BETWEEN: NATHAN JOHN STEWART Of Level 1, 1 Queens Road, Melbourne Victoria 3004 Australia ("Nathan") AND: FUTURE NOW INC
THIS
SHAREHOLDERS DEED
is made
on 2006
|
BETWEEN:
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Of
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
("▇▇▇▇▇▇")
|
|
AND:
|
FUTURE
NOW INC
|
of
▇▇▇▇,
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ New York 112 35 USA
("FutureNow")
|
AND:
|
ALKEMI
INTERNATIONAL PTY LTD
|
|
ACN
091 104 997
|
|
Of
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
("Company")
|
INTRODUCTION
|
A.
|
Nathan
is the sole Shareholder of the
Company.
|
|
B.
|
|
C.
|
FutureNow
is the licensor to the Company of certain CAS ‘Persuasion Architecture’
and ‘Persuasion Scenario Analysis’ intellectual
property.
|
|
D.
|
The
commercial relationship between FutureNow and the Company has matured
to
the extent that all parties hereto are in agreement that the commercial
synergies between FutureNow and the Company require a closer legal
relationship.
|
|
E.
|
Negotiations
between the parties have reached the point where the parties hereto
have
entered into a Heads of Agreement to consummate this
relationship.
|
|
F.
|
This
Deed has been entered into in pursuance of the above and for the
purpose
of more fully defining the future relationship of ▇▇▇▇▇▇ and FutureNow
as
shareholders (in the event that FutureNow becomes a shareholder in
the
Company) in both the Company and the operations of the business conducted
by the Company.
|
|
G.
|
In
terms of the Heads of Agreement, the parties thereto have also agreed
that
prior to the commencement of this Deed, the authorised and issued
share
capital in the Company will be increased to 959,3000 ordinary shares
and
that for purposes hereof, this shareholding in the Company is to
be valued
at Nine Hundred and Fifty Nine Thousand Three Hundred Australian
Dollars
(AUD $959,300).
|
|
H.
|
FutureNow
has expressed an intention to acquire up to fifteen per
centum
(15%) of the Company’s share capital by way of an additional share issue.
|
|
I.
|
In
pursuance of that intention, the Company will at commencement of
this
Deed, authorise the issue of 159,897 additional ordinary shares in
the
Company, and the Company will grant to FutureNow a Call Option, expiring
on 30 June 2011, to acquire those shares at a strike price of $1.00
per
share.
|
|
B.
|
In
the event that FutureNow exercises the Call Option to take up the
additional share issue (or any part thereof), then ▇▇▇▇▇▇ and FutureNow
have agreed that the terms of this Deed shall immediately come into
effect
|
IT
IS THEREFORE AGREED
| 1. |
DEFINITIONS
AND INTERPRETATION
|
| 1.1 |
Definitions
|
In
this
Deed and the Introduction, unless the context indicates a contrary intention,
the following words and phrases shall have the following meanings:
"Annual
Budget and Business Plan":
the
Annual Budget and Business Plan of the Company prepared by 31 May each year
and
approved by the Board pursuant to clause 4.5(a);
"Assets":
the
assets of the Company;
"Board":
the
board of Directors of the Company;
"Business":
the
business carried on by the Company and includes the generation of traffic by
way
of online marketing, conversion enhancement to turn web visitors into sales
and/or enquiries, performance tracking and enhancement and training and
consulting;
"Commencement
Date":
the
date of that FutureNow acquires a shareholding in the Company;
"Confidential
Information":
includes all of the intellectual property owned by or licensed to the Company,
the terms of this Deed and all or any of the other information concerning the
Business, including
but not limited to intellectual property rights, information about suppliers,
customers, employees, systems, research, concepts, marketing plans and
strategies,
which is
not at the time of such disclosure in the public domain;
"Constitution":
the
Constitution of the Company from time to time;
"Corporations
Act": the
Corporations ▇▇▇ ▇▇▇▇ (Cth);
"Director":
a
Person who holds such office;
"Dollars”
:means
Australian Dollars;
Event":
an
event set out in clause 12;
"Intellectual
Property":
all
technology, patents, trademarks, trade names, licences, copyrights, registered
designs, software and other computer programs, inventions, trade secrets,
proprietary processes, recipes, know-how, ideas, concepts, client lists and
marketing and commercial knowledge relating to or developed in connection with
or in support of the Business or developed, owned, licensed or enhanced by
any
of the parties;
"Item":
an
Item of Schedule 1;
"member":
a
registered holder of Shares;
"Month":
a
calendar month;
2
"Option
Notice":
a
written notice for the purposes of clause 1.1(b) of the Schedule 2 which is
to
contain notice of intention to acquire such of the Sale Shares at the purchase
price determined in accordance with clause 1.1(f) of the Schedule
2;
"Party":
a
party to this Deed its successors and assigns as permitted by this
Deed;
"Person":
an
individual or a corporation partnership limited liability company trust or
any
other entity or organisation;
"Principal":
in
respect to a Shareholder, the person, being a natural person, who has the
ultimate beneficial interest in and control of the shares held by the relevant
Shareholder which is a corporation and as at the Commencement Date is the person
whose name appears alongside the name of a Shareholder in Item 2;
"Related
Body Corporate"
has the
meaning given to it by section 9 of the Corporations Act;
"Sale
Shares":
where
a Transfer Notice has been issued the number of Shares mentioned in the Transfer
Notice and
where
an
Event occurs then all the Transferring Shareholder's Shares;
"Shareholder":
a
registered holder of Shares;
"Shares": shares
issued in the capital of the Company;
"Special
Condition":
a
special condition set out in Item 3;
"Special
Resolution":
a
resolution passed at a duly convened meeting of the Directors or members, as
the
case may be, entitled to be present and to vote at that meeting where two thirds
or more of the votes cast in person or by proxy are in favour of the
resolution;
"Transfer
Notice":
a
written notice to the Company from a Shareholder who wants to sell or transfer
all or any of its Shares and
in the
case of the occurrence of an Event the notice given by the Company in accordance
with clause 1.1(B) of Schedule 2;
"Transferring
Shareholder":
a
person referred and defined in clauses 11, 12 and Schedule 2; and
"Valuer"
means a
person or firm independent of the parties with at least 10 years experience
in
business and company valuations appointed by the President for the time being
of
the Institute of Chartered Accountants in Australia (Victorian
Branch).
