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Shareholders Agreement (New South Wales)
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Shareholders Agreement (New South Wales)
THIS SHAREHOLDERS AGREEMENT is made on the day of 2001
BETWEEN:
AMERICAN BANKNOTE AUSTRALASIA HOLDINGS INC
a company incorporated in the United States of America, of
410 Park Avenue, New York, New York, the United States of
America ("ABAH")
- and -
CHASE SECURITIES AUSTRALIA LIMITED
(ABN 52 002 888 011), as Security Trustee for the
Participants, of 259 George Street, Sydney, in the State of
New South Wales ("CSAL")
- and -
ABN AUSTRALASIA LIMITED
(ABN 42 072 664 692) of 1144 Nepean Highway, Highett, in the
State of Victoria ("the Company")
WHEREAS:
A The Company (either directly or through its subsidiaries) conducts a secure
printing, card production and associated technology services business.
B On and from the Effective Date, the Shares in the Company will be held in
the manner set out in Schedule 1, subject to the issue of further Shares in
accordance with this Agreement.
C The Shareholders have agreed on certain matters relating to the manner in
which the business of the Company is to be conducted including the
administration and management of the Company and upon certain other matters
and wish to record that agreement in writing.
NOW THIS AGREEMENT PROVIDES AND IT IS HEREBY DECLARED AND AGREED BY AND BETWEEN
THE PARTIES AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement unless there is something in the subject or context
inconsistent therewith:
"ACCESSION DEED" means a deed substantially in the form of Annexure A
whereby the Proposed Assignee undertakes to observe and perform this
Agreement and be bound by the relevant terms of this Agreement in
relation to the Equity Package (or the portion of the Equity Package
which the Proposed Assignee is acquiring) and assuming all obligations
of the Assigning Party under this Agreement;
"ACCEPTANCE PERIOD" has the meaning contained in Clause 12.2.3;
"ALIENATE" means to sell, assign or transfer or otherwise dispose of
or deal with any legal or equitable interest in a Share;
"AMENDING AND RESTATEMENT DEED" means the deed so titled between the
Company as Borrower, CSAL as Agent for the Participants, the
Participants and others dated on or about the date of this Agreement;
"ASSIGNING PARTY" has the meaning contained in Clause 12.2.1;
"ASSIGNMENT OFFER" has the meaning contained in Clause 12.2.1;
"BOARD" means the board of directors of the Company;
"BUSINESS" means the secure printing, card production and associated
technology services business carried on by the Company under the
trading name "Leigh Mardon";
"BUSINESS DAY" means a day on which banks are open for normal banking
business in Melbourne and Sydney (excluding Saturday and Sunday);
"BUY BACK SHARES" means 256,046 Shares;
"CONFIDENTIAL INFORMATION" means all confidential, non public or
proprietary information in relation to the Business including the
Records, trade secrets, all financial, marketing and technical
information, ideas, concepts, know-how, technology, processes and
knowledge which is confidential to the Business;
"CONSTITUTION" means the constitution of the Company;
"CORPORATIONS LAW" means the Corporations Law of the State of New
South Wales, or, where applicable, any other Corporations Law of any
State or Territory of Australia;
"DEFAULTING SHAREHOLDER" has the meaning contained in Clause 12.7;
"DIRECTOR" means a director of the Company;
"EFFECTIVE DATE" has the meaning contained in the Amending and
Restatement Deed;
"EQUITY PACKAGE" has the meaning contained in Clause 12.2.1;
"FACILITY AGREEMENT" means the facility agreement between the Company
as Borrower, CSAL as Agent for each of the Participants and others as
amended and restated by the Amending and Restatement Deed;
"FINANCIAL YEAR" means the period from the Effective Date to 31
December 2001, and each subsequent 12 month period ending on 31
December in each subsequent year;
"FUNDING PERIOD" has the meaning contained in the Facility Agreement;
"INDEPENDENT VALUER" means an independent valuer, merchant bank or
investment bank which is in the business of conducting valuations of
companies or businesses similar in nature to the Company;
"INTEREST DIFFERENTIAL" means, in respect of any Funding Period, the
difference between the interest payable pursuant to clause 9.3 of the
Facility Agreement and the interest that would have been payable under
the Facility Agreement if the relevant interest rate had been the
aggregate of the Bank Bill Rate plus the Margin for the relevant
period;
"IPO" means an initial public offering of the Shares in the Company
and the listing of those Shares on a recognised stock exchange;
"MAJORITY DECISION" means:
(a) in the context of a meeting of the Board, a decision made or a
resolution passed by more than 50% of all Directors appointed at
the time the decision was proposed or resolution was moved
(notwithstanding the absence of one or more of such Directors
from such meeting of the Board); and
(b) in the context of a meeting of the Shareholders, a decision made
or a resolution passed by Shareholders entitled to more than 50%
of the voting Shares in the Company;
"MAJORITY SHAREHOLDER" means a Shareholder holding not less than 51%
of the issued capital of the Company;
"MARGIN" has the meaning contained in the Facility Agreement;
"MINORITY SHAREHOLDERS" means all Shareholders who are a party to this
Agreement other than the Majority Shareholder;
"NON-ASSIGNING PARTIES" has the meaning contained in Clause 12.2.2;
"OPTION EXERCISE PRICE" means the sum of $5 million;
"ORIGINAL RATE" means the Bank Bill Rate plus 2.5% per annum;
"PARTICIPANTS" means The Chase Manhattan Bank (ABN 93 074 112 011), SG
Australia Limited (ABN 72 002 093 021), Credit Lyonnais S.A., BOS
International (Australia) Limited (ABN 23 066 601 250), Bank of
Western Australia Limited (ABN 22 050 494 454) and The
Toronto-Dominion Bank (ABN 74 082 818 175) and "PARTICIPANT" means any
of them;
"QUARTERLY DATE" means the dates listed in the table in Clause 5.2;
"RECORDS" means:
(a) originals and copies, in machine readable or printed form, of all
books, files, reports, records, correspondence, documents and
other material of or relating to or used in connection with the
Company including minute books, statutory books and registers,
books of account and copies of taxation returns;
(b) sales literature, market research reports, brochures and other
promotional material;
(c) all sales and purchasing records;
(d) all trading and financial records; and
(e) lists of all regular suppliers and customers;
"RELATED ENTITIES" means entities in which 50% or more of the voting,
income or capital participation rights are held beneficially by the
same natural persons (whether directly or through one or more
interposed companies, partnerships or trusts);
"SECURITIES" means the Shares and Options held by a Shareholder in the
Company;
"SECURITY TRUSTEE" means CSAL as trustee for the Participants pursuant
to the Debenture Trust Deed between amongst others the Borrower and BT
Securities Limited dated 3 June 1996 and the Deed of Retirement and
Appointment dated 5 March 1998;
"SHARE" means an issued ordinary share in the Company and "SHARES"
means all issued ordinary shares in the Company from time to time;
"SHAREHOLDER" means the holder of a Share;
"SUBSCRIPTION SHARES" means 729,730 Shares being that amount of Shares
which, immediately after issue, will constitute 7.5% of the issued
share capital of the Company;
"SUBSIDIARY" has the meaning given to it in the Corporations Law;
"THIRD PARTY" means a person other than the Shareholders and their
Related Entities;
"THIRD PARTY OFFER" has the meaning contained in Clause 12.2.1.
