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EXHIBIT 2.7B
[BAKER & MCKENZIE LETTERHEAD]
SHAREHOLDERS DEED
between
ASIA ONLINE - AUSTRALIA PTY LIMITED
(ACN 089 444 691)
and
ASIA ONLINE, LTD.
and
THE PARTIES LISTED IN SCHEDULE 1
and
INTERACT TECHNOLOGY GROUP PTY LTD
(ACN 077 153 792)
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[BAKER & MCKENZIE LETTERHEAD]
CONTENTS
CLAUSE
NUMBER HEADING PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 4
2. COMMENCEMENT OF OBLIGATIONS ON CLOSING 5
3. THE BUSINESS 5
4. MANAGEMENT OF THE COMPANY 5
4.1 Appointment of directors 5
4.2 Manner of appointment 6
4.3 Resignation on disposal 6
4.4 Liability for removal 6
4.5 Meetings of the Board 6
4.6 Shareholders Meetings 7
4.7 Chairman 7
5. MATTERS REQUIRING UNANIMOUS CONSENT 7
5.1 Unanimous consent 7
6. TRANSFER OF SHARES 8
6.1 No dealing in Shares 8
6.2 Transfer to Related Body Corporate 8
6.3 Transfer Notice procedure 8
6.4 Allocation of Relevant Shares 9
6.5 Shares not purchased by Members 10
6.6 Registration of Transfers 10
6.7 Obligations of Transferor to Transfer 10
6.8 No Limitation 10
7. WARRANTIES 11
7.1 Warranties by the Members 11
7.2 Warranty by the "B" Shareholders 11
7.3 Cubic Pty Ltd's representations and warranties 11
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8. OPTIONS 12
8.1 Put and Call Options 12
8.2 Terms of exercise of put option 12
8.3 Terms of exercise of call option 13
8.4 Completion of Exercise of Option 13
8.5 US Securities Laws Representations and Undertakings 14
8.6 Restricted Securities 15
8.7 Legends 15
8.8 Lock Up 16
8.9 Definitions 16
8.10 Directorship 17
9. PROMISE TO PAY 17
9.1 Asia Online to Pay 17
9.2 Limit on Payments 17
10. MUTUAL CO-OPERATION 17
10.1 Primary obligation 17
10.2 Obligations of members 17
11. NO PARTNERSHIP AND CONFLICT 18
11.1 No partnership 18
11.2 Conflict with Constitution 18
12. NOTICES 18
13. GENERAL PROVISIONS 18
13.1 Invalid or unenforceable 18
13.2 Waiver and exercise of rights 18
13.3 Amendment 19
13.4 Counterparts 19
13.5 Further assurances 19
13.6 Costs 19
13.7 Assignment 19
13.8 Non-merger 19
13.9 Entire Deed 19
13.10 Rights cumulative 19
13.11 Consents and Approvals 19
13.12 Jurisdiction and Governing Law 19
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[BAKER & MCKENZIE LETTERHEAD]
SCHEDULE 1
Part 1 - "B" Shareholders
SCHEDULE 2
Deed of Adherence *
SCHEDULE 3
Exercise Price
SCHEDULE 4
Business Plan *
* Schedule omitted - will be provided supplementally to the Commission upon
request.
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SHAREHOLDERS DEED
THIS DEED is made on 1 October 1999
BETWEEN
Asia Online - Australia Pty Limited ACN 089 444 691 of Level 26, 50 Bridge
Street, Sydney, New South Wales ("Asia Online-Australia");
Asia Online, Ltd. a company incorporated in Delaware, of 23rd Floor, Citicorp
Centre, 18 Whitfield Road, Causeway Bay, Hong Kong ("Asia Online");
The Parties Listed in Part 1 of Schedule 1 (the ""B" Shareholders");
AND
Interact Technology Group Pty Ltd (ACN 077 153 792) of Level 9, Colonial
Building, 161 London Circuit, Canberra ACT ("the Company").
RECITALS
A. By a Share Purchase and Subscription Agreement dated on or about the
date of this Deed Asia Online-Australia has agreed to purchase and
subscribe for a total 60% shareholding in the Company.
