations or warranties in connection
with the sale of the Business or the Business Assets have been made by
either of the Sellers or BT plc or anyone on behalf of a Seller other than
the Seller Warranties.
(c) The Sellers acknowledge that no representations or warranties in connection
with the sale of the Business or the Business Assets have been made by the
Buyer or anyone on behalf of the Buyer other than the Buyer Warranties.
16.13 Third party rights
Only the parties to this Agreement have or are intended to have a right or
remedy under this Agreement or obtain a benefit under it.
16.14 Legal Advice
Each party acknowledges that it has received legal advice about this Agreement.
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16.15 No Assignment
Except as provided for under this Agreement or a Related Agreement, a party may
not assign this Agreement or otherwise transfer the benefit of this Agreement or
a right or remedy under it, without first obtaining the written consent of the
other parties.
16.16 Counterparts
This Agreement may be signed in any number of counterparts and all those
counterparts together make one instrument.
17. SELLER GUARANTEE
17.1 BT plc guarantee
In consideration of the Buyer agreeing to enter into this Agreement with the
Sellers, BT plc hereby guarantees the due and punctual performance of the duties
and obligations on the part of the Sellers of all and any of the provisions of
this Agreement, and BT plc shall, upon receipt of fourteen (14) days' written
notice from the Buyer, rectify and make good any default by the Sellers in the
performance or observance of any of the provisions of this Agreement, unless the
Sellers are relieved from such performance or observance by another provision of
this Agreement or, subject clause 17.2(b), by a court of competent jurisdiction
or otherwise by law.
17.2 Continuing guarantee
(a) The guarantee set out in clause 17.1 shall continue and BT plc shall not be
discharged or released from such guarantee, notwithstanding any indulgence
or compromise granted by the Buyer to the Sellers or forbearance on the
part of the Buyer towards the Sellers, whether as to payment, time,
performance or otherwise, or in the event of the insolvency or dissolution
of the Sellers.
(b) If any payment or the satisfaction of any duty or obligation by the Sellers
under this agreement is void, voidable, or unenforceable or is claimed by
Buyer on a reasonable basis to be so, whether due to the insolvency of a
Seller or otherwise, then BT plc agrees to make such payment or perform or
observe such duty or obligation and the guarantee in clause 17.1 shall
continue to apply in respect of the same.
18. BUYER NOMINEE COMPANY AND GUARANTEE
18.1 Appointment by Buyer of Nominee to Nominated Business Assets
(a) The Buyer may by notice to the Sellers given not later than two Business
Days prior to Completion nominate another corporation or corporations
(Nominated RBC), as specified in the notice, as the purchaser of any of the
Business Assets
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as specified in the notice (Specified Business Assets). If the Buyer gives
such a notice and this Agreement proceeds to Completion, on Completion the
Sellers will transfer the Specified Business Assets to the Nominated RBC in
accordance with the notice, and otherwise in all respects in accordance
with and subject to the provisions of this Agreement.
(b) The Nominated RBC must be a Related Body Corporate of the Buyer in which
the Buyer holds more than 50 per cent of the issued share capital or in
relation to which the Buyer has the ability to exercise effective
managerial control through the right to appoint a majority of the Board of
Directors of that entity.
18.2 Buyer guarantee
In consideration of the Sellers agreeing to enter into this Agreement in terms
which permit the Buyer to nominate a Nominated RBC in accordance with clause
18.1 above, the Buyer hereby guarantees the due and punctual performance of the
duties and obligations on the part of each Nominated RBC of all and any of the
provisions of this Agreement, and the Buyer shall, upon receipt of fourteen (14)
days' written notice from the Sellers, rectify and make good any default by any
Nominated RBC in the performance or observance of any of the provisions of this
Agreement, unless the Buyer is relieved from such performance or observance by
another provision of this Agreement or, subject to clause 18.3(b), by a court of
competent jurisdiction or otherwise by law.
18.3 Continuing guarantee
(a) The guarantee set out in clause 18.2 shall continue and the Buyer shall not
be discharged or released from such guarantee, notwithstanding any
indulgence or compromise granted by the Sellers to the Nominated RBC or
forbearance on the part of the Sellers towards any Nominated RBC, whether
as to payment, time, performance or otherwise, or in the event of the
insolvency or dissolution of any Nominated RBC.
(b) If any payment or the satisfaction of any duty or obligation by any
Nominated RBC under this agreement is void, voidable, or unenforceable or
is claimed by either Seller on a reasonable basis to be so, whether due to
the insolvency of a Nominated RBC or otherwise, then the Buyer agrees to
make such payment or perform or observe such duty or obligation and the
guarantee in clause 18.2 shall continue to apply in respect of the same.
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SCHEDULE 1
BUSINESS ASSETS AND EXCLUDED CONTRACTS AND EXCLUDED ASSETS (Clause 2.1)
PART 1 - BUSINESS ASSETS
The Business Assets less the Excluded Contracts and Excluded Assets.
PART 2 - EXCLUDED CONTRACTS AND EXCLUDED ASSETS
Excluded Contracts and Excluded Assets are:
(a) all leases of real property under which BT Pty Ltd is the lessee except the
Artarmon Property Lease;
(b) cash, including, but not limited to, funds held with a bank or financial
institution to the credit of a Seller and cash on hand as at the Completion
Date;
(c) non-disclosure agreements;
(d) Customer Contracts which have been fully performed and where no further
services are to be supplied under such Contracts;
(e) the Seller Group Guarantees;
(f) the Unconditional Financial Undertaking provided by the Australia and New
Zealand Banking Group Limited Number 09300/2059 dated 28 March 2000;
(g) the Intellectual Property (excluding the Local Intellectual Property and
the domain name www.secdom.com.au);
(h) the Receivables;
(i) all assets located in the Singapore and Hong Kong offices of BT Pty Ltd;
(j) all contracts of insurance;
(k) the ANZ and Baltimore Technologies Pty variation of bank facilities as
accepted on 23 November 2001;
(l) certain computer hardware (comprised of 4 Cisco units and 1 Ravlin unit)
which is used globally by Baltimore outside of ANZ;
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(m) Signage Agreement between Citicap Pty Ltd and Baltimore Technologies Pty
Ltd dated 8 February 2001; and
(n) if the Purchaser does not occupy the Property after Completion, the Car
Parking Licence.
Page 2
SCHEDULE 2
WARRANTIES (Clause 11)
PART 1: SELLER WARRANTIES
1. AUTHORITY
1.1 Status: Each Seller and BT plc is a corporation with limited liability and
it is properly incorporated or taken to be incorporated or registered and
validly existing under the Corporations Act or, in the case of BT plc, the
applicable legislation in the place of incorporation.
1.2 Authority: Each Seller and BT plc has taken all necessary action it can
take within its control to authorise the signing, delivery and performance
of this Agreement and the documents required under this Agreement in
accordance with their respective terms.
1.3 Power to sell: Each Seller and BT plc has power to enter into and perform
its obligations under this Agreement and can do so without the consent of
any other person (except for consents required under the Business
Contracts).
1.4 No breach: The signing and delivery of this Agreement and the performance
by each Seller and BT plc of its obligations under it complies with:
(a) each applicable law and Authorisation;
(b) any orders, judgments or decree of any court or Government Agency
binding the Seller and BT plc;
(c) the Seller's and BT plc's constitution;
(d) a Security Interest or other document or agreement binding on the
Seller and BT plc.
1.5 Binding obligations: This agreement and all other agreements contemplated
by this Agreement will, when executed by each Seller and BT plc, constitute
binding obligations of the Seller and BT plc in accordance with their
respective terms.