1.2 INTERPRETATION
In this Agreement unless the contrary intention appears:
1.2.1 words importing the singular shall (where appropriate) include
the plural and vice versa;
1.2.2 words importing any one gender shall (where appropriate)
include the other gender and vice versa;
1.2.3 words importing natural persons shall (where appropriate)
include corporations, firms, unincorporated associations,
partnerships, trusts and any other entities recognised by law
and vice versa;
1.2.4 headings are for convenience of reference only and shall not
affect the meaning of interpretation of this Agreement;
1.2.5 reference in this Agreement to any statutory enactment or law
shall be construed as references to that enactment or law as
amended or modified or re-enacted from time to time and to the
corresponding provisions of any similar enactment or law of any
other relevant jurisdiction; and
1.2.6 references in this Agreement to Sections, Clauses, sub-Clauses,
paragraphs, Schedules and parties shall be construed as
references to the Sections, Clauses, sub-Clauses, paragraphs,
Schedules and parties of and to this Agreement;
1.2.7 references to (or to any specified provision of) this Agreement
or to any other agreement or document shall be construed as
references to (that provision of) this Agreement or that other
agreement or document as amended, substituted, novated,
supplemented, varied or replaced with the agreement of the
relevant parties and in force at any relevant time.
1.3 BUSINESS DAY
All moneys which fall due for payment under this Agreement on a date
other than a Business Day shall be paid on the next succeeding
Business Day (without interest or any other amount being payable in
respect of the period from but not including the date on which the
said moneys fall due for payment up to and including the said next
succeeding Business Day).
1.4 SUCCESSORS AND ASSIGNS
The obligations and liabilities imposed and the rights and benefits
conferred on the parties under this Agreement shall be binding upon
and enure in favour of the respective parties and each of their
respective successors in title, legal personal representatives and
permitted assigns.
1.5 PAYMENT OF MONEYS TO BE BY CASH OR BANK CHEQUE
Any payment of moneys by one party to another party pursuant to the
provisions of this Agreement shall be made in cash, electronic funds
transfer or by bank cheque or as otherwise may be agreed between the
Company and the relevant Shareholder, or between the relevant
Shareholders (as the case may be).
1.6 PARAMOUNTCY OF PROVISIONS OF THIS AGREEMENT
This Agreement shall apply to and bind each Shareholder from the
Effective Date and take precedence over anything to the contrary
contained in the Constitution or in any other document or agreement or
arrangement whatsoever other than the Facility Agreement and any other
agreement executed by all of the Shareholders which is clearly
expressed to be supplemental hereto or in substitution or variation
hereof. Nothing in this Agreement affects, limits, varies, amends or
restates in any way the rights of the Participants under the Facility
Agreement or the Security (as defined in the Facility Agreement).
1.7 DEFINITIONS IN FACILITY AGREEMENT APPLY
Undefined words in this Agreement shall, where applicable, have the
meaning given to those words in the Facility Agreement.
1.8 TERMINATION OF THIS AGREEMENT UPON AN IPO
This Agreement, (other than Clause 13), will terminate in the event of
an IPO. Such termination will take effect upon the listing of shares
issued pursuant to an IPO Prospectus on a recognised stock exchange.
1.9 TRANSACTION DOCUMENT
The parties acknowledge that this agreement is a Transaction Document
for the purposes of the Facility Agreement.
1.10 INCONSISTENCY
If any inconsistency arises between the terms of this Agreement,
(including, without limitation, Clause 13 of this Agreement), and the
terms of the Facility Agreement the parties acknowledge that the
Facility Agreement shall prevail to the extent of the inconsistency.
2 CORPORATE COVENANTS
2.1 No Alienation of any Securities will take place other than in
accordance with the provisions of this Agreement.
2.2 Each share certificate for the Shares shall bear the following legend:
"Any transfer, encumbrance or other disposition of shares in the
Company is restricted in accordance with the provisions of the
Constitution and the Shareholders Agreement dated [relevant date,
2001] between the members of the Company and the Company or any
amendment thereof made in accordance with its provisions, until the
expiry of the term of that Agreement".
3 SUBSCRIPTION OF SHARES
3.1 CSAL (as Security Trustee) agrees to subscribe for, and the Company
agrees to allot and issue to CSAL (as Security Trustee), the
Subscription Shares (free from any Security Interest and credited as
fully paid up) for A$1.
3.2 On the Effective Date, CSAL must:
3.2.1 deliver to the Company a duly completed and executed
application form for the Subscription Shares;
3.2.2 pay to the Company the sum of A$1.
3.3 On the Effective Date, the Company must:
3.3.1 allot and issue to CSAL the Subscription Shares credited as
fully paid and free of any Security Interest;
3.3.2 register CSAL as the holder of the Subscription Shares; and
3.3.3 issue share certificates representing the Subscription Shares
to CSAL.