|
1.2
|
In
the interpretation of this Deed and the Schedules, unless the context
otherwise requires:
|
|
(a)
|
words
importing the singular shall include the plural and vice versa, words
importing reference to any gender shall include all other genders,
words
importing persons shall include a reference to a corporation and
other
legal entities and vice versa;
|
|
(b)
|
paragraph
headings are for convenience only and shall not form part of this
Deed nor
affect its construction;
|
|
(c)
|
where
a word or phrase is given a particular meaning other parts of speech
and
grammatical forms of that word or phrase have corresponding
meanings;
|
3
|
(d)
|
a
reference to any Act of Parliament or code or section thereof or
Schedule
hereto shall be read as if the words "or any statutory modification
or
re-enactment thereof or substitution therefore" were added to the
reference;
|
|
(e)
|
a
reference to any clause, paragraph, Appendix or Schedule is, unless
the
context otherwise requires, a reference to a clause, paragraph, appendix
or Schedule of this Deed;
|
|
(f)
|
references
to any Party to this Deed or any other document or Deed shall include
his
or its personal representatives, successors or permitted
assigns;
|
|
(g)
|
references
to $ or dollar are references to the currency of the Commonwealth
of
Australia;
|
|
(h)
|
a
reference to this Deed includes any variation novation or
replacement;
|
|
(i)
|
if
a period of time is specified and dates from a given day or the day
of an
act or event, it is to be calculated exclusive of that day and a
reference
to a day is to be interpreted as the period of time commencing at
midnight
and ending 24 hours later; and
|
|
(j)
|
reference
to a Party using its best endeavours, reasonable endeavours, best
effort
or reasonable effort to procure any consent or assignment or other
act,
matter or thing shall not of itself require that Party to give any
consideration whatsoever for such consent, assignment, act, matter
or
thing.
|
|
1.3
|
Where
the date for performance by a Party of an obligation falls on a Saturday,
Sunday, public holiday or day on which banks are closed for business
in
Melbourne, that date shall be extended to the next date on which
banks are
open for business in Melbourne (referred to as a "business
day").
|
| 2. |
COMMENCEMENT
AND SHAREHOLDER COMMITMENT
|
|
2.1
|
This
Shareholders Deed begins on the Commencement Date and therefore all
rights, agreements and obligations contained in this Shareholders
Deed are
effective from the Commencement Date and not
before.
|
|
2.2
|
The
Shareholders shall procure their respective representatives on the
Board
to:
|
| (a) |
work
as a team to secure appropriate funding for the
Business;
|
|
(b)
|
utilise
their respective knowledge and skills to assist the Company achieve
its
objectives.
|
| 3. |
THE
CONSTITUTION
|
On
and
from the Commencement Date, the Shareholders shall ensure that the Constitution
is not amended in any way which is contrary or inconsistent with the provisions
of this Deed unless the proposed amendment or amendments are unanimously agreed
by the Shareholders.
4
| 4. |
THE
COMPANY
|
| 4.1 |
Object
and Purpose
|
The
object and purpose of the Company is:
|
(a)
|
to
generate traffic by way of online marketing, conversion enhancement
to
turn web visitors into sales and/or enquiries, performance tracking
and
enhancement and training and
consulting;
|
|
(b)
|
to
market and promote the Business according to the marketing strategy
and
activities plan as approved by the Board from time to
time;
|
|
(c)
|
maximise
the profits of the Company; and
|
| (d) |
generally
to carry out any activity ancillary to the
foregoing.
|
| 4.2 |
Directors
of Company, Meetings
|
The
Shareholders and the Company agree that:
| (a) |
until
and unless otherwise unanimously agreed by the Shareholders, the
number of
Directors of the Company shall be two. Those Directors will be appointed
in accordance with the Constitution and the provisions of this
Deed;
|
| (b) |
a
Shareholder shall be entitled to appoint one Director to the Board
of the
Company to represent its interests notwithstanding that it holds
less than
10% of all the Shares on issue;
|
| (c) |
the
power to appoint a Director shall carry with it the power to remove
that
Director from office, and to appoint any other person to be a Director
in
place of an appointed Director who dies, resigns, is removed or otherwise
vacates his office;
|
| (d) |
any
appointment or removal of a Director of the Company shall be in writing
served upon the Company and signed by the person entitled to so appoint
or
remove such Director or by his duly authorised agent, attorney or
representative, and shall become effective upon delivery of such
written
instrument to the registered office of the
Company;
|
| (e) |
a
quorum at a meeting of the Board of the Company shall consist of
two
Directors PROVIDED
THAT
if
a quorum is not achieved within half an hour of the time fixed for
the
meeting by the notice given for it, such meeting shall be adjourned
for at
least seventy-two (72) hours and the unrepresented parties shall
immediately be notified by facsimile of the
adjournment;
|
| (f) |
a
quorum for a meeting of the members of the Company shall consist
of two
shareholders holding in aggregate at least 51% of the Shares present
in
person or by proxy or by representative provided that in the event
that a
quorum is not achieved within half an hour of the time fixed for
the
meeting by the notice given for it, such meeting shall be adjourned
for at
least seventy-two (72) hours and the unrepresented party shall immediately
be notified by facsimile of such adjournment, at the adjourned meeting
the
quorum shall be any one shareholder holding not less than 51% of
the
shares;
|
5
| (g) |
a
meeting of the Board or a meeting of the members may be called or
held
using any technology consented to by all Directors (in the case of
a Board
meeting) and by all members (in the case of a members meeting); the
consent may be a standing one;
|
| (h) |
(i)
|
decisions of the Board and the members shall be made by simple majority vote, unless otherwise stated in this Deed; |
| (ii) |
each
Director present at a meeting of the Board shall be entitled to one
vote
for each Share held by the Shareholder he or she
represents;
|
| (i) |
the
Board shall endeavour to meet each month but in any event will meet
at
least once each quarter year;
|
| (j) |
subject
to the Corporations Act or the consents referred to in clause 4.2(g),
notice of all meetings of the Board, and members shall be communicated
in
writing by letter, receipted email or facsimile at least 7 days prior
to
the meeting;
|
| (k) |
a
Shareholder may nominate an alternative representative to the Board
of the
Company and remove any representative or alternate so appointed,.
A
nominated replacement representative to the Board shall be made by
notice
in writing to the Company delivered to its registered
office;
|
| (l) |
minutes
recording the resolution of the Board of the Company or a resolution
of
the members shall be signed by the Chairman of the meeting and copies
of
such minutes shall be circulated to each Shareholder within seven
days of
the holding of all such meetings;
and
|
| (m) |
a
director appointed by a Shareholder may take into account the interests
of
that Director’s appointor and may act on the wishes of that appointor in
performing any of his or her duties or exercising any right, power
or
discretion as a director except to the extent prohibited by law or
where
no honest and reasonable director could have formed the view that,
in
doing so, the Director was acting in good faith in the best interests
of
the Company as a whole.
|
| 4.3 |
Chairman
|
|
(a)
|
The
office of Chairman of the Board ("Chairman")
shall be selected by and from the Board.
|
|
(b)
|
The
Chairman shall be responsible for convening all meetings of the Board
required or permitted in accordance with this Deed or the Constitution,
or
upon the request in writing of any member of the Board or upon a
request
in writing by either Shareholder.
|
|
(c)
|
The
Chairman, with the assistance of the secretary, shall fix the agenda
for
each meeting of the Board and shall include thereon all matters requested
by any member of the Board.
|
|
(d)
|
The
Chairman, or in his or her absence another member of the Board designated
by the Chairman, shall be the presiding officer at all meetings of
the
Board and shall attempt to negotiate compromises among directors
when
unanimity cannot be reached on a matter properly before the
Board.
|
| (e) |
The
Chairman shall have a casting vote.