1.6 Winding up: No:
(a) meeting has been convened, resolution proposed, petition presented or
order made for the winding up of either of the Sellers or BT plc;
Schedule 2, page 1
(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 either of the Sellers or BT plc; or
(c) mortgagee or chargee has taken, attempted or indicated an intention to
exercise its rights under any security of which either of the Sellers
or BT plc is the mortgagor or chargor.
1.7 Insolvency: Each Seller and BT plc:
(a) is not insolvent within the meaning of section 95A of the Corporations
Act 2001 (Cth);
(b) has not stopped paying its debts as and when they fall due; and
(c) is not subject to administration or similar status under Part 5.3A of
the Corporations Act 2001 (Cth) or similar legislation.
2. TITLE
2.1 Ownership: Subject to the terms of the Business Contracts, either BT Pty
Ltd or CAPL is the legal and beneficial owner of the Business Assets
(excluding the Asset Leases, the Local Intellectual Property, the Pyrmont
Property Lease and the Artarmon Property Lease).
2.2 Business Assets: Subject to the terms of the Business Contracts, the
Business Assets, excluding the Asset Leases, the Local Intellectual
Property, the Pyrmont Property Lease and the Artarmon Property Lease, are:
(a) fully paid for;
(b) in the Sellers' possession; and
(c) used for the purposes of the Business and utilised in the Business.
2.3 Asset Leases: The Asset Leases, are:
(a) paid in accordance with their terms;
(b) in the Sellers' possession; and
(c) used for the purposes of the Business and utilised in the Business.
2.4 Security Interests: no Business Asset is subject to any Security Interest.
Schedule 2, page 2
2.5 Compliance with law: The Sellers' conduct of the Business and ownership and
use of the Business Assets complies, and has complied with, all applicable
laws and Authorisations.
2.6 Authorisations: Each Seller has and had all applicable Authorisations to
conduct the Business and use the Business Assets and all such Authorisation
are valid and the Sellers have not received any notice that any
Authorisation may or will be revoked suspended, modified or not renewed.
3. ACCURACY OF INFORMATION
3.1 Information: The information given to the Buyer or its advisers by or on
behalf of each Seller or its advisers about the sale of the Business,
including the information in the Schedules and in the Disclosure Letter,
is:
(a) true in all respects; and
(b) comprises all information which would be material to a buyer for value
of the Business and the Business Assets.
4. PYRMONT PROPERTY LEASE
4.1 Occupation: Subject to the terms of the Pyrmont Property Lease, BT Pty Ltd
has exclusive occupation and quiet enjoyment of the Property.
4.2 Title: BT Pty Ltd has provided the Buyer with all documents constituting
the Pyrmont Property Lease or true copies of those documents.
4.3 No breach: BT Pty Ltd is not in material breach of the Pyrmont Property
Lease.
4.4 No notices: BT Pty Ltd has not received any material outstanding notices or
orders from the lessor of the property or a Government Agency:
(a) for the compulsory acquisition or resumption of any part of the
Property; or
(b) which may materially adversely affect the Property or the use of it by
BT Pty Ltd.
5. BUSINESS CONTRACTS
5.1 Nature: The Business Contracts are:
(a) on arm's length terms; and
Schedule 2, page 3
(b) within the ordinary course of the Business.
5.2 Disclosure:
(a) All contracts material to the operation of the Business have been
disclosed to the Buyer.
(b) The Sellers have disclosed to the Buyer all material agreements, side
agreements, side letters or other arrangements of legal force or
effect in relation to a Business Contract made between a Seller and
any other party to a Business Contract.
5.3 Binding and enforceable: So far as each Seller is aware each of the
Business Contracts is valid, binding and enforceable against the parties to
it.
5.4 No material breaches: So far as each Seller is aware, there are no material
breaches of any Business Contract.
6. EMPLOYEES
6.1 List of Employees: Schedule 6 comprises a complete list of the Employees
and Contractors of BT Pty Ltd employed in the Business as at the date of
this Agreement and their respective entitlements as at that date to wages,
salaries, annual leave and leave loading, long service leave, sick leave
and superannuation, excluding entitlements under:
(a) BT Pty Ltd's bonus incentive scheme; and
(b) BT plc's share option plan.
6.2 Disputes: The Sellers have not been involved in any material industrial
dispute with an Employee at any time within the period of 12 months before
the date of this Agreement and the Sellers do not know of any circumstances
likely to give rise to any material industrial dispute.
6.3 Compliance: The Sellers comply and have complied with their obligations
under each agreement, statute law, industrial award, enterprise agreement,
or code of conduct relating to the Employees in all material respects.
6.4 Employee records: BT Pty Ltd has kept adequate and suitable records
regarding the Employee Entitlements of each Transferring Person and such
records are contained in the Business Records.
Schedule 2, page 4
6.5 No other terms: No person listed in Schedule 6 is entitled to receive any
payment or other material benefit associated with their employment, except
as disclosed in Schedule 6.
7. SUPERANNUATION
7.1 Contributions: As at the Completion Date, BT Pty Ltd has made all
superannuation contributions as required by law and the contracts of
employment for each Transferring Person, and no amount is due or payable by
BT Pty Ltd to the Industry Fund or any other superannuation fund in respect
of any Transferring Person.
8. LITIGATION
8.1 No current or pending litigation: So far as the Sellers are aware, there is
no current, pending or threatened investigation, prosecution, litigation,
arbitration or similar proceedings which would have a material adverse
effect on the Business, the Business Assets or the Property.
9. RECORDS
9.1 Possession : The Business Records are in the possession or under the
control of the Sellers at the Property.
9.2 True: The Business Records are true and accurate in all material respects.
9.3 Material: The originals or copies of all Business Records which might
reasonably be expected to be material to a prudent intending purchaser of
the Business and which ought to be in the possession of the Sellers are in
their possession or under their control and will be delivered to the Buyer
at Completion.
10. INTELLECTUAL PROPERTY
10.1 Rights to Use: The Intellectual Property (excluding Local Intellectual
Property) of the Sellers, BT plc and Baltimore Ireland which is used by the
Business will be:
(a) the subject of the Distribution Agreement; or
(b) the subject of the Trusted World Partner Agreement.
10.2 Valid software licences: As at the Completion Date the software necessary
for the operation of the Business is validly licensed and will be
transferred to the Buyer, other than software applications currently made
available through or resident on the Baltimore global intranet.
Schedule 2, page 5
10.3 Third Party infringement: So far as the Sellers are aware, the Intellectual
Property (excluding Local Intellectual Property) created or owned by the
Sellers, BT plc and Baltimore Ireland which is used by the Business does
not infringe the intellectual property rights of third parties.
11. COMPUTER SYSTEMS AND SOFTWARE
11.1 Computers: The computers and computer systems owned or used by the Sellers
for the Business:
(a) are in operating order and are fulfilling the purposes for which they were
acquired or established;
(b) have adequate capacity for the Business's needs as at Completion;
(c) are properly documented so as to enable them to be used and operated by
appropriately qualified personnel; and
(d) are owned and under the sole control of the Sellers.
12. SELLERS' KNOWLEDGE AND AWARENESS
For the purpose of the Seller Warranties, references to the knowledge or
awareness of a Seller means the knowledge of that Seller, after having made
reasonable enquiries of the following persons:
(a) Bijan Khezri;
(b) Simon Enoch;
(c) Gavin Egan;
(d) John Palfreyman;
(e) Louise Olle;
(f) Rory Brennan; and
(g) Mark Bower.
Schedule 2, page 6
PART 2: BUYER WARRANTIES
1. AUTHORITY
(a) Status: The Buyer is a corporation with limited liability and is properly
incorporated or taken to be incorporated or registered and validly existing
under the Corporations Act.
(b) Authority: The Buyer has taken all necessary action it can take within its
control to authorise the signing, delivery and performance of this
Agreement and the documents required under this Agreement in accordance
with their respective terms.