4 BUY-BACK OF BUY BACK SHARES
4.1 If, on or before 28 February 2002, the Company has:
4.1.1 raised capital through the issue of additional Shares to any
party (including, for the avoidance of doubt, ABAH);
4.1.2 paid to CSAL an amount equal to the Interest Differential for
the period from the Effective Date until the date of payment by
the Company of the Interest Differential; and
4.1.3 agreed with CSAL to amend the Facility Agreement so that the
Interest payable under the Amended and Restated Senior Debt
Facility Agreement is payable at a rate equal to the Bank Bill
Rate plus the Margin for the period from the date of payment of
the Interest Differential to the Final Maturity Date,
then the Company may, subject to compliance with chapter 2J of the
Corporations Law, buy back the Buy Back Shares held by CSAL by the
payment of A$1.
4.2 If the Company repays the Facility in full then:
4.2.1 the Majority Shareholder may purchase; or
4.2.2 the Company may buy back,
the Shares (except for the Subscription Shares and any Shares issued
as a result of the exercise of the option in Clause 9) held by the
Minority Shareholders at that time for their market value at the time
of the purchase or buy back. The market value of such shares will be
determined by an Independent Valuer on the basis of a willing buyer
and a willing seller of the Shares held by the Minority Shareholders.
5 ISSUE OF FURTHER SHARES TO CSAL
5.1 The Company will issue to CSAL in quarterly instalments over the
period from the Effective Date to the Final Maturity Date, further
Shares in accordance with the table in Clause 5.2.
5.2 In consideration of payment by CSAL to the Company of a subscription
fee of $1 on each issue and subject to clauses 5.5 and 5.6 the Company
will issue Shares to CSAL in accordance with the following table:
------------------------------- ------------------------------
NUMBER OF ADDITIONAL SHARES DATE TO BE ISSUED
------------------------------------------- ------------------
21,963 30 June 2001
------------------------------- ------------------------------
22,063 30 September 2001
------------------------------- ------------------------------
22,163 31 December 2001
------------------------------- ------------------------------
22,263 31 March 2002
------------------------------- ------------------------------
22,365 30 June 2002
------------------------------- ------------------------------
22,467 30 September 2002
------------------------------- ------------------------------
22,570 31 December 2002
------------------------------- ------------------------------
22,673 31 March 2003
------------------------------- ------------------------------
22,778 30 June 2003
------------------------------- ------------------------------
22,883 30 September 2003
------------------------------- ------------------------------
22,988 31 December 2003
------------------------------- ------------------------------
23,094 31 March 2004
------------------------------- ------------------------------
5.3 On each Quarterly Date, CSAL must:
5.3.1 deliver to the Company a duly completed and executed
application form for the relevant Shares listed in Clause 5.2;
and
5.3.2 pay to the Company the sum of A$1.
5.4 On each Quarterly Date, the Company must:
5.4.1 allot and issue to CSAL the relevant number of Shares set out
in Clause 5.2, credited as fully paid and free of any Security
Interest;
5.4.2 register CSAL as the holder of the Shares; and
5.4.3 issue share certificates representing the issued Shares to
CSAL.
5.5 In the event that the Company repays part of the Facility prior to the
Final Maturity Date other than from Excess Cash Flow of the Company in
accordance with the Facility Agreement, ("Voluntary Repayment"), the
parties agree that the number of Shares to be issued to CSAL pursuant
to Clause 5.2 on or after the date of that repayment shall be
proportionately reduced by the same proportion that the Facility is
reduced by that Voluntary Repayment.
5.6 If, in the period from the Effective Date until the Final Maturity
Date, the Company issues additional Shares to ABAH or a Related Entity
of ABAH for less than market value (determined by an Independent
Valuer on the basis of a willing buyer and a willing seller of the
Shares), the Company must also issue to CSAL such number of Additional
Shares calculated in accordance with the following formula:
Additional Shares = Dilution Shares x Deficiency Percentage
where:
"DILUTION SHARES" = the number of whole Shares as would result in CSAL
maintaining the equivalent percentage shareholding in the Company that
it would otherwise have held but for the issue of Shares to ABAH or
its Related Entity
(Market Value - Subscription Amount)
"DEFICIENCY PERCENTAGE" = -------------------------------------
---------------------
(Market Value)
(expressed as a decimal fraction)
"MARKET VALUE" = the market value of the additional Shares to ABAH or
a Related Entity of ABAH (determined by an Independent Valuer on the
basis of a willing buyer and a willing seller of the Shares)
"SUBSCRIPTION AMOUNT" = the amount paid by ABAH or its Related Entity
in subscription for the additional Shares issued by the Company to
ABAH or its Related Entity
6 MANAGEMENT OF THE COMPANY
6.1 The day to day management of the Company shall be undertaken by the
chief executive officer of the Company in conjunction with the
Company's management staff.
6.2 Decisions of the Company required to be made by the Board shall be
made by Majority Decision.
6.3 Subject to Clause 7, decisions of the Company required to be made by
the Shareholders shall be made by Majority Decision, unless the
Corporations Law requires otherwise.
6.4 The Company must ensure that it gives prompt written notice to the
Shareholders of:
6.4.1 all litigation, disputes, and potential disputes (including,
without limitation, any prosecution, arbitration, proceedings
or administrative or governmental investigation or challenge)
affecting the Company which the Company reasonably believes, if
resolved in a manner unfavourable to the Company, will have a
Material Adverse Effect;
6.4.2 any substantial dispute which may exist between the Company and
any Governmental Agency or law enforcement authority which the
Company reasonably believes, if resolved in a manner
unfavourable to the Company, will have a Material Adverse
Effect;
6.4.3 any proposal by any public authority to acquire the assets or
business of the Company or to dispose of or to limit in any way
the Company's enjoyment of title to its freehold or leasehold
properties for the time being which the Company reasonably
believes, if resolved in a manner unfavourable to the Company,
will have a Material Adverse Effect; and
6.4.4 any proposal to amend the Constitution of the Company of which
it receives notice and any notices of meetings of Shareholders
of the Company convened or sought to be convened for that
purpose.