B. The Members have entered into this Deed to set out the terms and
conditions on which the business of the Company will be managed and
operated and how each of their rights as members of the Company will be
governed.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed, all terms defined in the Subscription Agreement shall have the
same meaning herein unless otherwise specified. Unless the context otherwise
requires, in this Deed:
"A" DIRECTOR" means a Director appointed from time to time by Asia
Online-Australia under clause 4.1;
"ASIA ONLINE VALUE REDUCING TRANSACTION" means any transaction with respect to
the disposal of the business and assets of Asia Online which is carried out in
bad faith and on
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non-arm's length terms by the parties to the transaction and which has the
effect of substantially reducing the net assets of Asia Online immediately
following the transaction;
""B" DIRECTOR" means a Director appointed from time to time by the "B"
Shareholders under clause 4.1
""B" SHAREHOLDER" means a Member who holds "B" class shares in the Company;
"BENEFICIARY" means any beneficiary or beneficiaries of the Trust;
"BOARD" means the Company's board of directors from time to time;
"BUSINESS" means those activities carried on by the Company from time to time;
"BUSINESS PLAN" means the business plan as approved by the Board from time to
time (the first such plan being attached as Schedule 4);
"CHAIRMAN" means the chairman of the Board from time to time;
"CONSTITUTION" means the constitution of the Company;
"CONTROL" has the same meaning as in s243E of the Corporations Law;
"DEED OF ADHERENCE" means a deed substantially in the form set out in Schedule 2
or any other form approved in advance by all of the Members under which a
transferee or allottee of Shares agrees to be bound by all the terms of this
Deed as if it had been one of the Members;
"DIRECTOR" means any director from time to time of the Company (or a duly
appointed alternate);
"EXERCISE PERIOD" means a period of 90 days from the date of notification by
Asia Online-Australia of the occurrence of a Trigger Event;
"EXERCISE PRICE" means the issue of that number of Asia Online Class C
Non-Voting Common Stock set out opposite each "B" Shareholder's name in Schedule
3 or, in the event of an Asia Online Value Reducing Transaction occurring prior
to the delivery of an Option Notice, if the "B" Shareholders so unanimously
elect an amount of A$2,083,008 paid to the "B" Shareholders in the same
proportions;
"MEMBER" means a registered holder from time to time of one or more Shares;
"OFFERING MEMBER" means a Member who has served a Purchase Notice pursuant to
clause 6.3(d);
"OPTION NOTICE" means written notice served by Asia Online-Australia or the "B"
Shareholders notifying the other of its wish to exercise the relevant "put" and
"call" options under clause 8;
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"PROPORTIONATE SHARE" in relation to a Member means the proportion that the
number of Shares from time to time held or beneficially owned by that Member
bears to the total number of Shares on issue from time to time;
"PROSPECTIVE PURCHASER" means a third party who has made a bona fide offer to
purchase some or all of the Shares of a Member under clause 6.3(a);
"PURCHASE NOTICE" means a written notice of acceptance served under clause
6.3(d);
"RELATED BODY CORPORATE" has the same meaning as in section 50 of the
Corporations Law;
"RELEVANT SHARES" means the number and class of Shares and any interest in them
which a Transferor may wish to transfer or dispose of;
"SECURITY INTEREST" means an interest in or over an asset which provides
security for, or protects against default by, a person for the payment or
satisfaction of a debt, obligation or liability including a mortgage, charge,
bill of sale, pledge, deposit, lien, encumbrance, hypothecation, or arrangement
for the retention of title;
"SHARE" means a share (of whatever class or denomination) in the capital of the
Company from time to time;
"SUBSCRIPTION AGREEMENT" means the Share Purchase and Subscription Agreement
dated on or about the date of this Deed between Asia Online-Australia, the "B"
Shareholders and the Company;
"THIRD PARTY INTEREST" means any Security Interest, lease, option, voting
arrangement, easement, covenant, notation, restriction, interest under any
agreement, interest under any trust, or other right, equity, entitlement or
other interest of any nature held by a third party;
"TRANSFER NOTICE" means a notice in writing under clause 6.3 that a Transferor
desires to sell, transfer or dispose of any Share or Shares;
"TRANSFEROR" means a Member proposing to sell, transfer or dispose of any Share
or Shares under clause 6.3;
"TRIGGER EVENT" means the earlier to occur of:
(a) the date which is 90 days before the likely day on which Asia Online
registers its initial public offering document with the United States
Securities and Exchange Commission;
(b) a change of Control of Asia Online or any sale of substantially all of
the assets and undertaking of Asia Online (other than by way of any
group reorganisation or reconstruction undertaken by Asia
Online-Australia); or
(c) any group reorganisation or reconstruction of the Company or any
material part of its assets;
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"TRUST" means the Hayden Family Trust;
"TRUST DEED" means the trust deed dated 21 May 1986 made by Eric Gordon Dickson
as settlor and John Patrick Hayden and Shena Hayden as initial trustee (as
varied by a deed dated 30 June 1986) constituting the Trust;
"TRUST FUND" means the property which is at any time subject to the Trust; and
"WARRANTIES" means the representations, warranties and covenants made by the
Members under clause 7 and "WARRANTY" means any one of them.
1.2 INTERPRETATION
In this Deed, unless the context otherwise requires:
(a) a reference:
(i) to the singular includes the plural and vice versa;
(ii) to a gender includes all genders;
(iii) to a document (including this Deed) is a reference to that
document (including any Schedules and Annexures,) as amended,
consolidated, supplemented, novated or replaced;
(iv) to an agreement includes any deed, agreement or legally
enforceable arrangement or understanding whether written or
not;
(v) to parties means the parties to this Deed and to a party means
a party to this Deed;
(vi) to a notice means all notices, approvals, demands, requests,
nominations or other communications given by one party to
another under or in connection with this Deed;
(vii) to a person (including any party) includes:
(A) a reference to an individual, company, body
corporate, association, partnership, firm, joint
venture, trust or Government Agency as the case
requires; and
(B) the person's successors, permitted assigns, executors
and administrators;
(viii) to a law:
(A) includes a reference to any constitutional provision,
subordinate legislation, treaty, decree, convention,
statute, regulation, rule, ordinance, proclamation,
by-law, judgment, rule of common law or equity or
rule of any applicable stock exchange;
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(B) is a reference to that law as amended, consolidated,
supplemented or replaced; and
(C) is a reference to any regulation, rule, ordinance,
proclamation, by-law or judgment made under that law;
(ix) to proceedings includes litigation, arbitration, and
investigation;
(x) to a judgement includes an order, injunction, decree,
determination or award of any court or tribunal; and
(xi) to time is a reference to Sydney time;
(b) headings are for convenience only and are ignored in interpreting this
Deed;
(c) if a period of time is specified and dates from, after or before, a
given day or the day of an act or event, it is to be calculated
exclusive of that day;
(d) if a payment or other act must (but for this clause) be made or done on
a day which is not a Business day, then it must be made or done on the
next Business day;
(e) the words "including" or "includes" mean "including but not limited to"
or "including without limitation;
(f) this Deed must not be construed adversely to a party solely because
that party was responsible for preparing it; and
(g) where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
2. COMMENCEMENT OF OBLIGATIONS ON CLOSING
Unless expressly stated otherwise in this Deed, the rights and obligations
created by this Deed commence, and are enforceable from the Closing Date.