(c) Power to Buy: The Buyer has power to enter into and perform its obligations
under this Agreement and can do so without the consent of any other person
(except for consents required under the Business Contracts).
(d) No Breach: The signing and delivery of this Agreement and the performance
by the Buyer of its obligations under this Agreement complies with:
(i) each applicable law and Authorisation;
(ii) any orders, judgments or decree of any court or Government Agency
binding the Buyer;
(iii) the constitution of the Buyer; and
(iv) a Security Interest or other document or agreement binding on the
Buyer.
Schedule 2, page 7
SCHEDULE 3
PART 1: ASSET LEASES
- ---------------------------------------------------------------------------------------------------------------------------
Lease Lease Lease Currency
- ---------------------------------------------------------------------------------------------------------------------------
Lessor Description Start Finish Amount
- ---------------------------------------------------------------------------------------------------------------------------
1. Masterlease Hewlett Packard Server & Access. 26-May-97 26/05/99 6,166.03 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
2. Masterlease 7 Harris PCs , monitors, 16 CD Drives 15-Sept-97 15-Sep-00 20,141.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
3. Masterlease Photocopier - Xerox 1321 13-Apr-98 13-Apr-02 13,248.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
4. Masterlease 14 MC Economizer Desks. 12 Returns 18-May-98 18-May-02 6,646.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
5. Masterlease 6 Gateway GP6 -233 PCs 08-Jan-88 08-Jan-01 16,423.74 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
6. Macquarie Bank (1) 2 Gateway ALR Fileservers, 1 Gateway ALR 10-Dec-98 28-Dec-02 80,992.00 Adv AUD
7000 Fileserver, 3 Solo Notebooks, 1
Gateway GP6-PCs & Assoc equip
- ---------------------------------------------------------------------------------------------------------------------------
7. Macquarie Bank (1) 7 5100 Solo Notebooks, 6 gateway GP6-333 10-Dec-98 28-Mar-02 46,698.00 Adv AUD
PCs & Assoc Equip, 2 Solo 5100 Notebooks,
4 Gateway GP6-350 PCs & Assoc Equip
- ---------------------------------------------------------------------------------------------------------------------------
8. Macquarie Bank (1) 2 Solo 5150 laptops, 8 Gateway GP6-333 PCs 10-Dec-98 15-Oct-01 31,132.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
9. Macquarie Bank (1) 12 Gateway GP6-300 PCs, Full Towers & 10-Dec-98 09-Dec-01 58,716.00 Adv AUD
Assoc Equip, 3 Solo 5100 LS Notebook
14.1 XGA laptops
- ---------------------------------------------------------------------------------------------------------------------------
10. Macquarie Bank (1) 5 Cisco Routers & assoc. equipment, 04-Dec-98 04-Dec-01 80,977.00 Adv AUD
cabling, from Smartsource Solutions
- ---------------------------------------------------------------------------------------------------------------------------
11. Macquarie Bank (1) Centari Systems, Cammeray: HP Net Server 04-Dec-98 04-Dec-01 34,735.00 Adv AUD
LC 3 P11400 1 HS, HP Kayak XA-s PII/400
Dual Processor
- ---------------------------------------------------------------------------------------------------------------------------
12. Macquarie Bank (1) Sale Leaseback: 12 Gateway GP6-350 PCs 04-Dec-98 04-Dec-01 42,786.00 Adv AUD
and associated Equipment
- ---------------------------------------------------------------------------------------------------------------------------
13. Masterlease 1 Quicker Boardroom Table 3250*1650, 20-Nov-98 19-Nov-01 9,851.00 Adv AUD
American Cherry, Workstation, Executive
Chairs, Budget Upright Workstat, Key
Cabinet
- ---------------------------------------------------------------------------------------------------------------------------
14. Masterlease 5 GP6-350 PII-350 PCs and 4 Solo PII-300 13-Aug-99 12-Aug-02 37,161.00 Adv AUD
Laptops,
- ---------------------------------------------------------------------------------------------------------------------------
15. Xerox Finance Photocopier - Xerox L6 James PI 03-Feb-99 03-Feb-03 18,576.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
16. Xerox Finance Photocopier - West st 03-Feb-99 03-Feb-03 21,888.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
17. Xerox Finance Photocopier - Canberra 15-Mar-99 15-Mar-03 8,112.00 Adv AUD
- ---------------------------------------------------------------------------------------------------------------------------
18. MasterLease GP7-500 PIII-500 Video Conferencing 17-Jul-99 16-Jul-02 5,712.00 Adv AUD
Equipment
- ---------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Number of Total Payable Payable later
Payment Payments to make Future less than than 1 less
Frequency Total No. Reg. Rental at Reporting Date Commitments 1 Year than 2 Years
- --------------------------------------------------------------------------------------------------------------------------------
Lessor Pay Cost Payments: AUD Company Currency
- --------------------------------------------------------------------------------------------------------------------------------
1. Masterlease M 0 n/a 293.71 --
- --------------------------------------------------------------------------------------------------------------------------------
2. Masterlease M 0 n/a 663.19 -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
3. Masterlease M 48 n/a 276.00 4.00 1,104.00 1,104.00
- --------------------------------------------------------------------------------------------------------------------------------
4. Masterlease M 48 n/a 190.62 5.00 953.10 953.10 --
- --------------------------------------------------------------------------------------------------------------------------------
5. Masterlease M 36 n/a 548.60 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
6. Macquarie Bank (1) Q 12 n/a 7,408.28 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
7. Macquarie Bank (1) Q 12 n/a 4,271.23 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
8. Macquarie Bank (1) Q 12 n/a 2,847.62 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
9. Macquarie Bank (1) Q 12 n/a 5,368.52 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
10. Macquarie Bank (1) Q 12 n/a 8,063.59 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
11. Macquarie Bank (1) Q 12 n/a 2,658.86 -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
12. Macquarie Bank (1) Q 12 n/a 4,125.76 -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
13. Masterlease M 36 n/a 246.00 -- -- -- --
- --------------------------------------------------------------------------------------------------------------------------------
14. Masterlease M 36 n/a 1,496.28 9.00 13,466.52 13,466.52
- --------------------------------------------------------------------------------------------------------------------------------
15. Xerox Finance M 48 n/a 387.00 14.00 5,418.0 4,644.00 774.00
- --------------------------------------------------------------------------------------------------------------------------------
16. Xerox Finance M 48 n/a 456.00 14.00 6,384.00 5,472.00 912.00
- --------------------------------------------------------------------------------------------------------------------------------
17. Xerox Finance M 48 n/a 169.00 16.00 2,704.00 2,028.00 676.00
- --------------------------------------------------------------------------------------------------------------------------------
18. MasterLease M 36 n/a 249.38 4.00 997.52 997.52
- --------------------------------------------------------------------------------------------------------------------------------
Schedule 3, page 1
SCHEDULE 4
CUSTOMER CONTRACTS - BT PTY LTD
- --------------------------------------------------------------------------------------------------
SAP Cust. Purchase
No. Parties Date Contract name Order No
- --------------------------------------------------------------------------------------------------
2853 90East - end user: St 13-Jun-01 Developer Toolkit Maintenance and 870
George Bank Limited Support Agreement
- --------------------------------------------------------------------------------------------------
Alpnet exp18-Jan-02 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
2573 ALPNET Inc 29-Jan-01 Developer Toolkit Maintenance and 741
Support Agreement
- --------------------------------------------------------------------------------------------------
AMCOR exp20-Nov-01 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
APCA exp25-Nov-01 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
ASB Bank Limited, 27-Apr-02 Maintenance and Support Agreement 1228
New Zealand
- --------------------------------------------------------------------------------------------------
Austrac Maintenance and Support Agreement 913
- --------------------------------------------------------------------------------------------------
Austrade exp29-Jun-01 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
Australia and New 17-Dec-01 Amendment to Exhibit A of MSA 1093
Zealand Banking
Group Limited
- --------------------------------------------------------------------------------------------------
1837 Australia and New 30-Jun-00 License agreement 509
Zealand Banking
Group Limited
- --------------------------------------------------------------------------------------------------
1837 Australia and New Support Agreement
Zealand Banking
Group Limited
- --------------------------------------------------------------------------------------------------
1402 Australian Taxation 29-Mar-00 Software License Agreement E-Tax +
Office Support
- --------------------------------------------------------------------------------------------------
1402 Australian Taxation 05-Sep-01 IT00-086 - Maintenance and Support
Office (FormSecure)
- --------------------------------------------------------------------------------------------------
Australian Taxation 01-Nov-01 Agreement IT00-121 1102
Office
- --------------------------------------------------------------------------------------------------
Australian Taxation Deed of Agreement - CDOA-066
Office