6.4.5 any proposal for the sale or disposal of any major asset,
undertaking or business of the Company.
6.5 The Shareholders will during normal business hours and on at least 5
Business Days notice be entitled to reasonable access to those of the
Company's records and documents which are not privileged and do not
contain trade secrets. Such documents shall be made available at the
Company's offices and shall not be duplicated or removed.
7 SHAREHOLDER CONSENT
7.1 Each of the matters set out below requires the unanimous prior consent
of Shareholders:
7.1.1 the variation of the rights attaching to any Shares in the
Company owned by CSAL or any of the Participants or ABAH or any
Related Entity of ABAH;
7.1.2 the purchase by the Company of any of its Shares or reduction
of the Company's share capital, other than as required by the
Constitution or this Agreement; or
7.1.3 the taking of steps to wind-up or dissolve the Company.
8 CSAL TO HOLD SHARES AS SECURITY TRUSTEE
CSAL acknowledges and agrees that it shall hold its Shares in its capacity
as Security Trustee and shall not be entitled and shall not transfer the
legal interest in any Shares to any Participant without the prior approval
of ABAH.
9 OPTION TO ACQUIRE FURTHER SHARES
9.1 The Company hereby grants to the Participants an option to subscribe
for such number of Shares, which in total shall comprise a further 5%
of the total issued capital of the Company ("OPTION Shares") as at the
Effective Date ("OPTION EXERCISE DATE") for the Option Exercise Price.
9.2 The Participants appoint the Security Trustee to act as their nominee
in respect of the Option.
9.3 The Borrower irrevocably and unconditionally authorises and directs
the Participants to apply the Option Exercise Price in permanent
reduction of the Principal Outstanding under the Revolving Credit
Facility. Any amount so applied will constitute a permanent reduction
of the Revolving Credit Commitment by the amount so applied. Any
amounts so applied under this clause discharges the Participant's
obligations under Clause 9.1.
9.4 The option to subscribe for the Option Shares granted to the
Participants pursuant to Clause 9.1 shall be exercisable by CSAL at
any time throughout the Term of the Amended Facility and shall only be
exercisable in respect of all of the Option Shares.
9.5 The Option Shares must:
9.5.1 be credited as fully paid ordinary shares;
9.5.2 rank equally in all respects with the other Shares; and
9.5.3 be free of any Security Interest.
10 OPTION TO APPOINT DIRECTOR
10.1 Subject to Clause 10.2, the parties agree that CSAL has an option to
appoint one Director if at any time it holds an amount of Shares equal
to 15% or more of the total issued share capital of the Company.
10.2 CSAL must not appoint any person as Director pursuant to Clause 10.1
unless that person is acceptable to ABAH (acting reasonably), having
regard to whether that person holds other directorships, employment or
consultancies with entities which are competitive with the Business,
whether that person possesses sufficient experience and skills for the
role of Director and the prior relationship between the Company and
that person (if any).
11 DISPUTES
11.1 RESOLUTION OF DISPUTES
If at any time during the term of this Agreement any doubt,
difference, question or dispute shall arise in relation to a matter
between any or all of the parties in relation to this Agreement or
otherwise in relation to the Company and its affairs, then such doubt,
difference, question or dispute may be referred by the Company or by
any Shareholder for mediation in accordance with Clause 11.2.
11.2 MEDIATION
11.2.1 Matters referred to mediation pursuant to Clause 11.1 shall be
referred to mediation administered by a person ("the Mediator")
to be mutually agreed upon by the parties in dispute or, if
they are unable to agree on the appointment of the Mediator
within 10 Business Days of a referral pursuant to Clause 11.1,
by a person nominated (within 2 Business Days of a request for
such nomination) by the President for the time being of the
Victorian Bar Council.
11.2.2 The Company and the Shareholders will procure that their
nominated representatives will attend at any conference
arranged by the Mediator for the purpose of the attempted
resolution of the dispute. At any mediation conference arranged
by the Mediator the mediation will be conducted under and in
accordance with such procedures and rules as may be agreed
between the parties and failing agreement, in accordance with
the rules set down by the Mediator and advised to the Company
and the Shareholders in writing.
11.2.3 Evidence of anything said, documents presented to, admissions
made or matters raised in the course of any conference with the
Mediator will be confidential to the parties and the Mediator
and will not, unless all parties consent, be admissible at any
subsequent hearing, arbitration or litigation proceedings.
11.2.4 Failing any agreement to the contrary between the parties to
the mediation, the costs of the Mediator shall be borne equally
by the parties to the mediation.
11.3 REFERENCE TO ARBITRATION
If the mediation procedures referred to in Clause 11.2 are unable to
resolve the dispute, then any party may refer the matter to
arbitration in accordance with Clause 11.4.
11.4 ARBITRATION
11.4.1 Matters referred to arbitration shall be referred for
determination by a person ("the Arbitrator") to be mutually
agreed upon by the parties in dispute or, if they are unable to
agree on the appointment of the Arbitrator within 10 Business
Days of referral pursuant to Clause 11.4, by a person nominated
(within 2 Business Days of request) by the President of the
Institute of Arbitrators Australia.
11.4.2 Any such dispute shall be determined by the Arbitrator in
accordance with and subject to the Institute of Arbitrators
Rules for the Conduct of Commercial Arbitrations.
11.4.3 The determination made by the Arbitrator shall be final and
binding on the Company and the Shareholders as to questions of
both fact and law.
11.4.4 The costs of the arbitration shall be borne in accordance with
the determination of the Arbitrator.
11.5 NO ACTIONS UNLESS CLAUSE 11 COMPLIED WITH
Subject to Clause 11.7 no Shareholder shall be entitled to commence or
maintain any action or court proceedings upon the doubt, difference,
question or dispute until such matter has been referred and determined
as provided in Clause 11.2, and if necessary, 11.4.
11.6 BREACH BY OTHER PARTY
If a party breaches the terms of this Clause 11, the other parties to
the dispute are not required to continue to comply with the dispute
resolution procedures set out in this Clause 11 and may take other
actions including initiating court proceedings.