3. THE BUSINESS
The primary object of the Company is to conduct the Business in accordance with
the Business Plan as amended from time to time.
4. MANAGEMENT OF THE COMPANY
4.1 APPOINTMENT OF DIRECTORS
(a) For so long as it holds Shares, Asia Online-Australia is entitled to
appoint, substitute and remove a total of three "A" Directors.
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(b) For so long as they hold 40% of the Shares, the "B" Shareholders are
collectively entitled to appoint, substitute and remove a total of two
"B" Directors.
4.2 MANNER OF APPOINTMENT
Each appointment, substitution and removal of a Director will be carried out by:
(a) the relevant Member(s) depositing a written notice at the Company's
registered office; and
(b) sending a copy of the notice to the other Members.
4.3 RESIGNATION ON DISPOSAL
If Asia Online-Australia disposes of all its Shares or the "B" Shareholders
dispose of all of their Shares, that Member or those Members must cause the
resignation of the relevant Director(s) appointed by it or them.
4.4 LIABILITY FOR REMOVAL
Any Member substituting or removing a Director using its rights under this
clause 4 is responsible for and holds harmless the other Members and the Company
from and against:
(a) any claim for unfair or wrongful dismissal arising out of the
substitution or removal; and
(b) any reasonable costs and expenses incurred in defending any
proceedings, including, but without limiting this, legal costs on a
solicitor and own client basis.
4.5 MEETINGS OF THE BOARD
(a) Subject to (b) below, at each meeting of the Board and for each
resolution proposed to the Board the Directors present at the meeting
will have one vote each.
(b) If less than the full number of "A" Directors or "B" Directors are
appointed to the Board or attend or are able to vote at any Board
meeting, the "A" Director(s) or "B" Director that attend or are so
appointed are entitled to exercise between them the number of votes
that equal the maximum number of "A" Directors entitled to be appointed
under clause 4.1(a) (in the case of any votes exercised by the Asia
Online-Australia Directors) and the maximum number of "B" Directors
entitled to be appointed under clause 4.1(b) (in the case of any votes
exercised by the "B" Directors).
(c) Subject to clause 5.1 all resolutions of the Board must be passed by
simple majority.
(d) The quorum for a Board meeting is at least one "A" Director and one "B"
Director.
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4.6 SHAREHOLDERS MEETINGS
(a) The quorum for a general meeting is at least two Members, one of which
must be Asia Online-Australia.
(b) At each meeting of the Members and for each resolution proposed to the
Members, each Member has one vote for each Share it holds.
4.7 CHAIRMAN
(a) Asia Online-Australia has the right to nominate one of the "A"
Directors to be Chairman. If the Chairman ceases to be a Director, Asia
Online-Australia will be entitled to nominate a replacement Chairman.
(b) If any vote taken at a Board meeting is tied, the Chairman is entitled
to a second or casting vote.
5. MATTERS REQUIRING UNANIMOUS CONSENT
5.1 UNANIMOUS CONSENT
The Members agree that despite anything to the contrary in this Deed, or in the
Constitution, the unanimous consent of the Members is required to:
(a) create or, where appropriate, issue any Security Interest over the
whole or any part of the undertaking, business, property or assets
(tangible or intangible) of the Company;
(b) sell, transfer, lease, assign, dispose of or part with control of any
interest in all or any material part of the undertaking, business,
property or assets (tangible or intangible) of the Company (whether by
a single transaction or a series of transactions) or contract to do so
(other than as a result of any group reorganisation or reconstruction
of the Company or any material part of its assets);
(c) acquire or contract to acquire any business, property or assets
(tangible or intangible) or any interest therein which represents more
than 20% of the Company's assets at the relevant time (other than as a
result of any group reorganisation or reconstruction of the Company or
any material part of its assets);
(d) enter into any joint venture, partnership or profit sharing agreement
with any third party; and
(e) convert any of its shares into a larger or smaller amounts;
(f) allot further shares.
In clauses 5.1(b) and 5.1(c) "material part" means any part or parts of the
undertaking, business, property or assets having a value of at least 20% of the
Company's assets at the relevant time.
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6. TRANSFER OF SHARES
6.1 NO DEALING IN SHARES
(a) A Member may not sell, transfer or dispose of any Shares or any
interest in any Shares or charge or otherwise encumber or create any
Third Party Interest in any Shares without the prior consent of the
other Members, except as provided in this Deed.