- --------------------------------------------------------------------------------------------------
Australian Taxation 13-Feb-02 Ammendment No 5 to Contract No ITS
Office A99-151
- --------------------------------------------------------------------------------------------------
1402 Australian Taxation 26-Jun-01 ATO e-tax 2001 Security System 920
Office Redesign
- --------------------------------------------------------------------------------------------------
1403 Australian Trade 01-Jun-00 Software License and Services
Commission Agreement
- --------------------------------------------------------------------------------------------------
Australian Trade 03-Apr-02 Systems modifications to support use
Commission of Telstra Certificates
- --------------------------------------------------------------------------------------------------
Baycorp(ex 128i) exp15-Aug-01 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
Baycorp(ex 128i) exp30-Jan-01 Maintenance and Support Agreement
- --------------------------------------------------------------------------------------------------
beTrusted 12-Feb-01 Consulting Services Agreement 795
(PricewaterhouseCoop
ers LLP)
- --------------------------------------------------------------------------------------------------
Commonwealth of 16-Nov-98 Endorsed Supplier Arrangement Head
Australia (Department Agreement
of Finance and
Administration)
- --------------------------------------------------------------------------------------------------
Commonwealth of 30-Aug-01 Endorsed Supplier Arrangement Head
Australia (Department Agreement
of Finance and
Administration)
- --------------------------------------------------------------------------------------------------
Schedule 4, page 1
- -----------------------------------------------------------------------------------------------
SAP Cust. Purchase
No. Parties Date Contract name Order No
- -----------------------------------------------------------------------------------------------
1709 CSC Australia Pty 24-May-01 e-Defence Project
Limited
- -----------------------------------------------------------------------------------------------
DSTO exp29-Mar-02 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
Global IT Solutions exp03-Jul-02 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
1425 Health Insurance 01-Feb-00 Provision of Software License and
Commission Related Services
- -----------------------------------------------------------------------------------------------
Heritage Building exp22-Nov-01 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
KPMG exp20-Feb-02 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
Medibank exp24-May-02 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
Office of State exp05-Sep-02 Maintenance and Support Agreement
Revenue
- -----------------------------------------------------------------------------------------------
1618 PricewaterhouseCoop 29-Dec-00 Maintenance and Support Agreement 743
ers
- -----------------------------------------------------------------------------------------------
1433 Sienna Technologies 30-Mar-01 Developer Toolkit Maintenance and 843
Pty Ltd Support Agreement
- -----------------------------------------------------------------------------------------------
SmartCard exp05-Sep-02 Maintenance and Support Agreement
Applications
- -----------------------------------------------------------------------------------------------
St George 02-Apr-01 Maintenance and Support Agreement 846
- -----------------------------------------------------------------------------------------------
2745 St George Bank 04-Oct-01 Developer Toolkit Maintenance and 1048
Limited Support Agreement
- -----------------------------------------------------------------------------------------------
2745 St George Bank 02-Apr-01 License agreement 846
Limited
- -----------------------------------------------------------------------------------------------
2745 St George Bank 30-Mar-01 Consulting Services Agreement 846
Limited
- -----------------------------------------------------------------------------------------------
St George Bank 27-Mar-02 Amendment to Appendix 1 of Software 1188
Limited Licence Agreement
- -----------------------------------------------------------------------------------------------
Sullivan Nicolaides exp13-Sep-02 Maintenance and Support Agreement
Pathology
- -----------------------------------------------------------------------------------------------
Tapcorp Assets Pty exp13-Dec-01 Maintenance and Support Agreement
Limited
- -----------------------------------------------------------------------------------------------
Telstra exp17-Aug-02 Maintenance and Support Agreement 557
- -----------------------------------------------------------------------------------------------
1613 Telstra Corporation 30-Jun-00 Software License Agreement 557
Limited
- -----------------------------------------------------------------------------------------------
1613 Telstra Corporation 14-Aug-01 Consulting Services Agreement 998
Limited
- -----------------------------------------------------------------------------------------------
Telstra Corporation 21-Mar-02 Amendment to Appendix 1 of Software 1144
Limited Licence Agreement
- -----------------------------------------------------------------------------------------------
Telstra Corporation 18-Aug-00 Accreditation Agreement
Limited
- -----------------------------------------------------------------------------------------------
Telstra Corporation 14-Nov-01 Accreditation Agreement Amendment --
Limited No. 2
- -----------------------------------------------------------------------------------------------
Telstra Corporation 02-Apr-02 Accreditation Agreement Amendment
Limited No. 3
- -----------------------------------------------------------------------------------------------
Telstra Corporation 21-Mar-02 Amendment to Exhibit A of 1141
Limited Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
2839 The Marketplace 30-Mar-01 Maintenance and Support Agreement 846
Company Pty Ltd
- -----------------------------------------------------------------------------------------------
Velocity Systems exp04-Sep-02 Maintenance and Support Agreement
- -----------------------------------------------------------------------------------------------
Schedule 4, page 2
CUSTOMER CONTRACTS - CAPL
- ----------------------------------------------------------------------------------------------
SAP Cust. Purchase
No. Parties Date Contract name Order No
- ----------------------------------------------------------------------------------------------
1401 ASX Operations Pty 23-Dec-99 CA Services Agreement
Ltd
- ----------------------------------------------------------------------------------------------
1403 Australian Trade 01-Jul-00 Services Contract
Commission
- ----------------------------------------------------------------------------------------------
Australian Taxation 09-Mar-00 Provision of Facilities Management
Office Services for the ATO Tax Reform PKI
- ----------------------------------------------------------------------------------------------
Unknown Commonwealth of 20-Jan-00 Gatekeeper Head Agreement
Australia (Office for
Government Online)
- ----------------------------------------------------------------------------------------------
Unknown Cth of Australia 20-Nov-00 Gatekeeper Head Agreement
(National Officer for
the Information
Economy)
- ----------------------------------------------------------------------------------------------
Commonwealth of 08-Feb-99 Endorsed Supplier Arrangement Head
Australia (Department Agrement
of Finance and
Administration)
- ----------------------------------------------------------------------------------------------
Commonwealth of 30-Aug-01 Endorsed Supplier Arrangement Head
Australia (Department Agrement
of Finance and
Adminstration)
- ----------------------------------------------------------------------------------------------
1425 Health eSignature 29-Mar-00 Services Contract for Certification
Authority Pty Ltd Services
- ----------------------------------------------------------------------------------------------
Health eSignature 06-Apr-00 CA RA Agreement
Authority Pty Ltd
- ----------------------------------------------------------------------------------------------
Heritage Building 21-Feb-00 CA RA Services Agreement
Society
- ----------------------------------------------------------------------------------------------
1618 PricewaterhouseCoop Facilities Agreement
AU02 ers
- ----------------------------------------------------------------------------------------------
1613 Telstra Corporation Facilities Agreement 915
Limited
- ----------------------------------------------------------------------------------------------
Australian Taxation 09-Mar-00 ITOO-01
Office
- ----------------------------------------------------------------------------------------------
2745 St George Bank 16-May-01 Hosting Agreement
Limited
- ----------------------------------------------------------------------------------------------
Moneygator execution (contract unable to be located)
- ----------------------------------------------------------------------------------------------
Law Society of New (contract unable to be located)
South Wales
- ----------------------------------------------------------------------------------------------
Content Technologies E-Sweeper Hosting Agreement
- ----------------------------------------------------------------------------------------------
Schedule 4, page 3
SCHEDULE 5
OTHER CONTRACTS
TABLE 1 - MISCELLANEOUS
- -----------------------------------------------------------------------------------------------
No Parties Contract Name Contract Data
- -----------------------------------------------------------------------------------------------
1. Force Professional Security Security Services Contract Tax Invoice for
Services Pty Ltd and Baltimore security services
Technologies Pty Limited during the quarter
1/10/01 to 31/12/01
($572.00 for qtr)
- -----------------------------------------------------------------------------------------------
2 If the Buyer occupies the Property
subsequent to Completion, the Car
Parking Licence.