11.7 INTERLOCUTORY RELIEF
Nothing in this Clause 11 (including Clause 11.5) prevents a party
from seeking or obtaining interlocutory relief.
12 TRANSFER OF SECURITIES
12.1 NO ALIENATION UNLESS PROCEDURES FOLLOWED
Notwithstanding anything to the contrary contained in this Agreement
or in the Constitution:
12.1.1 the Shareholders may at any time after the Effective Date
Alienate their Securities to a Related Entity provided that the
Related Entity shall enter into an agreement of the kind
required in Clause 12.2.6;
12.1.2 subject to Clause 16.1(m) of the Facility Agreement, the
Majority Shareholder may at any time after the Effective Date
Alienate some or all of its Securities to any third party
provided that any such third party transferee shall enter into
an agreement of the kind required in Clause 12.2.6;
12.1.3 the pre-emptive rights contained in this Clause 12 shall have
no application to any Alienation made pursuant to this Clause
12.1 or to any transfer of Securities in the context of:
12.1.3.1 an IPO;
12.1.3.2 issues of Shares any employee or executive share,
option or incentive scheme (provided that the
aggregate number of Shares the subject of the plan
does not exceed 10% of the Company's issued capital
at that time);
12.1.3.3 Shares issued by the Company in connection with any
acquisition, merger, share split or dividend
reinvestment plan;
12.1.3.4 Shares issued by the Company pursuant to Clauses 3, 5
or 9;
12.1.4 all assignments and other Alienation of Securities shall be
governed by the provisions of this Agreement; and
12.1.5 a Shareholder shall not Alienate its Shares other than as
permitted by this Agreement.
12.2 ASSIGNMENT OFFER
12.2.1 THIRD PARTY OFFER
If the Minority Shareholder receives a bona fide offer (a
"Third Party Offer") from a third party purchaser ("Proposed
Assignee") to purchase some or all of its Securities ("the
Equity Package") which the Minority Shareholder (the "Assigning
Party") wishes to accept, the Assigning Party shall immediately
notify in writing to the Majority Shareholder the price per
Share, terms and conditions of the Third Party Offer which
notification itself shall be an offer ("the Assignment Offer")
by the Assigning Party to assign the Equity Package to the
Majority Shareholder at that price and upon those terms and
conditions except that completion of the sale shall occur 20
days after the date of the Assignment Offer.
12.2.2 NON-CASH THIRD PARTY OFFER
Where a Third Party Offer comprises (wholly or in part)
consideration other than cash, the price of the Equity Package
(or part thereof) shall be deemed to be the cash equivalent
agreed between the Assigning Party and all other Shareholders
(the "Non-assigning Party"), and in the event of failure to
achieve such agreement within 3 Business Days of the Third
Party Offer, shall be deemed to be the cash equivalent
determined by an Independent Valuer instructed by the Board.
Any time period for the purposes of this Clause 12.2 shall be
extended by such time as may be required to obtain the
valuation of an Independent Valuer.
12.2.3 ACCEPTANCE OF ASSIGNMENT OFFER
If the Majority Shareholder wishes to acquire the Equity
Package, it shall notify the Assigning Party of its intention
to do so within 20 days of the date of the Assignment Offer
("the Acceptance Period") and such notification shall, upon
being received by the Assigning Party within the Acceptance
Period, constitute acceptance of the Assignment Offer. If the
Majority Shareholder does not so notify the Assigning Party in
writing within the Acceptance Period, the Majority Shareholder
shall be deemed to have declined to accept the Assignment
Offer.
12.2.4 SALE TO THIRD PARTIES OF WHOLE EQUITY PACKAGE IF ANY PORTION OF
EQUITY PACKAGE REMAINS UNSOLD
If the Assignment Offer has either not been accepted or has
been deemed to have been rejected pursuant to Clause 12.2.3,
the Assigning Party shall be free, subject to Clauses 12.2.6,
12.2.8 and 12.3, for a period of 45 days from the close of the
Acceptance Period to accept the Third Party Offer (for the
avoidance of doubt, at the price, and on terms and conditions
no more favourable to the Proposed Assignee than those
contained in the notice given by the Assigning Party pursuant
to Clause 12.2) and assign the whole of the Equity Package.
12.2.5 PROPOSED ASSIGNEE
If the Board, acting reasonably and in good faith, considers
that the Proposed Assignee (or any of its Related Entities) is
an actual or potential competitor of the Company or any
business undertaken by the Company and/or its Related Bodies
Corporate from time to time, then the Assigning Party may only
assign the Equity Package to the Proposed Assignee if the
Proposed Assignee acknowledges in writing to the Company before
that assignment that the only financial or other information
(excluding any information that is freely available to the
public about the Company or any information which the Proposed
Assignee can prove was already in its possession) in relation
to the Company the Proposed Assignee shall be entitled to as
Shareholder (whether pursuant to the Constitution, this
Agreement, or otherwise) will be a summary of the statutory
accounts prepared by the Company within 20 Business Days of the
preparation of those accounts.
12.2.6 ACCESSION DEED
Prior to any assignment or any other Alienation pursuant to
this Clause 12 the Assigning Party shall cause the Proposed
Assignee (if not already a party to this Agreement) to enter
into and deliver to the Company for the benefit of all the
Non-assigning Parties and the Company an Accession Deed.
12.2.7 RELEASE
12.2.7.1 Subject to Clause 12.2.7.2 with effect on and from
the date of assignment of the Equity Package to the
Proposed Assignee and/or to the Non-assigning Parties
(which includes the Accepting Parties for the
purposes of this Clause 12.2.7), the Assigning Party
shall be released from all future obligations and
liability pursuant to this Agreement (other than any
liability already accrued or due prior to the date of
assignment) in respect of or measured by the Equity
Package and on and from the date of assignment the
Non-assigning Parties will acknowledge the rights and
liabilities of the Proposed Assignee (or the
Non-assigning parties acquiring the Equity Package)
under this Agreement in respect of the Equity Package
(or the portion of the Equity Package which the
Proposed Assignee or Non-assigning Party is
acquiring).