|
6
| 4.4 |
Matters
requiring Special
Resolution
|
The
following activities, matters and decisions shall only be done or made by
Special Resolution of the Board:
| (a) |
contracts
or commitments entered into other than in the ordinary course of
business
or other than in the ordinary course of commercial dealings in good
faith;
|
| (b) |
contracts
or arrangements to be entered into between the Company and a Shareholder
or any entity or person associated with a
Shareholder;
|
|
(c)
|
the
employment or termination of a chief executive officer, chief financial
officer or personnel in other senior management positions within
the
Company, including approval of job descriptions and remuneration
package
and severance payments;
|
| (d) |
the
sale or other disposal of the Business or a substantial part of the
Assets
of the Company;
|
| (e) |
a
material change in the nature of the Business;
and
|
| (f) |
the
increase or decrease in Shares on issue or any amendments to the
rights or
classification of any Shares.
|
| 4.5 |
Action
by the Board
|
The
Company shall not implement or otherwise act with respect to any of the
following matters unless such matters have been approved by action of the
Board:
|
(a)
|
adoption
of the Annual Budget and Business Plan for any year, provided that
if the
Annual Budget and Business Plan prepared by 31 May for any year is
not
approved, it shall be modified as directed by the Board and resubmitted
for such approval;
|
|
(b)
|
approval
of Contracts and proposals which may pose significant risk to the
Company
or which are outside the normal course of
business;
|
|
(c)
|
approval
of amendments to proposals and Contracts which either exceed + or
- 10% of
the proposal/Contract value or have a significant Contract
impact;
|
|
(d)
|
incurrence
(including by guarantee or assumption) of any indebtedness (including
the
opening of lines of credit or borrowing) that is not included in
the
Annual Budget and Business Plan;
|
|
(e)
|
any
commitment or expenditure by the Company not covered by the Annual
Budget
and Business Plan that exceeds
$5,000.00;
|
|
(f)
|
acquisition
or disposal of any real estate;
|
|
(g)
|
negotiation
or arrangement or documentation or entry into any lending or borrowing
transaction, including (but not limited to) finance leases, securities,
loans, mortgages, overdrafts of any kind or bank
guarantees;
|
|
(h)
|
actual
expenditure or a commitment to spend capital expenditure which is
not
covered by either an Approved Budget or contract deliverable or which
is
more than $5,000.00 per item or group of related items (including
items
proposed to be leases where the total exceeds
$5,000.00);
|
7
|
(i)
|
any
contracting arrangements or business that are not included in the then
current, approved Annual Budget and Business Plan that exceed $5,000.00
per annum;
|
|
(j)
|
the
initiation (whether through complaint, counter claim or otherwise),
compromise or settlement of, or the taking of any material decision
concerning, any legal, judicial, administrative or arbitration proceeding
to which the Company is or may become a party;
and
|
|
(k)
|
approval
of the marketing strategy and activities plan and
budget.
|
|
4.6
|
Delegation
|
The
Board
by ordinary resolution may delegate the right to take or approve any action
with
respect to the matters listed in clause 4.5(a) to any Person.
| 5. |
SHAREHOLDER
EQUITY
|
| 5.1 |
As
at the date of this Deed, the Shareholders hold the following
Shares:
|
|
Shareholder
|
No.
of Shares
|
|||
|
▇▇▇▇▇▇
|
2
(100
|
%)
|
||
|
FutureNow
|
Nil
(0
|
%)
|
||
At
the
date of commencement of this Deed, the Shareholders will hold the following
shares
|
Shareholder
|
No.
of Shares
|
|||
|
▇▇▇▇▇▇
|
959,300
(100
|
%)
|
||
|
FutureNow
|
At
least 1 share, but with Call Options to bring its total shareholding
in
the Company to 159,878 shares
|
|||
|
5.2
|
The
parties agree that Future Now will, during the period of five (5)
years,
commencing on the Commencement Date, have the right to increase its
equity
in the Company from one (1) share to fifteen (15) percent of the
authorised shares in the Company, by applying for the allotment of
159,878
additional Shares. The issue price of each such additional Shares
shall be
One Dollar ($1.00) per share.
|
8
| 6. |
THE
BANK, COMPANY BOOKS AND INSPECTION OF
RECORDS
|
|
6.1
|
Bank
Account
|
|
(a)
|
The
principal bank account of the Company shall be at such bank as may
from
time to time be determined by the Board. All income derived by the
Company
shall be deposited forthwith in the relevant bank
account.
|
| (b) |
The
bank accounts shall be capable of being operated by nominee signatories
of
two Directors of the Company.
|
| (c) |
The
bank accounts shall be available to meet all costs, expenses and
disbursements incurred by the
Company.
|
| 6.2 |
Audit
|
Unless
unanimously agreed by the Board, the annual financial statements of the Company
shall not be audited.
| 6.3 |
Examination
of books
|
Any
Shareholder may arrange for accountants to peruse and examine all accounting
and
financial records of the Company at its expense. Shareholders shall have
reasonable access with its agents to examine and copy the books, records,
papers, letters and documents of the Company however
in
exercising these rights the Shareholders shall act in a fiduciary capacity
to
the Company.
| 7. |
FINANCIAL
PROVISIONS
|
| 7.1 |
Annual
Account
|
|
Within
ninety (90) business days of each financial year the Company's accountants
shall establish the accounts for the preceding year and submit them
to the
Board for review following which the annual accounts shall be submitted
to
the Shareholders for approval in a timely
manner.
|
| 7.2 |
Annual
Budget and Business Plan
|
|
At
least two months before the end of each financial year the Annual
Budget
(which is to include cashflows) and Business Plan for the subsequent
year
shall be submitted by the nominated person to the Board for approval.
The
Annual Budget and Business Plan shall provide for a contingency line
in a
fixed amount to cover any unexpected commitment or expenditure that
may
arise during the financial year. The Annual Budget and Business Plan
shall
specifically provide for the financial means required for the operation
of
the Company.
|
| 7.3 |
Financial
Year
|
|
The
financial year of the Company shall run from 1 July to 30
June.
|
| 7.4 |
Books,
Records and Financial
Statements
|
|
(a)
|
The
Company shall maintain, at its principal place of business, separate
books
of account for the Company that shall show a true and accurate record
of
all costs and expense incurred, all charges made, all credits made
and
received and all income derived in connection with the operation
of the
Company business in accordance with generally accepted accounting
principles in Australia consistently
applied.
|
9
|
(b)
|
The
Company's books of accounts, together with a copy of this Deed and
of the
Constitution and all records and correspondence of the Company (except
for
data the disclosure of which is restricted under the terms of this
Deed or
applicable law) shall at all times be maintained at the principal
place of
business of the Company and shall be open to inspection and examination
at
reasonable times by each Shareholder and its duly authorised
representative for any purpose reasonably related to such Shareholder's
interests as Shareholder of the Company and its rights and obligations
under this Deed.
|
|
(c)
|
The
following financial information shall be provided to each Shareholder
as
soon as possible and in any event within 30 days after the close
of each
financial year quarter:
|
|
(i)
|
balance
sheet of the Company and subsidiaries as of the beginning and close
of
such quarter;
|
|
(ii)
|
statement
of the Company profits and losses and changes in financial position
and
Shareholder equity for such financial quarter;
and
|
|
(iii)
|
cashflow
statement.
|
| 7.5 |
Accounting
Method
|
|
For
both financial and tax reporting purposes and for purposes of determining
profits and losses, the books and records of the Company shall be
kept on
the accrual method of accounting applied in a consistent manner and
shall
reflect all the Company transactions and be appropriate for the Company's
business.
|
| 7.6 |
Dividend
Policy
|
The
Board
shall, unless to do so would be in breach of their fiduciary duties and
obligations owed to the Company, declare and distribute a dividend of not less
than thirty (30) per centum of the after tax profits of the Company per annum
from the expiration of the second financial year after the Commencement Date,
provided that any such dividend shall be only distributed when the Company
has
sufficient available cash reserves. It is intended that the dividend declared
in
respect of any year will be paid in one instalment with the dividend being
paid
within 30 days after the day on which the dividend is declared. The due date
for
the declaration of the dividend shall be no later than six (6) months after
the
end of the financial year.