- -----------------------------------------------------------------------------------------------
TABLE 2 - SOFTWARE LICENCES FROM THIRD PARTIES
- ---------------------------------------------------------------------------------------
Number of
Licenses Licenses Term
- ---------------------------------------------------------------------------------------
Apex TrueGrid 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Borland 1 No provision
- ---------------------------------------------------------------------------------------
Cisco VPN 3000 Client 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Cisco VPN 3000 Concentrator Series 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Crescent QuickPak 1 No provision
- ---------------------------------------------------------------------------------------
InstallShield 5.1 Prof edn 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Intersolv Data ODBC Drivers V3.01 (GA) 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Intersolv Software License Agreement 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
McAfee 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Mercury Interactive Java add-on 4 No provision
- ---------------------------------------------------------------------------------------
Mercury Interactive Test Director Clients 3 No provision
- ---------------------------------------------------------------------------------------
Mercury Interactive Test Director 1 No provision
Repository
- ---------------------------------------------------------------------------------------
Mercury Interactive TestBytes 1 No provision
- ---------------------------------------------------------------------------------------
Mercury Interactive WEB test add-on 4 No provision
- ---------------------------------------------------------------------------------------
Mercury Interactive WinRunner 4 No provision
Professional
- ---------------------------------------------------------------------------------------
Microsoft Windows NT Workstation 115 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Microsoft Developer Network 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Microsoft Frontpage for Windows 32 bit 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Microsoft Frontpage for Windows 32 bit 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Microsoft Mastering MFC prof edn 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Microsoft NT Server V4.0 (client access 70 indefinite unless terminated
license)
- ---------------------------------------------------------------------------------------
Microsoft NT Server V4.0 (end user license) 75 client indefinite unless terminated
access; 8
processors
- ---------------------------------------------------------------------------------------
Microsoft NT Server V4.0 (server license) 3 No provision
- ---------------------------------------------------------------------------------------
Microsoft Office 97 Prof edn 1 indefinite unless terminated
- ---------------------------------------------------------------------------------------
Schedule 5, Page 1
- -----------------------------------------------------------------------------------
Number of
Licenses Licenses Term
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
Microsoft project V4.1 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Server Mail V2.1 1 No provision
- -----------------------------------------------------------------------------------
Microsoft Server Mail V2.1 client 5 No provision
- -----------------------------------------------------------------------------------
Microsoft Server Mail V2.1 PC Networks 5 No provision
- -----------------------------------------------------------------------------------
Microsoft SQL Server V7.0 (client access 5 indefinite unless terminated
license)
- -----------------------------------------------------------------------------------
Microsoft SQL Server V7.0 (end user 1 No provision
license)
- -----------------------------------------------------------------------------------
Microsoft Visual Basic V4.0 1 No provision
- -----------------------------------------------------------------------------------
Microsoft Visual C++ V4.0 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Visual C++ V5.0 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Visual J++ V1.1 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Windows 95 18 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Windows 98 17 indefinite unless terminated
- -----------------------------------------------------------------------------------
Microsoft Word 95 V7.0 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Oracle MS Windows NT Programmer 2000 1 No provision
- -----------------------------------------------------------------------------------
Rational 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Seagate 2 indefinite unless terminated
- -----------------------------------------------------------------------------------
Subclass-EZ Custom Control 1 No provision
- -----------------------------------------------------------------------------------
Symantec VCPE W5N 3.0 10 No provision
- -----------------------------------------------------------------------------------
VBAssist 3.0C 1 No provision
- -----------------------------------------------------------------------------------
VBCTL3D Custom Control 1 No provision
- -----------------------------------------------------------------------------------
Videosoft 1 No provision
- -----------------------------------------------------------------------------------
Virtual Media HDK 1 No provision
- -----------------------------------------------------------------------------------
Virtual Media HDK (QA dept license) 1 No provision
- -----------------------------------------------------------------------------------
Windows NT backup exec 1 indefinite unless terminated
- -----------------------------------------------------------------------------------
Windows NT Seagate backup exec 5 indefinite unless terminated
- -----------------------------------------------------------------------------------
Windows NT server client access license 5 indefinite unless terminated
- -----------------------------------------------------------------------------------
Windows NT Server diskeeper 7 No provision
- -----------------------------------------------------------------------------------
Winzip 1 No provision
- -----------------------------------------------------------------------------------
Schedule 5, Page 2
SCHEDULE 6
PART 1: EMPLOYEES AND CONTRACTORS
Schedule 6, Page 1
PART 2: EXCLUDED PERSONS
Excluded Persons are:
(a) John Palfreyman;
(b) Simon Laing;
(c) Robert Cook;
(d) Rory Brennan;
(e) Winston Wong;
(f) Michael Jeffries;
(g) David Pont;
(h) Royce Fraser;
(i) Tom Biskupic;
(j) Greg Colla;
(k) Paul Novak;
(l) Mahesh Shirali;
(m) Maureen Ure;
(n) Dorothy Richardson; and
(o) all employees located in the Singapore and/or Hong Kong offices of BT Pty
Ltd.
Schedule 6, page 2
SCHEDULE 7
CONDITIONS PRECEDENT
- --------------------------------------------------------------------------------------
No. Condition Benefiting Party/Parties
- --------------------------------------------------------------------------------------
1. Execution of the following agreements by all parties Buyer and Sellers
to them, and those agreements being completed subject
only to Completion occurring under this Agreement;
Distribution Agreement: Baltimore Ireland and the
Buyer sign the Distribution Agreement;
Trusted World Partner Agreement: BT plc and the
Buyer sign the Trusted World Partner Agreement;
SecureNet Professional Services Agreement: BT plc
and the Buyer sign the SecureNet Professional
Services Agreement;
Baltimore Professional Services Agreement: BT plc
and the Buyer sign the Baltimore Professional
Services Agreement.
- --------------------------------------------------------------------------------------
2. landlord's consent: the Sellers obtain: Buyer
A. written consent of the lessor under the
Artarmon Property Lease to the assignment of
the Artarmon Property Lease; and
B. written consent of the lessor under the Car
Parking Licence to its assignment to the
Buyer.
- --------------------------------------------------------------------------------------
3. Pyrmont Property Lease: the parties reaching Buyer
agreement with the landlord under the Pyrmont
Property Lease in accordance with clause 4.2(b).