12.2.7.2 For the avoidance of doubt, the Assigning Party shall
remain bound by its obligations of confidentiality
pursuant to Clause 13 on and from the date of
assignment of the Equity Package to the Proposed
Assignee.
12.2.8 FURTHER ASSURANCES
The Non-assigning Party shall, at the sole expense of the
Assigning Party, do, execute, acknowledge and deliver all such
further acts, deeds, assignments, deeds of covenant and
assurances as will perfect any assignment or the assumption of
obligations hereunder.
12.3 MINORITY SHAREHOLDER TAG ALONG AND DRAG ALONG
If a Majority Shareholder proposes to Alienate all of its Securities
("the Sale Package") pursuant to this Clause 12 it must notify each
Minority Shareholder of the price and other terms and conditions of
the offer and:
12.3.1 a Minority Shareholder may by the date 15 days after receipt of
an Assignment Offer pursuant to Clause 12.2 give notice (a
"Disposal Notice") to the Majority Shareholder that it wishes
to dispose of its Securities and if such notice is given, the
Majority Shareholder shall only be free to assign the Sale
Package to the Proposed Assignee if it procures that the
Proposed Assignee purchases from each Minority Shareholder
which has given a Disposal Notice its Securities at the same
price per Share, in the same manner and on the same terms and
conditions as the Proposed Assignee purchases the Sale Package;
and
12.3.2 the Majority Shareholder may at that time require each Minority
Shareholder which has given a Disposal Notice to Alienate all
of its Securities at the same price per Share and on the same
terms and conditions as the Proposed Assignee purchases the
Sale Package.
12.4 CONFIDENTIALITY
Each Shareholder acknowledges that the confidentiality provisions in
Clause 13 are to strictly apply to the provision of any information or
documents of whatever nature or in whatever form or in any discussions
with any potential purchaser (or their representatives) of any
Securities, and such Shareholder agrees that no disclosure of any
Confidential Information will occur unless a written confidentiality
agreement is obtained.
12.5 CONDITIONAL CONTRACTS
A Shareholder may enter an agreement or contract to Alienate
Securities which is in all respects conditional upon any consent or
procedure under this Agreement first being obtained or complied with
(as the case may be).
12.6 REGISTRATION OF TRANSFERS
The Company shall not register a transfer of Securities unless all
procedures or requirements set out in this Agreement relating to the
transfer of Securities have been complied with.
12.7 DEFAULT
If a Shareholder (a "Defaulting Shareholder") fails to comply with any
provision of this Clause 12, then each of the Directors of the Company
are hereby irrevocably appointed as the joint and several attorneys of
the Defaulting Shareholder to do all such acts, matters and things and
to execute transfers and other documents on behalf of the Defaulting
Shareholder to effect compliance by the Defaulting Shareholder with
its obligations under this Clause 12, and the Defaulting Shareholder
hereby ratifies and confirms all such actions carried out on its
behalf by the attorney or attorneys.
13 CONFIDENTIALITY
13.1 CONFIDENTIAL INFORMATION
Subject to Clause 13.2, a Shareholder must not disclose or reveal to
any third party any Confidential Information it has acquired in
connection with the Company or the Business under this Agreement and
shall take all reasonable precautions to prevent the Confidential
Information being learned or acquired by any unauthorised person or
persons.
13.2 PERMITTED DISCLOSURES
Notwithstanding the provisions of Clause 13.1, this Clause 13 shall
not apply to:
13.2.1 the disclosure of Confidential Information to a third party
with the prior written consent of the Board;
13.2.2 the disclosure of Confidential Information that a party is
required by law or the listing rules of any relevant stock
exchange, any order of any court, tribunal, authority or
regulatory authority, to disclose or reveal;
13.2.3 the disclosure of Confidential Information which is in the
public domain or becomes public knowledge other than as a
result of a breach by a party of their obligations of
confidence;
13.2.4 the disclosure of Confidential Information obtained by the
receiving party from a bona fide third party having a free
right of disposal of such information;
13.2.5 the disclosure of Confidential Information by a Shareholder to
its employees, or by a Shareholder to its legal, accounting and
financial advisers, on a need to know basis; or
13.2.6 the disclosure of Confidential Information by a Shareholder in
accordance with Clause 12.4.
13.3 REASONABLE STEPS TO MAINTAIN CONFIDENTIALITY
In relation to any disclosure of Confidential Information permitted
pursuant to Clause 13.2, the party making the disclosure shall take
reasonable steps to ensure that the circumstances surrounding the
manner in which the disclosure of that part of the Confidential
Information is undertaken are such as to maintain (to the extent
legally permissible) the confidentiality of that part of the
Confidential Information and to prevent disclosure into the public
domain of that part of the Confidential Information. For the avoidance
of doubt it is acknowledged and agreed that:
13.3.1 in some circumstances the law will require disclosure of
certain information into the public domain; and
13.3.2 what constitutes the taking of "reasonable steps" will differ
in different circumstances. Depending on practical, legal and
other considerations, any or all of the following may apply. It
may be satisfied by:
13.3.2.1 communicating verbally to the recipient of the
information, the fact that that information is
confidential;
13.3.2.2 receiving verbal undertakings from the recipient of
the information as to the maintenance of
confidentiality; or
13.3.2.3 procuring written undertakings from the recipient of
the information as to the maintenance of
confidentiality.
14 RELATIONSHIP OF PARTIES
Except as expressly provided by this Agreement:
14.1 the rights, duties, obligations and liabilities of each Shareholder
shall in every case be several and not joint or joint and several;
14.2 nothing in this Agreement will constitute or be construed to
constitute a Shareholder as the partner, agent, employee or
representative of another Shareholder or the Company or to create any
trust relationship between them;
14.3 a Shareholder has no power to incur obligations on behalf of or pledge
the credit of, another Shareholder or the Company in any matter
whatever; and
14.4 a Shareholder shall not have any authority to act for, or to create or
assume any responsibility or obligation on behalf of the other
Shareholder or the Company.