(b) If any Member purports or attempts to transfer, dispose of or create a
Third Party Interest over their Shares or any interest in their Shares,
except as provided in this Deed, that Member will be deemed to have
served a Transfer Notice in accordance with clause 6.3 for those
Shares.
6.2 TRANSFER TO RELATED BODY CORPORATE
A transfer of Shares to a transferee who is and remains a Related Body Corporate
of the transferor Member is permitted if:
(a) the transferor Member has given prior written notice to the other
Members; and
(b) the transferee executes a Deed of Adherence at the same time as the
transfer.
6.3 TRANSFER NOTICE PROCEDURE
(a) A Transferor wishing to sell, assign or dispose of an interest in its
Shares (other than to a Related Body Corporate under clause 6.2) must
deliver a Transfer Notice to the other Members specifying:
(i) the Relevant Shares (which must be all of the Shares then held
by the Transferor);
(ii) the identity of the Prospective Purchaser (if any);
(iii) the price at which the Transferor wishes to sell the Relevant
Shares.
(iv) any other material terms or circumstances known to the
Transferor which affect or may affect the offer.
(b) A Transfer Notice once given or deemed to have been given is not
revocable except with the consent of all of the Directors in writing;
(c) Receipt of the Transfer Notice constitutes an offer by the Transferor
to the other Members to sell the Relevant Shares to the other Members
on terms contained in the Transfer Notice.
(d) Each Member (other than the Transferor) may exercise its option to buy
the Relevant Shares by serving a Purchase Notice on the Transferor of
the number of
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Relevant Shares it wants to buy within 15 Business days of the date of
service of the Transfer Notice.
(e) If a Member serves a Purchase Notice under clause 6.3(d):
(i) the Transferor must sell to that Member the number of Relevant
Shares allocated to that Member under clause 6.4; and
(ii) the relevant Member must buy them on the terms set out in the
Transfer Notice.
6.4 ALLOCATION OF RELEVANT SHARES
(a) The Transferor must sell to each Offering Member the number of Relevant
Shares that Offering Member has offered to buy if the Transferor
receives offers for equal to or less than the number of Relevant
Shares.
(b) The Relevant Shares must be allocated to the Offering Members in the
proportion that their Proportionate Shares bear to each other if there
are not enough Relevant Shares to satisfy the offers of all Offering
Members.
(c) An Offering Member is not bound to buy or entitled to buy more than the
number of Relevant Shares which that Offering Member has offered to
buy, even if paragraph (b) would result in a higher number of Relevant
Shares being allocated to that Offering Member.
(d) Any Relevant Shares which remain unallocated because of paragraph (c)
must be re-allocated amongst those remaining Offering Members who
offered to buy more than the number of Relevant Shares already
allocated to them under paragraph (b). This process may be repeated if
necessary until all of the Relevant Shares have been allocated.
(e) The Company may round a fraction up or down as it thinks fit, if this
clause would otherwise result in a fraction of a Share.
(f) The Company must notify the Transferor and each Offering Member of the
number of Relevant Shares to which each Offering Member is entitled.
(g) Within 30 Business days of the date of service of the Transfer Notice
and subject to the Offering Member paying the Transferor the required
sale consideration, the Transferor must give each Offering Member a
transfer of the relevant number of Relevant Shares signed by the
Transferor.
(h) The Transferor must give the Company the share certificates for the
Relevant Shares at the same time as it gives the Offering Member a
transfer under paragraph (g).
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6.5 SHARES NOT PURCHASED BY MEMBERS
(a) If offers are not received from the Members to purchase all the
Relevant Shares, or a Member defaults in paying for the Relevant Shares
in accordance with clause 6.4(g), then the Transferor may sell the
Relevant Shares to the Prospective Purchaser within 60 Business days
but not before 40 Business days after the date of service of the
Transfer Notice.
(b) The Transferor must not sell the Relevant Shares for a lower price than
that specified in the Transfer Notice or otherwise on more beneficial
terms.
6.6 REGISTRATION OF TRANSFERS
(a) The Members will ensure that the Directors register any transfer of
Shares which complies with clause 6 or clause 8.
(b) The Directors must refuse to register the transfer of any Share, unless
the provisions of this clause 6 or clause 8 have been duly complied
with and the proposed transferee has executed a Deed of Adherence.
6.7 OBLIGATIONS OF TRANSFEROR TO TRANSFER
(a) Upon the Transferor becoming bound to transfer any Shares under this
Deed the Transferor must deliver to the transferee executed transfers
for those Shares in favour of the transferee together with the relevant
share certificate(s) against payment by the transferee of the price due
for them.
(b) If the Transferor defaults in transferring the Shares, any Director is
irrevocably and unconditionally appointed as the attorney of the
Transferor to complete and execute the necessary instrument of transfer
of those Shares together with a standard form indemnity for
non-production of share certificates for those Shares and may deliver
them on behalf of the Transferor and the Company will receive the
purchase money for the Shares on trust for the Transferor and will
(subject to the instrument being duly stamped) cause the transferee to
be registered as the holder of the Shares.
(c) The Company is not bound to earn or pay interest on any money held and
will not pay any money to the Transferor until the Transferor has
delivered the Transferor's share certificates (or an appropriate
indemnity for any lost certificates) to the Company.