- --------------------------------------------------------------------------------------
Schedule 7, page 1
- --------------------------------------------------------------------------------------
4. release of banker's undertakings: CAPL is released Sellers
from the banker's undertaking entered into by it in
relation to the Artarmon Property Lease.
- --------------------------------------------------------------------------------------
5. warranties true: none of the Seller Warranties are Buyer
or have become materially false, misleading or
incorrect.
- --------------------------------------------------------------------------------------
6. warranties true: none of the Buyer Warranties are or Sellers
have become materially false, misleading or
incorrect.
- --------------------------------------------------------------------------------------
7. Transferring Persons: that at least 75% of the Buyer and Sellers
Employees (excluding the Excluded Persons), including
the Key Employees, accept the Offer of employment
made by the Buyer pursuant to clause 8.1.
- --------------------------------------------------------------------------------------
8. Customer Contracts: that the Customer Contracts with Buyer
the Australian Taxation Office,
PriceWaterhousecoopers, Telstra Corporation Limited,
St George Bank Limited and eDefence/CSC are assigned
to the Buyer on terms that are acceptable to the
Buyer, acting reasonably and in good faith.
- --------------------------------------------------------------------------------------
9. HIC Dispute: that the Sellers resolve the dispute Buyer
between the Sellers and the Health Insurance
Commission in accordance with the proposed
settlement terms set out in the letter from BT Pty
Ltd to the Health Insurance Commission dated
1 May 2002 and attached to the Disclosure
Letter.
- --------------------------------------------------------------------------------------
10. Material adverse change: that there is no material Buyer and Sellers
adverse change between the date of this Agreement and
the Completion Date in respect of the aggregate value
of the Business Assets.
- --------------------------------------------------------------------------------------
Schedule 7, page 2
SCHEDULE 8
SELLER GROUP GUARANTEES
(a) The Health Insurance Commission performance guarantee entered into on 22
March 2000 whereby Baltimore Technologies plc provides guarantees and
indemnities to the Health Insurance Commission in respect of the
performance of obligations by Baltimore Technologies Pty Ltd to grant a
licence to the Health Insurance Commission for specified software and to
provide to the Health Insurance Commission certain support services. For
the avoidance of doubt, the Unconditional Financial Undertaking provided by
the Australia and New Zealand Banking Group Limited Number 09300/2059 dated
28 March 2000 also relates to the Health Insurance Commission performance
guarantee referred to in this paragraph, but is not a Seller Group
Guarantee.
(b) The Unconditional Performance Guarantee entered into on 27 April 1999
whereby Baltimore Technologies Pty Ltd provides guarantees and indemnities
to the Commonwealth of Australia, Department of Finance and Administration,
in respect of the performance of obligations under a head agreement between
Certificates Australia Pty Ltd and the Commonwealth of Australia to supply
to customers various information technology and telecommunications services
and products.
(c) The Unconditional Performance Guarantee entered into on 27 April 1999
whereby Zergo Holdings PLC provides guarantees and indemnities to the
Commonwealth of Australia, Department of Finance and Administration in
respect of the performance of obligations under a head agreement between
Certificates Australia Pty Ltd and the Commonwealth of Australia to supply
to customers various information technology and telecommunications services
and products.
Schedule 8, page 1
SCHEDULE 9
UNLICENSED SOFTWARE COST
as referred to in clause 5.1(a)(i)
License Procurement requirements for ANZ Operations as a standalone entity
Currency AU(pound) Currency STR(pound)
------------------ -------------------
Server Licenses $ 74,860 (pound)27,773
Client Licenses $163,410 (pound)60,625
$238,270 (pound)88,398
Schedule 9, page 1
SIGNED as an agreement.
SIGNED by Bijan Khezri as authorised
signatory for BALTIMORE TECHNOLOGIES
PTY LIMITED in the presence of:
- ----------------------------------------- ------------------------------------
Signature of witness Signature of Bijan Khezri
- -----------------------------------------
Name of witness (print)
SIGNED by Bijan Khezri as authorised
signatory for BALTIMORE TECHNOLOGIES
PLC in the presence of:
- ----------------------------------------- ------------------------------------
Signature of witness Signature of Bijan Khezri
- -----------------------------------------
Name of witness (print)
SIGNED by Bijan Khezri as authorised
signatory for BALTIMORE CERTIFICATES
AUSTRALIA PTY LIMITED in the presence of:
- ----------------------------------------- ------------------------------------
Signature of witness Signature of Bijan Khezri
- -----------------------------------------
Name of witness (print)
Signing page 1
SIGNED by SECURENET LIMITED by:
- ----------------------------------------- ------------------------------------
Signature of Director Signature of Director/Secretary
- ----------------------------------------- ------------------------------------
Name of Director (print) Name of Director/Secretary (print)
Signing page 2
ATTACHMENT A
ADJUSTMENT STATEMENT
Adjustment Schedule
at 31 March 2002
AU 01 AU 02 Total
-------- ------- --------
Employee Loans and Advances 2,600 2,600
Work in Progress 198,900 198,900
Seller Prepayments 8,290 3359 11,649
-------- ------- --------
Increase in Purchase Price 209,790 3,359 213,149
-------- ------- --------
Accrued Salaries 4,751 4,751
Accrued Contactor Fees 6,030 6,030
Accrued Light and Power 20,200 1000 21,200
Accrued phone 29,550 29,550
Accrued Death and Disability 3,058 561 3,619
Unlicensed Software Cost 238,270 238,270
Other 0 964 964
Employee Entitlements 186,839 186,839
Deferred Revenue 401,925 36755 438,680
-------- ------- --------
Decrease in Purchase Price 890,623 39,280 929,903
-------- ------- --------
Net Change in Purchase Price -680,833 -35,921 -716,754
Attachment B, page 1
ATTACHMENT B
DISTRIBUTION AGREEMENT
Attachment B, page 1
ATTACHMENT C
TRUSTED WORLD PARTNER AGREEMENT
Attachment C, page 1
ATTACHMENT D
DICTIONARY
PART 1 - DEFINITIONS
In this Agreement:
Accounting Standards means:
(a) subject to paragraph (b) below, accounting standards approved under UK
GAAP;
(b) solely in relation to revenue recognition, where the policy to be
implemented is to be consistent with US GAAP; and
(b) generally accepted and consistently applied principles and practices
adopted in the preparation of the latest balance sheet and financial
accounts of the Sellers, except those inconsistent with the standards or
requirements referred to in paragraph (a).
Adjustment Amount is defined in clause 5.1.
Adjustment Date means the date 7 days from agreement between the Sellers and the
Buyer or determination by an Independent Expert as to the Adjustment Amount,
whichever first occurs, on which date the Adjustment Amount is paid.
Adjustment Period means the period of 28 days after the Completion Date.
Adjustment Statement means the adjustment statement referred to in clause 5.1
and set out in Attachment A.
Agreement means this Business Purchase Agreement, as executed by the parties,
including all the Schedules and Attachments to the Agreement.
Artarmon Property means the property leased under the Artarmon Property Lease.
Artarmon Property Lease means the lease of the real property under which CAPL is
the lessee with Folio Identifier 9/11/4088.
Attachment D, page 1
Asset Leases means the leases, hire purchase agreements, conditional purchase
agreements and other hiring arrangements for assets, equipment and computers
used in the Business:
(a) to which a Seller is a party as at the Completion Date;
(b) which are set out in Parts 1 and 2 of Schedule 3; and
(c) not including those which relate to Excluded Assets.
Authorisation includes:
(a) a consent, registration, filing, agreement, notice of non-objection,
notarisation, certificate, licence, approval, permit, authority or
exemption from, by or with a Government Agency; and
(b) in relation to anything which a Government Agency may prohibit or restrict
within a specific period, the expiry of that period without intervention or
action.