8. INTELLECTUAL
PROPERTY AND CONFIDENTIAL INFORMATION
| 8.1 |
Non
disclosure
|
All
Confidential Information disclosed by the Company to any Shareholder under
or in
connection with this Deed shall be and shall be deemed to be disclosed on terms
of strict confidence, permanently prohibiting further disclosure or use by
the
recipient which is not authorised under this Deed. Each Shareholder shall keep
Confidential Information confidential.
10
| 8.2 |
Exception
|
A
Shareholder shall not be liable for disclosure of any Confidential Information
where the Confidential Information is:
| (a) |
within,
or later falls within, the public domain through no fault of the
recipient;
|
| (b) |
already
known by the recipient, its employees, officers or agents as sustained
by
documentation prior to the
disclosure;
|
| (c) |
legally
obtainable without restriction from another
source;
|
| (d) |
approved
for release or use by written authorisation from the person transmitting
the information.
|
| 8.3 |
Reasonable
endeavours to
protect
|
The
Parties will each use all reasonable endeavours at all times to protect and
preserve the confidential nature and continued secrecy of all Confidential
Information of or relating to the Company.
|
8.4
|
Permitted
disclosure
|
Nothing
in this clause 8 prohibits the disclosure of Confidential
Information:
| (a) |
to
the extent necessary to a professional consultant, an accountant,
solicitor or any other person or body acting for and in circumstances
necessary to protect or advise upon the rights of a Shareholder,
the
Company in relation to the Business and the arrangements established
under
this Deed, provided such person or persons undertake in writing (in
a form
acceptable to the Shareholders) to keep the same confidential at
all
times;
|
| (b) |
where
required by a stock exchange on which the Shareholder is listed;
|
| (c) |
in
a public disclosure document on a public
listing;
|
| (d) |
where
required by law; or
|
| (e) |
in
a manner or to a person to whom disclosure is expressly permitted
or
contemplated under this Deed.
|
| 8.5 |
Survival
of obligation
|
The
rights and obligations of the parties with respect to confidentiality shall
survive termination of this Deed.
| 9. |
MUTUAL
COVENANTS AND RELATIONSHIP OF
PARTIES
|
| 9.1 |
Terms
|
Each
Shareholder covenants and agrees with the other Shareholders:
| (a) |
to
be just and faithful to the others in all transactions relating to
the
Company and to give a true account of the same to them when and as
often
as the same shall be reasonably
required;
|
11
| (b) |
to
inform the other Shareholders of all matters accounts writings and
other
things of which they may have become possessed of concerning the
Company;
|
| (c) |
forthwith
upon receipt of any cheques, negotiable instruments, or moneys belonging
to the Company to pay them into the Company's bank
account;
|
| (d) |
punctually
pay and discharge its respective obligations under this
Deed;
|
| (e) |
not
to use for its own benefit advantage or enjoyment any records, reports
or
other information relating to the affairs of the Company or the
Intellectual Property or Confidential Information of the
Company;
|
| (f) |
not
to act in any manner which may be prejudicial to the Company;
and
|
| (g) |
at
all times to promptly and fully give to the other Shareholders all
information and truthful explanations of all matters relating to
the
affairs of the Company.
|
| 9.2 |
Other
business
|
Other
than as provided in clause 15, the provisions of this Deed shall in no way
restrict or prohibit any party from carrying on any other business PROVIDED
THAT
in doing
so that party duly and punctually observes and complies and at all times
continues to observe and comply with its obligations under this Deed. The
parties agree further that each Principal employed in the Business on a
full-time basis is expected to devote his or her whole time and abilities
(unless absent on leave as provided for in this agreement or through injury
or
illness) during normal working hours, and at such other times as may be
reasonably necessary to the proper performance of his or her duties, to that
employment.
| 9.3 |
No
fiduciary relationship
|
The
Shareholders agree that none of them shall be deemed to have any fiduciary
relationship or obligation to the others of them except as specifically provided
for in this Deed or elsewhere in writing.
| 9.4 |
No
authority to bind; no
partnership
|
Nothing
in this Deed shall be construed as to constitute any Shareholder, the general
agent or representative of the other or others or to confer on any Shareholder
any authority to bind or pledge the credit of the other or others and it is
acknowledged and agreed that this Deed does not constitute a partnership and
that no Shareholder shall hold itself out as a partner of the other or
others.
12
| 10. |
FUNDING
|
| 10.1 |
Future
funding
|
If
the
Company's Board determines that further capital is required (for working
capital, acquisitions, other investments or otherwise), the Parties agree that
the funding will be sought in the following order:
|
(a)
|
external
debt funding , then
|
|
(b)
|
Shareholder
debt funding (pro rata to the shareholding in the Company of the
Shareholders); then
|
| (b) |
equity
funding (pro rata to the shareholding in the Company of the
Shareholders).
|
Provided
that funding has been sought in the order described above, where a Shareholder
is required to contribute it's pro rata share of the further equity to be raised
and does not wish, or is unable, to do so in the time period required by the
Company's Board (which must not be less than 1 month), the other Shareholder
may
choose to contribute an additional amount, being the amount which was to have
been contributed by the Shareholder, in addition to it's own pro rata
contribution;
Provided
further that no equity funding will be sought from non-shareholders, save and
except with the unanimous resolution of the Company’s Shareholders.
| 10.2 |
Conversion
of debt funding to equity
|
Debt
owed
by the Company to a Shareholder may only be converted to equity by unanimous
resolution of the Shareholders.
| 10.3 |
No
guarantee
|
No
Shareholder nor Director shall be obliged to provide any guarantee, indemnity
or
other security to support or secure the obligations of the Company.
| 10.3 |
No
obligation
|
No
Shareholder shall be obliged to subscribe for additional Shares.
| 11. |
PROHIBITION
ON DISPOSAL OF SHARES
|
| 11.1 |
Prohibited
dealings
|
Other
than as provided in clause 11.2, clause 11.3 or clause 12, no Shareholder shall,
without the prior written consent of the other Shareholders, sell, assign,
transfer, declare itself trustee, mortgage, charge, pledge or otherwise dispose
of or encumber its Shares or its other entitlements created under this Deed
except in accordance with the provisions of this Deed.
| 11.2 |
Transfer
Notice
|
At
any
time after the Commencement Date, a Shareholder may issue a Transfer Notice
to
the Company (that Shareholder called here and in Schedule 2 as a "Transferring
Shareholder").