15 REPRESENTATIONS AND WARRANTIES
15.1 GENERAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants for the benefit of each other party
that:
15.1.1 (if it is a corporation) it is a corporation validly existing
under the laws of the place of its incorporation;
15.1.2 it has the power to enter into and perform its obligations
under this Agreement and to carry out the transactions on its
part to be carried out under this Agreement;
15.1.3 it has taken all necessary action, obtained all necessary
authorisations and has been granted all relevant powers to
authorise the entry into and performance of this Agreement and
to carry out the transactions on its part to be carried out
under this agreement;
15.1.4 this Agreement is a valid, binding and enforceable obligation
of it;
15.1.5 no litigation, arbitration, criminal or administrative
proceedings are current, pending or (to its knowledge)
threatened which if adversely determined would have a material
adverse effect on its ability to perform its obligations under
this Agreement;
15.1.6 neither the execution and performance by it of this Agreement
nor any transaction on its part to be carried out under this
Agreement will violate in any respect any provision of:
15.1.6.1 any treaty or law or any judgment, ruling, order or
decree of any governmental agency;
15.1.6.2 its Constitution or other constituent documents; or
15.1.6.3 any other document or agreement which is binding upon
it or its assets.
15.2 ABAH REPRESENTATIONS AND WARRANTIES
ABAH represents and warrants to CSAL that:
15.2.1 it holds unencumbered the Shares set out next to its name in
Schedule 1;
15.2.2 the Company has not granted any option, convertible note,
warrant or other security convertible into Share, except as
required under this Agreement; and
15.2.3 no administrator, controller, receiver, receiver and manager,
provisional liquidator, liquidator or other officer of the
court has been appointed or threatened to be appointed to ABAH
or the Company.
15.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES - EACH PARTY
Each party acknowledges that each other party has entered this
Agreement in reliance, inter alia, on the representations, warranties
and undertakings in Clause 15.1 and 15.2.
16 ACCESSION DEED
Each Shareholder acknowledges and agrees that upon a person ("the New
Shareholder") signing an Accession Deed in accordance with this Agreement
the New Shareholder shall be deemed to be a Shareholder for the purposes of
this Agreement and shall be entitled to enjoy all rights and benefits of
Shareholders under this Agreement.
17 COMPLETION AND ASSIGNMENT
17.1 Each of the parties shall exercise all such powers as are available to
them do all such acts and things and sign execute and deliver all such
documents and instruments as may be necessary or reasonably required
to give full effect to the provisions of this Agreement.
17.2 The obligations imposed and the benefits conferred on the parties
under this Agreement shall not be sold assigned transferred or
otherwise dealt with or disposed of by any of the parties without the
prior written consent and approval of the other parties first had and
obtained or as otherwise provided for in this Agreement.
18 WAIVER
18.1 The waiver by any of the parties of a breach or default by the other
party of any of the provisions of this Agreement shall not be
construed as a waiver of any succeeding breach or default of the same
or any other provisions of this Agreement and shall not impair the
exercise of any rights accruing to it under this Agreement thereafter;
nor shall any delay or omission on the part of any of the parties to
exercise or avail itself of any rights accruing to it under this
Agreement operate as a waiver of any breach or default by the other
party of any of the said provisions.
18.2 Time is of the essence of each party's obligations under this
Agreement.
19 ENFORCEABILITY
19.1 In the event that any provision of this Agreement or its application
to any person or circumstance is or is found to be invalid or
unenforceable the invalidity or unenforceability of such provision
shall not affect the validity or enforceability of the other
provisions to any person or circumstance and the said other provisions
shall remain in full force and effect.
20 NOTICES
20.1 All notices, requests, demands, requisitions, approvals, elections,
consents or other communications ("notices") required to be given or
served or given or served to or upon any of the parties pursuant to or
in connection with this Agreement shall be in writing in the English
language and shall be deemed to be duly given or made when delivered
(in the case of facsimile provided confirmation of transmission has
been received) to the party to which such notice is given or served at
the address of such party as follows:
If to the Company:
Address: 1144 Nepean Highway
Highett, Victoria 3190
Facsimile: (03) 9555 8135
Attention: The Directors
If to CSAL:
Address: Level 25, Grosvenor Place
25 George Street, Sydney
New South Wales 2000
Facsimile: (02) 9251 3371
Attention: The Directors
If to ABAH:
Address: 1144 Nepean Highway
Highett, Victoria 3190
Facsimile: (03) 9555 8135
Attention: The Directors
with a copy to :
Address: American Banknote Corporation
410 Park Avenue
New York, NY 10022-4407
United States of America
Facsimile: (212) 593 9615
Attention: Mr Steven G. Singer
or at such other address as the parties hereto may
hereafter specify for the purpose to the other parties by
notice in writing.
20.2 A written notice includes a notice by facsimile.
20.3 Any notice received by the recipient:
20.3.1 after 4pm (local time) shall be deemed to be received on the
next succeeding Business Day; and
20.3.2 on a day which is not a Business Day shall be deemed given on
the next succeeding Business Day.
20.4 Any such notice may be given or signed on behalf of the party giving
or serving the same by a director, secretary or other duly authorised
person thereof.
21 ENTIRE AGREEMENT
21.1 This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter to which this Agreement
relates and there are no other prior or subsequent agreements
understandings terms conditions warranties representations covenants
inducements promises arrangements or undertakings oral or written
whether express or implied between the parties extending defining or
otherwise relating to the provisions of this Agreement or binding on
the parties with respect to the subject matter to which this Agreement
relates.
21.2 No modification or amendment of any of the provisions of this
Agreement shall be binding upon any of the parties unless and until
the same has been made in writing and duly executed by all of the
parties.
22 COUNTERPARTS AND EXECUTION
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and such counterparts
together shall constitute one and the same instrument.
23 JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws for the time being in force in the State of New South Wales and the
parties hereby irrevocably submit to the non-exclusive jurisdiction of the
Courts of the said State including any Courts having appellate jurisdiction
from those Courts.