6.8 NO LIMITATION
Nothing in this clause limits or restricts the rights of the "B" Shareholders or
Asia Online-Australia under clause 8.
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7. WARRANTIES
7.1 WARRANTIES BY THE MEMBERS
Each Member warrants to the other Members that:
(a) the execution of this Deed by it has been properly authorised by all
necessary corporate or other action by it;
(b) it has full corporate authority or statutory power, as the case may be,
and lawful authority, to execute and deliver this Deed and to perform
or cause to be performed its obligations under this Deed;
(c) this Deed constitutes a full and binding legal obligation upon it;
(d) this Deed does not conflict with or result in the breach of or default
under the provision of its constitution or other constituent documents
or any material term or provision of any agreement or deed or any writ
order or injunction, rule, judgment, law, or regulation to which it is
a party or is subject or by which it is bound;
7.2 WARRANTY BY THE "B" SHAREHOLDERS
Each of the "B" Shareholders, except for Cubic Pty Ltd, warrants that on
exercise and completion of the put or call options in clause 8 it will be the
legal and beneficial owner of the Shares to be transferred to Asia
Online-Australia free of all Third Party Interests and, in the case of Cubic Pty
Ltd, it will be the legal owner of the Shares free of all Third Party Interests
(excluding the beneficial interests of the Beneficiaries under the Trust) and
will transfer its entire title in the Shares free of any Third Party Interests
(including any beneficial interests of the Beneficiaries under the Trust).
7.3 CUBIC PTY LTD'S REPRESENTATIONS AND WARRANTIES
Cubic Pty Ltd represents and warrants to each other party that:
(a) it is the only trustee of the Trust;
(b) it has the power under the Trust Deed to:
(i) execute and deliver this Deed; and
(ii) perform its obligations under this Deed;
(c) all action required by the Trust Deed to authorise:
(i) it's execution and delivery of this Deed to which it is a
party; and
(ii) the performance of its obligations under this Deed,
has been taken;
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(d) the execution by it of this Deed to which it is a party and the
performance by it of its obligations or the exercise of its rights
under this Deed does not contravene the Trust Deed;
(e) no action is currently taking place or pending to remove it as trustee
of the Trust or appoint a new or additional trustee of the Trust;
(f) it has entered into this Deed in its capacity as trustee of the Trust
and for the benefit of the Beneficiary;
(g) it has a right to be fully indemnified out of the Trust Fund in respect
of the obligations incurred by it under the Transaction Documents and
it has not released, disposed of or restricted its equitable lien over
the Trust Fund which secures that indemnity;
(h) it is not and has never been in breach of the Trust Deed;
(i) it and its directors, officers, employees and agents have complied with
their obligations in connection with the Trust;
(j) the Trust has not been terminated and no action is pending to terminate
the Trust; and
(k) the Beneficiary is not presently entitled to any of the assets of the
Trust.
8. OPTIONS
8.1 PUT AND CALL OPTIONS
If a Trigger Event occurs:
(a) the "B" Shareholders may require Asia Online-Australia to purchase all,
but not less than all, of their Shares at any time during the Exercise
Period on terms contained in clause 8.2; and
(b) other than where there is any group reorganisation or reconstruction of
the Company or any material part of its assets, Asia Online-Australia
may purchase all of the "B" Shareholders' Shares at any time during the
Exercise Period on terms contained in clause 8.3.
Asia Online-Australia will notify the "B" Shareholders within two business days
of a Trigger Event occurring.
8.2 TERMS OF EXERCISE OF PUT OPTION
(a) Upon expiry of the Exercise Period the put option in favour of the "B"
Shareholders (or their permitted assigns) lapses if not previously
exercised;
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(b) The put option provided in clause 8.1(a) in favour of the "B"
Shareholders (or their permitted assigns) must be exercised by the "B"
Shareholders (or their permitted assigns) serving on Asia
Online-Australia an Option Notice.
(c) The Option Notice must require the purchase of all of the Shares then
held by the "B" Shareholders (or their permitted assigns).
(d) Upon service of an Option Notice, Asia Online-Australia becomes bound
to buy the Shares specified in the Option Notice at the Exercise Price
within 5 days, subject to any consent or approval (the "Approval")
required from the Treasurer of the Commonwealth of Australia under the
Foreign Acquisitions and Takeovers Act 1975. Asia Online will offer to
the "B" Shareholders (or their permitted assigns) that number of Asia
Online Class C Non-Voting Common Shares set out opposite each "B"
Shareholder's (or their permitted assigns) name in Schedule 3, subject
to receipt of the Approval.
8.3 TERMS OF EXERCISE OF CALL OPTION
(a) Upon expiry of the Exercise Period the call option in favour of Asia
Online-Australia lapses if not previously exercised;
(b) The call option provided in clause 8.1(b) in favour of Asia
Online-Australia must be exercised by Asia Online-Australia serving on
the "B" Shareholders (or their permitted assigns) an Option Notice.
(c) The Option Notice will specify that it is in respect of all Shares held
by the "B" Shareholders (or their permitted assigns).