The
Company shall forthwith notify the other Shareholders of its receipt of the
Transfer Notice and the provisions of Schedule 2 shall apply.
13
|
11.3
|
Permitted
dealings
|
Notwithstanding
clause 11.2 a Shareholder may, subject to the written consent of the other
Shareholders, which consent shall not be unreasonably withheld, and subject
to
compliance with clause 13, transfer all its Shares to:
| (i) |
a
Related Body Corporate of the Shareholder;
or
|
| (ii) |
a
company or trust controlled by a person or one or more persons referred
to
in (i) above.
|
| 12. |
OCCURRENCE
OF SPECIFIED EVENTS
|
If
any of
the following events occur then subject to clause 13, the provisions of Schedule
2 shall apply:
| (a) |
if
a Shareholder without obtaining the consent required by virtue of
clause
11.1, pledges as security its Shares by way of mortgage, lien or
otherwise
(that Shareholder called here and in the Schedule 2 as a "Transferring
Shareholder");
|
| (b) |
if
a Shareholder without the consent of all other Shareholders executes
a
deed of trust or otherwise disposes or attempts to dispose of its
Shares
(that Shareholder called here and in the Schedule 2 a "Transferring
Shareholder");
|
| (c) |
if
a mortgagee of assets of a Shareholder takes possession of them or
if a
receiver, manager, provisional liquidator, administrator or liquidator
("controller")
is appointed to a Shareholder (that Shareholder called here and in
Schedule 2 a "Transferring
Shareholder")
and within 21 days of the date of the mortgagee taking possession
or the
appointment of the controller the appointment has not been dismissed
or
set aside;
|
| (d) |
if
a Shareholder defaults in performance or observance of any material
covenant condition or agreement in this Deed and that default prejudices
or is capable of prejudicing the interests of the others and the
default
is not remedied in 30 days after receipt by that Shareholder, of
a written
notice from the others requiring that Shareholder to remedy the default
(the Shareholder failing to remedy in accordance with this sub-clause
is
called here and in Schedule 2 a "Transferring
Shareholder");
|
| (e) |
if
a Shareholder (such Shareholder called here and in Schedule 2 a
"Transferring
Shareholder")
without the prior written approval of the other Shareholders and
the
Company, is directly or indirectly engaged, interested or concerned
in any
capacity whatsoever (whether as promoter, shareholder, director,
sole
trader, partner, joint venturer, employee, agent, consultant, adviser,
trustee, lender, supplier, licensor, owner or part owner or any other
capacity) in any enterprise which carries on a business or proposes
to
carry on a business which uses or intends to use technology, goods
or
services which are capable of competing in markets similar to those
intended by the Company in the conduct of the
Business;
|
| (f) |
where:
|
| (i) |
a
change in control occurs in a Shareholder whether occurring at one
time or
through a series or succession of occurrences (that Shareholder called
the
"Target")
or the Target's holding company ("holding company" having the meaning
ascribed to it in Section 9 of the Corporations Act) (the "Holding
Company");
or
|
14
| (ii) |
a
change or alteration occurs in the corporate structure of the Target
or
the Holding Company
|
which
results in a person or corporation other than the shareholders of the Target
or
the Holding Company (as the case may be) as at the date of execution of this
Deed:
| (A) |
controlling
the composition of the Board of the Target or the Holding
Company;
|
| (B) |
controlling
the voting power of the Board of the Target or the Holding
Company;
|
| (C) |
holding
more than one half of the issued share capital of the Target (either
beneficially or otherwise) or the Holding Company (either beneficially
or
otherwise)
|
and
that
change occurs without the written consent of the other Shareholders (unless
the
Target or the Holding Company is a company or companies the shares of which
are
listed on any stock exchange in Australia or is a subsidiary of any such
company), the Target shall be deemed to be a "Transferring
Shareholder"
for the
purposes of this clause and Schedule 2. A transfer of shares in the Target
or
Holding Company shall not be an event which brings about a change in control
for
the purpose of this clause 12(g) if it is a transfer to a wholly owned
subsidiary or to a holding company which owns all of the issued shares of the
transferor;
|
(g)
|
if
a Shareholder purports or attempts to transfer or deal with its Shares
other than in accordance with this Deed and unless within 5 days
of notice
of such an event coming to the attention of the other Shareholders,
they
excuse that transfer or dealing by written notice given to the Company
and
the Shareholder who has purported or attempted to transfer or deal
with
its Shares other than in accordance with this Deed (that Shareholder
called here and in Schedule 2 a "Transferring
Shareholder"
who shall be deemed to have given a Transfer
Notice);
|
| (h) |
if
a Shareholder being an individual, dies or becomes bankrupt, commits
an
act of bankruptcy or brings his estate within any law relating to
bankruptcy or in the case of a Shareholder that is a corporation
if the
Principal becomes bankrupt, commits an act of bankruptcy or brings
his
estate within any law relating to bankruptcy (that Shareholder called
here
and in Schedule 2 a "Transferring
Shareholder");
|
|
(i)
|
if
a person specified in Item 2:
|
| (i) |
becomes
bankrupt or compounds with his creditors or assigns his estate for
the
benefit of his creditors;
|
| (ii) |
becomes
of unsound mind or is placed under the control of a committee or
officer
under a law relating to mental health;
|
15
(iii)
dies;
(iv)
is guilty of any dishonesty in relation to the Company;
(v)
is guilty of any breach of the Corporations Act;
(vi)
for any reason ceases to be eligible to hold office as a director of the
Company; or
(vii)
being an employee of the Company, retires or resigns from that employment
or has
that employment terminated on account of:
(A)
serious misconduct or fraud;
(B)
any serious breach of faith, or serious neglect or default or wilful disregard
of directions;
(C)
the use or abuse alcohol or drugs to the extent he is no longer able to
properly
perform his functions under his contract of employment;
(D)
he is convicted of an indictable or criminal offence;
then
the
Shareholder whose name appears along side the name of that person in Item
3
shall for the purposes of this clause and for the purposes of Schedule
2 be
called "Transferring
Shareholder";
(j)
if a Shareholder becomes of unsound mind or is placed under the control
of a
committee or officer under a law relating to mental health (that Shareholder
called here and in the Schedule 2 a "Transferring
Shareholder").
13.
TRANSFER TO THIRD PARTY
Where
a
Shareholder transfers part of its Shares to a third party with the consent
of
the other Shareholders or otherwise in compliance with this Deed, the incoming
Shareholder and the then current Shareholders must before the incoming
Shareholder's name is registered in the register of Shareholders execute
a Deed
of Accession by which the incoming Shareholder agrees to observe and be
bound by
this Deed as if it had executed this Deed as a party. The form of Deed of
Accession is contained in Schedule 3.
14.
DRAG ALONG OPTION
14.1
Drag
Along Option
If
at any
time a Shareholder or Shareholders holding not less than 50% of the issued
shares of the Company ("Majority
Shareholders"),
wish
to transfer all the Shares held by them ("Sale
Shares")
and
all other issued shares of the Company to any person ("Third
Party")
or
wish to sell all or substantially all of the Assets to the Third Party,
the
Majority Shareholders shall have, subject to the terms of this clause 14
and its
compliance with the provisions of this clause 14, the option ("Drag
Along Option")
of
requiring all the other Shareholders ("Minority
Shareholders")
to:
(a)
transfer to the Third Party or as the Third Party directs, all of the Shares
held by the Minority Shareholders in accordance with this clause in which
case
it shall be entitled to transfer the Sale Shares to the Third Party without
compliance with clause 11.2; or
(b)
join in the sale of the Assets.