Baltimore Ireland means Baltimore Technologies Limited (a company incorproated
under the laws of the Republic of Ireland) of 39-41 Parkgate Street, Dublin 8,
Rep. of Ireland.
Baltimore Professional Services Agreement means the agreement of said name to be
entered into between the Buyer and BT plc on or before Completion.
Benefiting Party means the party entitled to the benefit of a Condition, as set
out next to that Condition in Schedule 7.
Business means the collective business in Australia of the Sellers in providing
certification services and designing and supporting security products which have
the purpose of protecting and enabling computer based information systems, as at
the date of this Agreement.
Business Assets means all of the business assets and contracts used in or
forming part of the Business at the Completion Date, consisting of the:
(a) Computer System;
(b) all rights in the Asset Leases (Schedule 3);
Attachment D, page 2
(c) Business Records; and copies of the Excluded Records provided pursuant to
clause 6.3;
(d) Customer Contracts (Schedule 4);
(e) Other Contracts (Schedule 5);
(f) Marketing Material;
(g) Plant, Fixtures and Fittings;
(h) Local Intellectual Property;
(i) the domain name www.certificates-australia.com.au;
(j) Work in Progress;
(k) Seller Prepayments;
(l) goodwill; and
(m) 2 Unicert licences with Level 3 Support at an annual fee not to exceed
AU$5,000, and where one of those licences includes 2,500 certificates per
annum,
but excludes the Excluded Contracts and Excluded Assets.
Business Contracts means the Asset Leases, Customer Contracts and Other
Contracts, excluding the Excluded Contracts.
Business Day means a day on which banks are open for business in Sydney
excluding a Saturday, Sunday or public holiday.
Business Records means in relation to the Business:
(a) copies of customer and supplier lists;
(b) evidence of Work in Progress;
(c) records of Business Contracts;
Attachment D, page 3
(d) records of Transferring Persons and of the entitlements referred to in
clause 9 (Employment and Superannuation);
(e) computer programs, data bases, and software in relation to the Plant,
Fixtures and Fittings and Asset Leases;
(f) copies of ledgers, journals and books of account;
(g) information on the manufacture, production and marketing of any goods made
or sold in the Business including Marketing Material; and
(h) all other documents and records about the Business Assets transferred under
this Agreement,
but excludes the Excluded Records.
Buyer Warranties means the representations and warranties set out in Part 2 of
Schedule 2.
Car Parking Licence means the licence agreement dated 21 May 2001 between
Citycap Pty Limited and BT Pty Ltd for the licence to BT Pty Ltd of 11 car
parking spaces at the Property.
Claim means, in relation to a person, any claim, action, proceeding, demand or
judgment (including without limitation damages) against that person, or any cost
or expense incurred by that person.
Completion means completion of the sale and purchase of the Business Assets
under clause 6 and completion of the Adjustment Statement under clause 5.
Completion Date means the date on which Completion occurs in accordance with
clause 6.1, which must be no later than the End Date.
Computer System means all computer hardware, software and networks owned or used
by the Business and owned by a Seller, including arrangements relating to the
provision of maintenance and support, security, disaster recovery, facilities
management, bureau and on-line services to the Business but excludes any
computer hardware, software and networks which are subject to or form part of
the Excluded Contracts and Excluded Assets or the Asset Leases.
Attachment D, page 4
Condition means a condition precedent set out in Schedule 7.
Contractors means the contractors engaged by the Sellers in respect of the
Business listed in Part 1 of Schedule 6 and any person who is engaged as a
contractor of the Business between the date of this Agreement and Completion.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Contracts means all the contracts, engagements or orders entered into
on or prior to the Completion Date by or on behalf of the Sellers with customers
for the sale or provision of services (including support, maintenance or
consulting services) in connection with the Business, where the contract,
engagement or order remains to be performed in whole or part by the Sellers
(whether or not an order for services is required to be made by the customer)
and where either:
(a) the contracts, engagements or orders are listed in Schedule 4; or
(b) the Buyer agrees to accept the assignment of such contract.
Deferred Revenue means revenue to the Sellers in respect of contractual
obligations to be discharged by the Buyer subsequent to Completion.
Disclosure Letter means the letter from the Sellers dated the date of the
Agreement and delivered to the Buyer before the signing of this Agreement and
which contains disclosures about the Seller Warranties.
Distribution Agreement means the agreement of the said name, to be entered into
by the Buyer and Baltimore Ireland on or about the date of this Agreement in the
form attached to this Agreement as Attachment C.
Employees means the employees of the Business listed in Part 1 of Schedule 6 and
any person who becomes an employee of the Business between the date of this
Agreement and Completion, but does not include Excluded Persons.
Employee Entitlement, in relation to an employee, means the full amount of any
remuneration and compensation accrued to the employee, including:
(a) the amounts accrued to the employee as set out in Schedule 6 as at 31 March
2002 and as updated at Completion as of the Completion Date;
(b) On-Costs;
Attachment D, page 5
(c) salary or wages; and
(d) sick leave, annual leave (adjusted in accordance with clause 8.2(e) as
applicable), leave loading and long service leave.
End Date means 30 June 2002 or such other date as agreed in writing between the
Buyer and the Sellers.
Excluded Contracts and Excluded Assets means the items set out in Part 2 of
Schedule 1.
Excluded Persons means the employees or contractors of the Business listed in
Part 2 of Schedule 6.
Excluded Records means those Business Records which:
(a) a Seller is required by law to retain; or
(b) are subject to legal professional privilege; or
(c) which relate to any part of the Business or Excluded Contracts and Excluded
Assets which are not being transferred under this Agreement
Government Agency means a government or governmental, semi-governmental,
administrative, fiscal or judicial body, department, commission, authority,
tribunal, agency or entity whether foreign, federal, state, territorial or
local.
GST means goods and services tax under the GST Law.
GST Law has the same meaning as in A New Tax System (Goods and Services Tax) Act
1999.
Guarantee means any performance or other guarantee, indemnity, letter of credit,
legally binding letter of comfort or suretyship including any other obligation
or irrevocable offer (whatever called and of whatever nature):
(a) to pay, purchase or perform;
(b) to provide funds for the payment or discharge of;
(c) to indemnify against the consequences of default in the payment or
performance of;
Attachment D, page 6
(d) to be responsible otherwise for,
an obligation or debt of another person.
HIC Agreement means the agreement for the provision of a software licence and
related services between the Health Insurance Commission and BT Pty Ltd dated 1
February 2000.
Independent Expert means the President for the time being of the Institute of
Chartered Accountants in Australia, NSW Division or his/her nominee.
Industry Fund means the Optimum Superannuation Industry Trust.
Insolvency Event means the occurrence of any one or more of the following events
in relation to any party to this Agreement:
(a) either the party being in liquidation or an order, petition, application,
proceeding, meeting or resolution being made, presented, brought, called or
passed for the purpose of winding up the party and not withdrawn;
(b) a controller (within the meaning of the Corporations Act) having possession
or control of any of the assets or undertaking of the party for the purpose
of enforcing a charge;
(c) a chargee or other person being entitled to be in, or having threatened to
take, possession or control of any of the assets or undertaking of the
party for the purpose of enforcing a charge;
(d) an administrator (within the meaning of the Corporations Act) having been
appointed or threatened to be appointed to the party; or
(e) the party having stopped payments to creditors generally, or being
insolvent (within the meaning of the Corporations Act) or unable to pay its
debts as and when they fall due.
Integration Committee means the committee that will be established by the
Sellers and the Buyer for the purpose of monitoring the operation of the Sellers
and the Business between the date of this Agreement and the Completion Date
pursuant to clause 4.4.