(d) Upon service of an Option Notice, the "B" Shareholders (or their
permitted assigns) become bound to sell their entire shareholding in
the Company specified in the Option Notice at the Exercise Price within
5 days subject to any consent or approval (the "Approval") required
from the Treasurer of the Commonwealth of Australia under the Foreign
Acquisitions and Takeovers Act 1975. Asia Online will offer to the "B"
Shareholders (or their permitted assigns) that number of Asia Online
Class C Non-Voting Common Shares set out opposite each "B"
Shareholder's (or their permitted assigns) name in Schedule 3, subject
to receipt of the Approval.
8.4 COMPLETION OF EXERCISE OF OPTION
(a) If the exercise of the put and call option becomes binding pursuant to
clause 8.2(d) or 8.3(d), then within 5 days of service of the relevant
Option Notice and subject to any consent required from the Treasurer of
the Commonwealth of Australia under the Foreign Acquisitions and
Takeovers Act 1975:
(b) the "B" Shareholders must deliver to Asia Online-Australia:
(i) transfers of all their Shares duly executed by the registered
holders in favour of Asia Online-Australia together with the
relevant share certificates for those Shares; and
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(ii) executed resignations of the "B" Shareholders' Directors;
(c) Asia Online must deliver to each of the "B" Shareholders (or their
permitted assigns) that number of Asia Online Class C Non-Voting Common
Shares set out opposite each "B" Shareholder's (or their permitted
assigns) name in Schedule 3 or, in the event of an Asia Online Value
Reducing Transaction occurring before the delivery of an Option Notice,
the "B" Shareholders (or their permitted assigns) may, in lieu of
receiving such shares, unanimously elect by notice in writing to Asia
Online to be paid A$2,030,008 by Asia Online in the same proportions.
Asia Online or Asia Online-Australia shall give notice to the "B"
Shareholders (or their permitted assigns) when an Asia Online Value
Reducing Transaction occurs.
8.5 US SECURITIES LAWS REPRESENTATIONS AND UNDERTAKINGS
Each Regulation S Vendor represents, warrants and undertakes to each other party
as follows:
(a) This Deed is entered into by each other party in reliance upon
Regulation S Vendor's representations, warranties and undertakings in
this clause.
(b) The Asia Online Stock to be acquired under this Deed by each Regulation
S Vendor will be acquired for investment for such Regulation S Vendor's
own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof in the United States or to a
United States resident (except in compliance with United States
securities laws), and that such Regulation S Vendor has no present
intention of selling, granting any participation in, or otherwise
distributing the same (except in compliance with United States
securities laws). By executing this Deed, each Regulation S Vendor
further represents, warrants and undertakes that such Regulation S
Vendor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations
to such person or to any third person in the United States or to a
United States resident, or any hedging transaction with any third
person in the United States or to a United States resident, with
respect to any of the Regulation S Securities.
(c) Each Regulation S Vendor understands and acknowledges that the Asia
Online Stock is not registered under the Securities Act on the ground
that the sale provided for in this Deed and the issuance of Securities
hereunder is exempt from registration under the Securities Act pursuant
to Regulation S thereof, and that Asia Online's reliance on such
exemption is predicated on the Regulation S Vendors' representations
set forth in this Deed.
(d) Each Regulation S Vendor has received all the information such
Regulation S Vendor considers necessary or appropriate for deciding
whether to purchase the Asia Online Stock.
(e) Each Regulation S Vendor has had an opportunity to ask questions and
receive answers from Asia Online regarding the terms and conditions of
the offering of the Asia Online Stock and the business, properties,
prospects, and financial condition of Asia Online and to obtain such
additional information (to the extent Asia Online possessed such
information or could acquire it without unreasonable effort or
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expense) necessary to verify the accuracy of any information furnished
to such Regulation S Vendor or to which such Regulation S Vendor had
access.
(f) Each Regulation S Vendor is either experienced in evaluating and
investing in securities of companies in the early stages of product
production or has access to appropriate advisers or representation that
can assist in evaluating companies in the early stages of product
production and acknowledges that such Regulation S Vendor is able to
fend for himself, herself or itself, can bear the economic risk of such
Regulation S Vendor's investment, and has such knowledge and experience
in financial and business matters that such Regulation S Vendor is
capable of evaluating the merits and risks of the investment in the
Asia Online Stock. If other than an individual, the Regulation S Vendor
also represents, warrants and undertakes that such Vendor has not been
organized for the purpose of acquiring the Asia Online Stock.
(g) Each Regulation S Vendor is a Qualified Regulation S Vendor. The term
"Qualified Regulation S Vendor" in this Deed means a person or entity
who is not a U.S. person, as such term is defined in Rule 902
promulgated under the Securities Act.
8.6 RESTRICTED SECURITIES
Each Regulation S Vendor understands that the Asia Online Stock may not be sold,
transferred, or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Asia Online Stock or an available exemption
from registration under the Securities Act, the Asia Online Stock must be held
indefinitely. In particular, each Regulation S Vendor is aware that the Asia
Online Stock may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that Rule are met. Among the
conditions for use of Rule 144 may be the availability of current information to
the public about Asia Online. Such information is not now available and Asia
Online has no current plans to make such information available.
8.7 LEGENDS
To the extent applicable, each certificate or other document evidencing any of
the Asia Online Stock shall be endorsed with the legends set forth below:
(a) The following legend under the Securities Act:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO
THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION
IS NOT REQUIRED."