16
14.2
Substantial
Sale Notice
If
the
Majority Shareholders propose to sell the Sale Shares, or the Assets, as
the
case may be under this clause, the Majority Shareholders must give a notice
of
its intention to the Company and the Minority Shareholders with reasonable
particulars of the main commercial terms of the proposed sale including
the
proposed form of consideration ("Substantial
Sale Notice").
14.3
Right
of first refusal
Prior
to
the sale the subject of the Substantial Sale Notice proceeding, the Minority
Shareholders will have a first right of refusal to acquire all of the Sale
Shares or the Assets as the case may be at the price and on the terms agreed
to
by the third party. This right of refusal may be exercised by the Minority
Shareholders at any time up to 7 days after the date of the Substantial
Sale
Notice. It will be a condition of any such sale to the Minority
Shareholders that the Minority Shareholders will, with effect from the
date of
the sale, obtain the release of any and all guarantees given by the
Majority Shareholders in support of the Company or the Business.
14.4
Exercise
of Drag Along Option
If
the
Minority Shareholders have not exercised their right of first refusal in
accordance with clause 14.3, the Majority Shareholders may exercise the
Drag
Along Option:
(a)
within 60 days after the date of the Substantial Sale Notice;
(b)
by giving notice ("Drag
Along Notice")
to
that effect to the Minority Shareholders stating that the Minority Shareholders
are required to transfer their Shares or join in the sale of the Assets
accompanied by a copy of the latest version of any sale agreement to which
the
Minority Shareholders will be a party conforming with clause 14.5.
14.5
Agreement
to be signed
Any
agreement required to be signed by the Minority Shareholders must:
(a)
not impose obligations upon the Minority Shareholders more onerous than
the
Majority Shareholders;
(b)
not require joint and several obligations of the Minority Shareholders
and
Majority Shareholders, but instead their obligations shall be in proportion
to
their shareholding in the Company at the time; and
(c)
not include a restraint of trade or similar upon the activities of the
Minority Shareholders more onerous than under clause 15 of this
Deed.
17
14.6
Execution
of Agreement
At
any
time after the expiration of 14 days after giving the Drag Along Notice,
the
Majority Shareholders may sign an agreement to sell all the issued shares
of the
Company, or the Assets, as the case may be, to the Third Party providing
the
agreement complies with clause 14.3 and no material change has occurred
to the
latest version of the agreement provided under clause 14.4(b) of which
the
Minority Shareholders have not received 7 days prior notice.
14.7
Sale
of Shares
If
the
Drag Along Notice refers to the sale of all the issued shares of the
Company:
(a)
the Minority Shareholders are only obliged to sell their shares at the
same
price per share payable by the Third Party to the Majority Shareholders
in
respect of the Sale Shares and providing:
(i)
the Minority Shareholders receive the equivalent consideration which the
Majority Shareholders are to receive (but taking into account their respective
Shareholding) or cash only if the Minority Shareholders have elected to
receive
cash by notice in writing within 7 days after the date of the Drag Along
Notice;
and
(ii)
the Majority Shareholders do not receive any material additional benefit
not
offered to the Minority Shareholders other than under commercial arrangements
on
arms length terms.
(b)
the Majority Shareholders are empowered to sign the sale agreement on their
own
behalf and on behalf of the Minority Shareholders and the Minority Shareholders
are bound by the agreement in respect of their shares providing the agreement
is
consistent with the terms of this clause 14;
(c)
each Shareholder must immediately make available the certificates for its
shares
for delivery to the Third Party on completion and sign all documents required
to
complete the sale;
(d)
each Shareholder and the Company appoints the Board and each member of
the Board
severally its attorney to sign any documents and issue any replacement
share
certificates required to complete the sale if a Shareholder fails to comply
with
clause 14.6(c);
(e)
the sale consideration to be received by the Minority Shareholders for
their
issued shares must be paid or satisfied simultaneously with the transfer
of the
Minority Shareholders shares (subject to any adjustments or deferred
consideration equally applicable to the Majority Shareholders);
(f)
the Minority Shareholders shall in proportion to the percentage of the
shares
they hold in the Company at the time shall pay the Majority Shareholders
that
proportion of the reasonable costs and expenses of the sale and such costs
and
expenses shall be deducted from the sale consideration payable to the Minority
Shareholders.
14.8
Sale
of Assets
If
the
Drag Along Notice refers to the sale of the Assets:
(a)
the Minority Shareholders are bound by the decision on behalf of the Company
to
enter into the agreement, and the Majority Shareholders are empowered to
sign
the agreement on behalf of the Company; and
18
(b)
the Shareholders must, at the request of any Shareholder after the completion
of
the sale, pass a special resolution on short notice to wind up the Company
to
enable the distribution of the net proceeds of sale to the
Shareholders.
14.9
Irrevocable
A
Drag
Along Notice, once given, is irrevocable but both the notice and all obligations
under the Notice will lapse if for any reason the Majority Shareholders
do not
transfer the Sale Shares, or sell the Assets, as the case may be, to the
Third
Party or as the Third Party directs.
15.
RESTRAINT OF TRADE
15.1
Restraint
whilst a Shareholder
Subject
to clause 15.2 each Shareholder agrees for the benefit of the other Shareholders
that while the Shareholder (or a person or body corporate related to that
Shareholder) is a Shareholder, (except with the prior written consent of
the
other Shareholders) it shall not either directly or indirectly:
(a)
carry on, engage in or be concerned in a business the same as or similar
to the
Business conducted within Australia and New Zealand, whether on its own
account
or as a consultant or other contractor to or a partner, agent, employee,
shareholder or director of any other person;
(b)
provide financial or other assistance, to any person carrying on, engaged
in or
concerned with such business within Australia and New Zealand.
15.2
Exception
Nothing
in clause 15.1 or 15.3 will prevent a Shareholder from:
(a)
holding up to 20% of the voting shares in any public company listed on
the
Australian Stock Exchange Limited; or
(b)
continuing to conduct its existing business activities as conducted as
at the
Commencement Date.
15.3
Restraint
when ceasing to be a Shareholder
Upon
a
Shareholder transferring all its Shares, except where all the Shareholders
agree
otherwise, the following restrictions shall apply for a period of two years
from
the date of the transfer of the Shares:
(a)
that Shareholder shall not seek to solicit the services of, or offer employment
to, any person employed by the Company;
19
(b)
that Shareholder shall not solicit or attempt to solicit business or custom
from
any person who is then, or was at any time during the previous two years,
a
client or customer of the Company or with whom the Company has had dealings
during the previous two years or induce or try to induce any such person
to
withdraw custom from the Company.
16.
TERMINATION
The carrying on of the Business by the Company and the relationship between
the
Shareholders as detailed in this Deed shall terminate only upon the mutual
consent of the Shareholders
IN WHICH CASE
unless
determined otherwise by a shareholder holding not less than fifty (50)
per
centum of the issued shares in the Company, the Company shall be
wound-up.