SCHEDULE 1
SHAREHOLDERS
--------------------------------------------- --------------- ------------------
SHAREHOLDER % OF ISSUED NUMBER OF
SHARES SHARES HELD
--------------------------------------------- --------------- ------------------
ABAH 92.5% 9,000,000
--------------------------------------------- --------------- ------------------
CASL (as Security Trustee) 7.5% 729, 730
------------------------------------------------- --------------- --------------
ANNEXURE A
ACCESSION DEED
THIS DEED is made the day of 200
BETWEEN:
ABN AUSTRALASIA LIMITED
(ABN 42 072 664 692)
("COMPANY")
- and -
##
- and -
##
- and -
NEW SHAREHOLDER
WHEREAS:
A [ ] are Shareholders in the Company pursuant to a Shareholders' Agreement
dated on or about [ ] (the "Shareholders' Agreement").
B The New Shareholder wishes to acquire all [a portion] of the Shares ("the
Equity Package") owned by the Assigning Party.
C It is a condition under the Shareholders' Agreement that each of the
parties hereto execute this Accession Deed.
NOW THIS DEED WITNESSES AS FOLLOWS:
1 INTERPRETATION
1.1 For the purposes of this Deed:
1.1.1 terms which are defined in the Shareholders' Agreement have the
same meanings when used in this Deed; and
1.1.2 the other provisions of Clause 1 of the Shareholders' Agreement
apply in the interpretation of this Deed.
1.2 In this Deed (including the Recitals) unless inconsistent with the
subject matter or unless the context otherwise requires:
"ASSIGNING PARTY" means [];
"COMPLETION DATE" means the date on which the sale of Shares under the
Shareholders' Agreement is completed between the Assigning Party and
the New Shareholder;
"CONTINUING ENTITIES" means [].
2 The New Shareholder:
2.1 ratifies and becomes a party to and agrees to be bound by the
Shareholders' Agreement and any other Agreement referred to in Clause
2.2; and
2.2 takes and accepts the assignment and transfer to it of all rights and
benefits and assumes the obligations and agrees to be bound by all of
the terms, conditions, restrictions, covenants and obligations of the
Assigning Party under:
2.2.1 the Shareholders' Agreement; and
2.2.2 any other agreement between the Assigning Party and the other
parties or to which they are parties relating to the
Shareholders' Agreement.
3 The Assigning Party acknowledges and agrees in favour of the Continuing
Parties and the Company that it shall remain liable for any unremedied
breach of the Shareholders' Agreement by the Assigning Party which occurred
before the time of acquisition of the Equity Package by the New
Shareholder.
4 Each of the Continuing Entities and the Company consent to the transfer of
Equity Package from the Assigning Party to the New Shareholder pursuant to
the Shareholders' Agreement and agree to execute all such further documents
and take such further action as may be necessary to give full effect to the
terms of this Deed.
5 For the purposes of the Shareholders' Agreement the address of the New
Shareholder to which all notices, consents, requests and other documents
required to be given or sent is:
[HERE INSERT THE ADDRESS OF THE NEW SHAREHOLDER].
6 This Deed shall be governed by and construed in accordance with the laws
for the time being in force in the State of New South Wales and the parties
hereby irrevocably submit to the non-exclusive jurisdiction of the Courts
of that State including any Courts having appellate jurisdiction from those
Cours.
7 This Deed may be executed in any number of counterparts, each of which will
be deemed an original but all of which will constitute one and the same
instrument.
EXECUTED as a Deed on the date written above.
SIGNED, SEALED AND DELIVERED by )
)
as attorney for ABN AUSTRALASIA LIMITED )
under power of attorney dated )
)
in the presence of: )
)
-------------------------- )
Signature of witness )
)
-------------------------- )
Name of witness (block letters) )
)
-------------------------- )
Address of witness )
) By executing this deed the attorney
__________________________ ) states that the attorney has
Occupation of witness ) received no notice of revocation of
the power of attorney
SIGNED, SEALED AND DELIVERED by )
)
as attorney for ## under power of )
attorney dated )
)
in the presence of: )
)
-------------------------- )
Signature of witness )
)
-------------------------- )
Name of witness (block letters) )
)
-------------------------- )
Address of witness )
)
__________________________ ) By executing this deed the attorney
Occupation of witness ) states that the attorney has received
) no notice of revocation of the power
) of attorney
IN WITNESS WHEREOF the parties the parties have executed this Agreement on the
day first written above.
SIGNED, SEALED AND DELIVERED by )
)
as attorney for AMERICAN BANKNOTE )
AUSTRALASIA HOLDINGS INC under power )
of attorney dated )
)
in the presence of: )
)
-------------------------- )
Signature of witness )
)
-------------------------- )
Name of witness (block letters) )
)
-------------------------- )
Address of witness )
) By executing this deed the attorney
__________________________ ) states that the attorney has received
Occupation of witness ) no notice of revocation of the power
) of attorney
SIGNED, SEALED AND DELIVERED by )
)
as attorney for CHASE SECURITIES )
AUSTRALIA LIMITED )
(ABN 52 002 888 011) under power of )
attorney dated )
)
in the presence of: )
)
-------------------------- )
Signature of witness )
)
-------------------------- )
Name of witness (block letters) )
)
-------------------------- )
Address of witness )
) By executing this deed the attorney
__________________________ ) states that the attorney has received
Occupation of witness ) no notice of revocation of the power
) of attorney
SIGNED, SEALED AND DELIVERED by )
)
as attorney for ABN AUSTRALASIA )
LIMITED under power of attorney dated )
)
in the presence of: )
)
-------------------------- )
Signature of witness )
)
-------------------------- )
Name of witness (block letters) )
)
-------------------------- )
Address of witness )
) By executing this deed the attorney
__________________________ ) states that the attorney has received
Occupation of witness ) no notice of revocation of the power
) of attorney
American Banknote Australasia Holdings Inc
and
Chase Securities Australia Limited
(ABN 52 002 888 011)
and
ABN Australasia Limited
(ABN 42 072 664 692)
SHAREHOLDERS AGREEMENT