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(b) As to Regulation S Securities, the following legend under the
Securities Act:
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED
PURSUANT TO REGULATION S OF THE SECURITIES ACT OF
1933, AS AMENDED (THE `ACT'), AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH. IN
ADDITION, NO HEDGING TRANSACTION MAY BE CONDUCTED
WITH RESPECT TO THESE SECURITIES UNLESS SUCH
TRANSACTIONS ARE IN COMPLIANCE WITH THE ACT."
8.8 LOCK UP
Each Regulation S Vendor hereby undertakes that such Regulation S Vendor shall
not sell, transfer, make any short sale of, grant any option for the purchase
of, or enter into any hedging or similar transaction with the same economic
effect as a sale, or otherwise reduce its risk of ownership or investment in,
any common stock (or other securities) of Asia Online held by such Regulation S
Vendor (other than those included in the registration) for a period (if any)
specified by the representative of the underwriters of common stock (or other
securities) of Asia Online with respect to each such transaction not to exceed
one hundred eighty (180) days following the effective date of a registration
statement of Asia Online filed under the Securities Act. Asia Online may impose
stop-transfer instructions with respect to the shares of common stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period. Each Regulation S Vendor agrees to execute and
deliver such other agreements as may be reasonably requested by Asia Online or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. In addition, if requested by Asia Online or the
representative of the underwriters of common stock (or other securities) of Asia
Online, each Vendor shall provide, within ten (10) days of such request, such
information as may be required by Asia Online or such representative in
connection with the completion of any public offering of Asia Online's
securities pursuant to a registration statement filed under the Securities Act.
8.9 DEFINITIONS
In this clause:
"ASIA ONLINE STOCK" means the Asia Online class C non-voting common stock to be
acquired under this Deed by each Regulation S Vendor;
"REGULATION S" means Regulation S promulgated by the SEC under the Securities
Act;
"REGULATION S SECURITIES" or the "SECURITIES" means collectively the Asia Online
Stock to be acquired under this Deed by each "B" Shareholder;
"REGULATION S VENDOR" means a "B" Shareholder;
"SEC" means the United States Securities and Exchange Commission;
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"SECURITIES ACT" means the United States Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder;
"UNITED STATES" means the United States of America, its territories and
possessions, any state of the United States and the District of Columbia; and
"US PERSON" has the meaning given to that expression in Rule 902 of Regulation
S.
8.10 DIRECTORSHIP
On execution of this Deed, Cubic Pty Ltd acknowledges that John Patrick Hayden
is a director of the Company and has a controlling interest in Cubic Pty Ltd.
9. PROMISE TO PAY
9.1 ASIA ONLINE TO PAY
In consideration of Asia Online-Australia's subscription for shares in the
Company (the "Subscription Shares") under the Subscription Agreement, Asia
Online shall make payments totalling $1,041,504 (the "Subscription Amount") to
the Company on a monthly basis in accordance with the expenditure requirements
detailed in the Business Plan included in Schedule 4 of this Deed. Subject to
the entire Subscription Amount being paid within 12 months of the date on which
the Subscription Shares are issued to Asia Online-Australia, the Members
acknowledge that the Board will in good faith review such expenditure
requirements on a regular basis to ensure that the Business has the appropriate
level of working capital to function efficiently and profitably and the level of
monthly payments may be altered to achieve this.
9.2 LIMIT ON PAYMENTS
Asia Online shall not be obliged to pay more than $1,041,504 to the Company
under clause 9.1.
10. MUTUAL CO-OPERATION
10.1 PRIMARY OBLIGATION
Each of the Members agrees that it will use all reasonable endeavours to promote
the business and profitability of the Company.
10.2 OBLIGATIONS OF MEMBERS
Each of the Members agrees with the other that this Deed is entered into between
them and will be performed by each of them in a spirit of good faith, mutual
cooperation, trust and confidence and that it will use all means reasonably
available to it (including its voting power
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whether direct or indirect, about the Company) to give effect to the objectives
of this Deed and to ensure that the Company complies with its obligations.
11. NO PARTNERSHIP AND CONFLICT
11.1 NO PARTNERSHIP
(a) The parties' rights and obligations are not joint, or joint and
several, or collective. Each party is only responsible for its own
obligations as set out in this Deed.
(b) The parties do not intend to create, and this Deed does not constitute,
a partnership, agency, trust or other arrangement.
(c) Unless otherwise expressly stated in this Deed, neither party has the
authority to act for, or incur any obligation on behalf of, the other
party.
11.2 CONFLICT WITH CONSTITUTION
To the extent that the Constitution conflicts with the provisions of this Deed,
the parties will exercise their respective voting rights as members of the
Company and take all such further steps as may be necessary to ensure that the
provisions of this Deed prevail.
12. NOTICES
The notice provisions in clause 11.4 of the Subscription Agreement apply mutatis
mutandis to this Deed.
13. GENERAL PROVISIONS
13.1 INVALID OR UNENFORCEABLE
If a provision of this Deed is invalid or unenforceable in a jurisdiction:
(a) it is read down or severed in that jurisdiction to the extent of the
invalidity or unenforceability; and
(b) it does not affect the validity or enforceability of:
(i) that provision in another jurisdiction; or
(ii) the remaining provisions.
13.2 WAIVER AND EXERCISE OF RIGHTS
The waiver provisions in clause 11.10 of the Subscription Agreement apply
mutatis mutandis to this Deed.