17.
SETTLEMENT OF DISPUTES AND DIFFERENCES
17.1
Resolution
Any
dispute or difference arising between any of the Shareholders or between
the
Company and any Shareholders either during or after the termination,
abandonment, or breach of this Deed as to its construction or any matter
or
thing of whatsoever nature arising under this Deed or in connection with
it
shall be attempted to be resolved by mediation.
17.2
Mediation
If
anyone
wishes to take any dispute or difference to mediation, it shall give to
the
others written notice of the dispute or difference, and at the expiration
of
(seven) 7 days from receipt of that notice, the parties shall meet to appoint
a
mediator and set the guidelines of the mediation. If the parties cannot
agree on the mediator, the mediator shall be appointed by the President
for the
time being of the Victorian Chapter of the Institute of Arbitrators and
Mediators Australia ("IAMA")
and
the mediation shall be conducted in accordance with and subject to IAMA
Rules. The costs of the mediator shall be borne by parties to the
mediation in equal shares and proportions.
17.3
Continuing
obligations
The
obligations of the parties under this Deed shall not cease or be suspended
by
reason of commencement of any mediation, arbitration or litigation and
each
party agrees to continue to perform the terms of this Deed notwithstanding
the
existence of a dispute or difference.
18.
ASSURANCES
18.1
Give
effect to Deed
Each
party shall exercise all powers as are available, do all acts and things
and
sign, execute and deliver all documents and instruments necessary or reasonably
required to give effect to this Deed.
18.2
Warranty
Each
party warrants for the benefit of the others that it is empowered to enter
this
Deed and all instruments required or contemplated by this Deed and to give
effect to each and every of its obligations undertaken or to be undertaken
under
this Deed or in or pursuant to those instruments.
20
19.
GENERAL
19.1
Binding effect
The
obligations, liabilities, rights and benefits of each party are binding
on and
enure to each and their respective legal personal representatives, successors
in
title, transferees and permitted assigns however
those
obligations, liabilities, rights and benefits cannot be sold, assigned,
transferred or otherwise dealt with or disposed of by anyone other than
in
accordance with the terms and conditions of this Deed.
19.2
Costs
Each
Party shall pay its own fees and expenses incidental to the negotiation,
preparation and execution of this Deed, including the fees and disbursements
of
its lawyers and accountants.
19.3
Headings
The
headings are not part of the agreement of the parties and are irrelevant
to
construction of this Deed.
19.4
Amendments
This
Deed
may not be amended, modified or supplemented except by a written instrument
executed by Persons duly authorised on behalf of the Parties.
19.5
Waiver
No
waiver
by any Party of any default in the strict and literal performance of or
compliance with any provision, condition or requirement herein shall be
deemed
to be a waiver of strict and literal performance of and compliance with
any
other provision, condition or requirement herein nor to be a waiver of
or in any
manner release any Party from strict compliance with any provision, condition
or
requirement in the future nor shall any delay or omission of any Party
to
exercise any right hereunder in any manner impair the exercise of any such
right
accruing to it thereafter.
19.6
Notices
Any
notice or demand required to be given under this Deed shall be sufficiently
served if in writing and sent by prepaid postage, hand or facsimile, posted,
delivered or sent as the case may be to the address appearing in Item
1.
A
notice
or communication is deemed served if sent by:
(a)
prepaid postage - on the third day following the date of posting;
(b)
facsimile transmission and sent during normal office hours on a Business
Day.
All
other
means of service allowed by law are permitted.
21
19.7
Counterparts
This
Deed
may be executed in two or more counterparts, each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument.
19.8
Severance
If
any
provision of this Deed or any part is held or declared to be a violation
of
public policy, illegal, unenforceable, void, voidable, or invalid at law
or in
equity, or to be in breach of an Act of Parliament, a rule, regulation,
ordinance or by-law, that provision or part shall be severable and of no
force
or effect and be deemed omitted from this Deed without affecting the validity
of
the remaining provisions and parts which other provisions and parts shall
remain
in full force and effect.
19.9
No
assignment independent of sale of Shares
If
a
Shareholder transfers all of its Shares it must also assign or transfer
its
interest in, or its rights or obligations under, this Deed to the transferee
of
the Shares. A Shareholder has no right to assign or transfer its interest
in, or its rights or obligations under, this Deed independently of the
sale of
its Shares.
19.10
Deed
prevails
If
there
is any inconsistency between this Deed and the Constitution, the terms
of this
Deed prevail and each party shall use all its powers and rights to amend
the
inconsistent document or documents to accord with the terms of this Deed
and
shall procure that the Board of the Company vote in favour of all resolutions
required to facilitate the amendment.
19.11
Governing
law
This
Deed
shall be governed by and construed in accordance with the laws for the
time
being in force in Victoria and the parties irrevocably submit to the
jurisdiction of the Courts of Victoria and Courts having appellate jurisdiction
from the Courts of Victoria.
20.
ADDITIONAL PROVISIONS
The Special Conditions shall be read and construed as if part of this
Deed. If there is any inconsistency between the Special Conditions
and any other term of this Deed, the Special Conditions shall prevail to
the
extent of the inconsistency.
EXECUTED
AS A DEED
SIGNED
by
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
)
In
the
presence of:
22
|
EXECUTED
by
FUTURE
NOW INC in
accordance
with section 127(1) of the
Corporations
Act:
|
)
)
)
|
|
|
|
|
|
|
|
|
|
|
Director/Chief
Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
Name
(please print)
|
|
Name
(please print)
|
|
EXECUTED
for and on behalf of ALKEMI
INTERNATIONAL
PTY LTD by
persons
authorised
to do so:
|
)
)
)
|
|
|
|
|
|
|
____________________________________
|
|
____________________________________S
|
|
Signature
of authorised person
|
|
Signature
of authorised person
|
|
|
|
|
|
|
|
|
|
Name
& position of signatory (please print)
|
|
Name
& position of signatory (please
print)
|
23
SCHEDULE
1 - DETAILS
Item
1: Addresses:
(clause
19.6)
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
FUTURE
NOW INC
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇
Facsimile:
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
ALKEMI
INTERNATIONAL PTY LTD
Address:
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Item
2: Principal
(clause
1.1)
|
|
Name
of Person(s)
|
Shareholder
|
|
|
|
|
|
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
|
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
FutureNow
|
Item
3: Special
Conditions
(clause
1.1)
SC.1
The
use of the ‘Alkemi International’ name
If
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ceases to hold in aggregate at least 50% of all shares issued in
the
capital of the Company, the Company shall upon the earlier of:
(a)
the date six months after such cessation; or
(b)
the date on which a third party acquires Shares whether by allotment or
by
transfer;
change
its name to a name which does not include "Alkemi".