Intellectual Property means all intellectual property rights subsisting
throughout the world conferred under statute, common law or equity, including
but not limited to:
(a) patents, copyright, rights in circuit layouts, registered designs, trade
marks, rights in know-how and any right to have information kept
confidential; and
Attachment D, page 7
(b) any application or right to apply for registration of any of the rights
referred to in paragraph (a).
Inter-company Debt means any amounts owing by the Sellers to a Related Body
Corporate at the Completion Date or any amounts owing by a Related Body
Corporate to the Sellers as at the Completion Date.
Key Employees means Wendy Watson, Narelle Behn-Carey, Mark Bower, John Karabin
and Gabriel Haythornthwaite.
Liability or Liabilities means any or all liabilities, losses, damages,
outgoings, claims, costs and expenses of whatever description.
Local Intellectual Property means BT Pty Ltd's rights, title and interest in any
Intellectual Property in any data, manuals, worksheet, spreadsheet and other
related material, created or developed by the Professional Services Group of BT
Pty Ltd as at the Completion Date:
Marketing Material means promotional material, catalogues, display stands,
signs, film, and print media material and material of a similar nature used in
the Business.
Officer means, in relation to a body corporate, a director or secretary of that
body corporate.
On-Costs, in relation to an employee, means the costs of the employer in
addition to salary or wages that arise on account of the employment of the
employee, including superannuation and pension fund contributions, workers'
compensation insurance, medical insurance and fringe benefits and payroll tax,
but not including sick leave, annual leave, leave loading or long service leave.
Other Contracts means the contracts affecting the Business to which a Seller is
a party including certain:
(a) Software Licences;
(b) contracts with suppliers of a Seller; and
(c) contracts with independent contractors,
where either:
(d) the contract is listed in Schedule 5; or
(e) the Buyer agrees to accept the assignment of the contract,
Attachment D, page 8
but excluding the Asset Leases, the Excluded Contracts and Customer Contracts.
Plant, Fixtures and Fittings means the fixtures, fittings, plant, machinery,
equipment, furniture, utensils, templates, implements, chattels, equipment and
leasehold refurbishment improvements which are:
(a) owned by a Seller;
(b) situated at the Property or the Artarmon Property;
(c) not subject to a Security Interest;
(e) not the subject of an Asset Lease or Other Contract;
(f) not subject to or form part of the Excluded Contracts and Excluded Assets.
Property means the property leased under the Pyrmont Property Lease.
Purchase Price means the purchase price payable for the Business Assets.
Pyrmont Property Lease means the lease of the real property under which BT Pty
Ltd is the lessee with CT Volume/Folio numbers 101/853704 and 102/853704 and the
Car Parking Licence.
Receivables means the debts owed to the Sellers by a third party, and the trade
debts acquired in the ordinary course of the Business, as at the Completion Date
but exclude Inter-Company Debt.
Redundancy Payouts, in relation to an employee, means the entitlements payable
to the employee in the form of remuneration, compensation or benefits arising
out of the termination of the employee's employment with either BT Pty Ltd or
the Buyer, excluding any Employee Entitlements.
Related Agreements means the agreements set out in Condition 1.
Related Bodies Corporate has the meaning given to that term under the
Corporations Act.
SecureNet Professional Services Agreement means the agreement of said name to be
entered into between the Buyer and BT plc on or before Completion.
Security Interest means a right, interest, power or arrangement in relation to
an asset which provides security for the payment or satisfaction of a debt,
obligation or liability including without limitation under a bill of sale,
mortgage, charge, lien, pledge, trust, power, deposit, hypothecation or
arrangement for retention of title, and includes an agreement to grant or create
any of those things.
Seller Accruals means payments by the Buyer to the benefit of the Sellers in
respect of contractual obligations incurred by the Sellers prior to Completion
and pursuant to the terms of this Agreement to be discharged by the Buyer
subsequent to Completion.
Attachment D, page 9
Seller Group Guarantee means each Guarantee provided by, on behalf of or in
favour of BT Pty Ltd or CAPL or BT plc in relation to the continued performance
of a Business Contract, whether directly or indirectly via an intermediary such
as a bank, and which is listed in Schedule 8.
Seller Prepayments means prepayment by the Sellers to the benefit of the Buyer
in respect of contractual obligations to be discharged by the Buyer subsequent
to Completion.
Seller Warranties means the representations and warranties set out in Part 1 of
Schedule 2.
Software Licences means any licences, authorisations and permissions granted by
a third party, whether express or implied, to a Seller pertaining to the use by
the Seller of that third party's intellectual property, including those set out
in Schedule 5 but excluding software applications made available through or
resident on the Baltimore global intranet as at the date of this Agreement.
Tax means a tax, levy, charge, impost, fee, deduction, withholding or duty of
any nature, including, without limitation, stamp and transaction duty or any
goods and services tax (including GST), value added tax or consumption tax,
which is imposed or collected by a Government Agency, except where the context
requires otherwise. This includes, but is not limited to, any interest, fine,
penalty, charge, fee or other amount imposed in addition to those amounts.
Transferring Person means an Employee or Contractor who accepts an Offer.
Trusted World Partner Agreement means the agreement of said name to be entered
into between the Buyer and BT plc on or about the date of this Agreement
substantially in the form attached to this Agreement in Attachment D.
Unlicensed Software Cost means the cost of replacing the oftware referred to in
Schedule 9.
Warrantors means BT Pty Ltd, CAPL and BT plc.
Work in Progress means work in progress under Customer Contracts being
transferred in accordance with this Agreement.
PART 2 - INTERPRETATION
(a) In this Agreement unless the context otherwise requires:
(i) words importing the singular include the plural and vice versa;
(ii) words which are gender neutral or gender specific include each gender;
Attachment D, page 10
(iii) other parts of speech and grammatical forms of a word or phrase
defined in this Agreement have a corresponding meaning;
(iv) an expression importing a natural person includes a company,
partnership, joint venture, association, corporation or other body
corporate and a Government Agency;
(v) a reference to a thing (including, but not limited to, a
chose-in-action or other right) includes a part of that thing;
(vi) a reference to a clause, party, schedule or attachment is a
reference to a clause of this Agreement, and a party, schedule or
attachment to, this Agreement, and a reference to this Agreement
includes a schedule and attachment to this Agreement;
(vii) a reference to this Agreement includes this Dictionary;
(viii) a reference to a law includes a constitutional provision, treaty,
decree, convention, statute, regulation, ordinance, by-law
judgment, rule of common law or equity or a rule of an applicable
stock exchange and is a reference to that law as amended,
consolidated or replaced;
(ix) a reference to a document includes all amendments or supplements to
that document, or replacements or novations of it;
(x) a reference to a party to a document includes that party's
successors and permitted assigns;
(xi) if a party comprises two or more persons, a covenant, undertaking,
representation, warranty, indemnity or agreement made or given by
that party binds those persons jointly and severally;
(xii) a reference to an agreement, other than this Agreement, includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding, whether or not in writing; and
(xiii) all references to dollars, $, cost, value and price are to be in
Australian currency.
Attachment D, page 11
(b) Any words in this Agreement appearing after the words "include", "includes"
or "including", do not limit anything else that might be included.
(c) Where the day on or by which something must be done is not a Business Day,
that thing must be done on or by the following Business Day.
(d) Headings are for convenience only and do not affect the interpretation of
this Agreement.
(e) This Agreement may not be construed adversely to a party just because that
party prepared this Agreement.
(f) A term or expression starting with a capital letter:
(i) which is defined in this Dictionary, has the meaning given to it in
this Dictionary;
(ii) which is defined in the Corporations Act but is not defined in this
Dictionary, has the same meaning as in the Corporations Act; and
(iii) which is defined in the GST Law but is not defined in this
Dictionary, has the same meaning as in the GST Law.
Attachment D, page 12