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13.3 AMENDMENT
This Deed may be amended only by a written document signed by all parties.
13.4 COUNTERPARTS
(a) This Deed may be signed in counterparts and all counterparts taken
together constitute one document.
(b) Once all counterparts have been executed, each counterpart is an
effective instrument.
13.5 FURTHER ASSURANCES
Each party must, at its own expense, whenever requested by another party,
promptly do or cause to be done everything reasonably necessary to give full
effect to this Deed and the transactions contemplated by this Deed. Asia
Online-Australia undertakes to the "B" Shareholders that it will not, without
the consent of the "B" Shareholders, seek to undertake any group reorganisation
or reconstruction of the Company or any material part of its assets (as defined
in clause 5.1) other than on bona fide commercial terms.
13.6 COSTS
Each party must pay its own costs in respect of this Deed and the documents and
transactions contemplated by this Deed.
13.7 ASSIGNMENT
A party must not assign, create an interest in or deal in any other way with any
of its rights under this Deed without the prior written consent of the other
party.
13.8 NON-MERGER
The representations and covenants by the parties in this Deed are continuing and
will not merge or be extinguished on Completion and will survive after
Completion.
13.9 ENTIRE DEED
This Deed comprises the entire agreement of the parties about the subject matter
of this Deed
13.10 RIGHTS CUMULATIVE
The rights, remedies and powers of the parties under this Deed are cumulative
and not exclusive of any rights, remedies or powers provided to the parties by
law.
13.11 CONSENTS AND APPROVALS
A party may give its consent conditionally or unconditionally or withhold its
approval or consent in its absolute discretion unless this Deed expressly
provides otherwise.
13.12 JURISDICTION AND GOVERNING LAW
The provisions of clause 11.7 of the Subscription Agreement apply mutatis
mutandis to this Deed.
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EXECUTED AS A DEED
SIGNED SEALED AND DELIVERED )
for and on behalf of )
ASIA ONLINE-AUSTRALIA PTY LIMITED )
by its duly authorised representatives: )
/s/ EDWARD P. ROBERTO /s/ KEVIN H. RANDOLPH
- --------------------------------------------------- ---------------------------------------------------
Signature of secretary/director Signature of director
Edward P. Roberto Kevin H. Randolph
- --------------------------------------------------- ---------------------------------------------------
Name of secretary/director (please print) Name of director (please print)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
ASIA ONLINE, LTD. )
by its duly authorised representative: )
/s/ KELLI SUZANNE LONGWORTH /s/ KEVIN H. RANDOLPH
- --------------------------------------------------- ---------------------------------------------------
Signature of witness Signature of authorised representative
Kelli Suzanne Longworth Kevin H. Randolph
- --------------------------------------------------- ---------------------------------------------------
Name of witness (please print) Name of authorised representative
(please print)
SIGNED SEALED AND DELIVERED by )
JOHN ALEXANDER HENDRY )
in the presence of: )
/s/ JONATHAN KELT /s/ JOHN ALEXANDER HENDRY
- --------------------------------------------------- ---------------------------------------------------
Signature of witness Signature of JOHN ALEXANDER HENDRY
Jonathan Kelt
- ---------------------------------------------------
Name of witness (please print)
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SIGNED SEALED AND DELIVERED by )
CRAIG ANDREW GIBSON )
in the presence of: )
/s/ JONATHAN KELT /s/ CRAIG ANDREW GIBSON
- --------------------------------------------------- ---------------------------------------------------
Signature of witness Signature of CRAIG ANDREW GIBSON
Jonathan Kelt
- ---------------------------------------------------
Name of witness (please print)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
CUBIC PTY LTD (IN ITS CAPACITY AS TRUSTEE OF THE )
TRUST)
)
by its duly authorised representatives: )
[CUBIC PTY LTD SEAL]
/s/ JOHN HAYDEN /s/ SHENA HAYDEN
- --------------------------------------------------- ---------------------------------------------------
Signature of secretary/director Signature of director
John Hayden Shena Hayden
- --------------------------------------------------- ---------------------------------------------------
Name of secretary/director (please print) Name of director (please print)
SIGNED SEALED AND DELIVERED )
for and on behalf of )
INTERACT TECHNOLOGY GROUP PTY LIMITED )
)
by its duly authorised representatives: )
[INTERACT TECHNOLOGY GROUP PTY LIMITED SEAL]
/s/ JOHN HAYDEN /s/ JOHN HENDRY
- --------------------------------------------------- ---------------------------------------------------
Signature of secretary/director Signature of director
John Hayden John Hendry
- --------------------------------------------------- ---------------------------------------------------
Name of secretary/director (please print) Name of director (please print)
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SCHEDULE 1
PART 1 - "B" SHAREHOLDERS
John Alexander Hendry
11 Ridley Street
Turner ACT 2612
Craig Andrew Gibson
21 Mulga Street
O'Connor ACT 2602
Cubic Pty Ltd
(in its capacity as trustee of the Hayden Family Trust)
46 Roebuck Street
Red Hill ACT 2603
27
SCHEDULE 3
EXERCISE PRICE
"B" SHAREHOLDER ASIA ONLINE CLASS C NON-VOTING COMMON STOCK
John Alexander Hendry 143,901
Craig Andrew Gibson 143,901
Cubic Pty Ltd (as trustee for the Hayden Family Trust) 143,901