24
SCHEDULE
2 - SHARE TRANSFER
1.1
Procedure
Upon:
(A)
a Transferring Shareholder issuing a Transfer Notice to the Company in
accordance with clause 11.2, the Company shall notify the other Shareholders
(the other Shareholders being referred to in this clause as the"Acquiring
Shareholders")
of
that fact and the number of the Shares held by the Transferring Shareholder;
or
(B)
the Company becoming aware of the occurrence of an Event, the Company shall
notify the Transferring Shareholder and the other Shareholders (the other
Shareholders being referred to in this clause as the"Acquiring
Shareholders")
of
that fact and the number of the Shares held by the Transferring Shareholder
which notice shall constitute a Transfer Notice deemed given by the Transferring
Shareholder on the day the Company gives the notice; or
and thereupon the Acquiring Shareholders shall have the option to acquire
the
Shares of the Transferring Shareholder ("Sale
Shares")
on the
following terms and conditions:
(a)
Company
as agent
the Company shall be deemed appointed agent of the Transferring Shareholder
for
the purposes of the transfer of the Sale Shares and
the
Transferring Shareholder shall be deemed to have irrevocably appointed
the
Acquiring Shareholders jointly and severally to be its attorney to prepare,
complete and execute all forms of transfer and removal and other documents
required to properly effect its obligations pursuant these
provisions.
(b)
Option
Period
each of the Acquiring Shareholders shall have an option to acquire the
Sale
Shares exercisable by delivery of an Option Notice to the Company (as agent
for
the Transferring Shareholder ) within 30 days of the Transfer Notice
("Option
Period").
(c)
Pro
rata entitlement
unless otherwise agreed by the Acquiring Shareholders, where there is more
than
one who has delivered an Option Notice each shall only be permitted to
exercise
its option in respect of the Sale Shares in the ratio that its Shareholding,
at
the time of the delivery of the Transfer Notice, bears to the aggregate
Shareholdings of all Acquiring Shareholders who have delivered an Option
Notice.
(d)
Obligation
to acquire all
where there is only one Acquiring Shareholder who has delivered an Option
Notice
that Acquiring Shareholder shall be obliged to exercise its option in respect
to
all Sale Shares.
(e)
Notification
of purchasers
within
seven days of the conclusion of the Option Period, the Company shall notify
in
writing the Transferring Shareholder of those of the Acquiring Shareholders
who
have given the Company an Option Notice.
(f)
Determination
of purchase price
upon delivery of the notice referred to in clause 1.1(e) of this Schedule,
the
Transferring Shareholder and those of the Acquiring Shareholders who have
delivered an Option Notice shall agree the purchase price to be paid for
the
Sale Shares and failing agreement within seven days, at a price which the
Valuer
certifies in writing to be in the Valuer’s opinion the fair value of the Sale
Shares based on the fair value of the Company as a going concern.
25
The
Valuer must value the Company as an undivided whole and then calculate
the value
of the Sale Shares as that proportion of the value the Company which is
the
number of Sale Shares bears to the total number of issued Shares, and must
not
have regard to whether the Sale Shares to be valued constitute a controlling
interest or a minority interest.
The
Valuer must determine a single value and not a range of values and must
carry
out the valuation with proper care and professional responsibility.
The
Valuer, in certifying the value of Sale Shares acts as an expert and not
as an
arbitrator and no arbitration legislation applies.
The
Company must arrange for the Valuer's certificate of the value of the Sale
Shares to be obtained within 30 days after the Transfer Notice is deemed
given
and to be notified promptly to the Transferring Shareholder and the Acquiring
Shareholders.
The
Valuer shall act as an expert and not as an arbitrator and the determination
of
the purchase price made pursuant to this clause shall be final and binding
on
the Transferring Shareholder and the Acquiring Shareholders who have given
an
Option Notice. The fees of the Valuer shall be paid by the Transferring
Shareholder and in default of payment shall be a debt due to the
Company.
(g)
Right
to withdraw
each Acquiring Shareholder who has given an Option Notice may within seven
days
of receipt of the valuation from the Company withdraw its Option Notice
by
written notice given to the Company ("withdrawing
purchaser"),
in
which case:
(i)
the withdrawing purchaser shall have no obligation to proceed with its
purchase;
(ii)
the Company shall notify the Transferring Shareholder and the remaining
purchasers of the withdrawal;
(iii)
each remaining purchaser may within seven days of receipt of notification
from
the Company of the withdrawal, withdraw its Option Notice by written notice
given to the Company in which case that purchaser shall have no obligation
to
proceed with its purchase and
upon the
conclusion of the seven day period, each purchaser who has not withdrawn
its
Option Notice in the prescribed manner shall be deem to have accepted to
purchase (in proportion to their respective holdings of the Shares) additional
Shares equivalent to those that were to be purchased by the purchasers
who
withdrew their Option Notices at the valuation established in accordance
with
clause 1.1(f) of this Schedule.
(h)
Notification
of purchasers
within
seven days of conclusion of time period specified in clause 1.1(g) of this
Schedule, the Company shall notify the Transferring Shareholder of the
purchasers of the Sale Shares in which case ("Purchaser
Notice"),
subject to clause 2 of this Schedule 2:
(i)
within a further period of 21 days those of the Acquiring Shareholders
bound to
purchase the Sale Shares shall pay the purchase price to the Transferring
Shareholder; and
26
(ii)
the Transferring Shareholder shall be bound upon payment of the purchase
price
determined in accordance with this Schedule to transfer the appropriate
Sale
Shares to the relevant purchaser.
(i)
Failure
to transfer
if
the
Transferring Shareholder fails to transfer any of the Sale Shares, the
Company
shall receive the purchase money, enter the name of the purchaser in the
register of members, cancel and issue certificates and hold the purchase
money
for the Transferring Shareholder. The receipt by the Company for the
purchase money shall be a good discharge to the purchaser and after entry
in the register of members the validity of the registration of the transfer
shall not be questioned by any person.
1.2
Resignation
Upon
payment of the total purchase price for the whole of the Sale Shares, the
Transferring Shareholder shall deliver to the Company resignations of the
Directors representing it on the Board, and any employees holding office
with
the Company who are representatives of the Transferring
Shareholder.
1.3
Common
law rights remain
Where
a
Shareholder does not exercise its option to require the transfer of the
Transferring Shareholder's Shares pursuant to the preceding sub-clauses,
then
nothing herein shall restrict the rights of that Shareholder to exercise
its
common law or statutory rights against the Transferring Shareholder in
respect
of any Event.
1.4
Further
Assurances
Each
Shareholder shall do all acts, matters and things and execute documents
in order
to give effect to the right of a Acquiring Shareholder to acquire the Sale
Shares.
1.5
Option
of Transferring Shareholder
Where
a
Transfer Notice has been delivered to the Company pursuant to clause 1.1(A)
of
this Schedule and no Acquiring Shareholder delivers an Option Notice (in
the
time stipulated in clause 1.1(b) of this Schedule) or should the Sale Shares
not
be acquired by the other Shareholders, the Acquiring Shareholders shall
be
deemed to have collectively elected to terminate this Deed and resolved
to
windup the Company ("Deemed
Event")
in
which case the Transferring Shareholder shall have the option to acquire
the
Acquiring Shareholders' Shares and the provisions of clauses 1.1 and 1.2
of this
Schedule shall apply mutatis mutandis to such option except that:
(a)
the Transferring Shareholder shall be required to deliver the Option Notice
within 14 days of date of the Deemed Event; and
(b)
if the purchase price of the Sale Shares was originally determined by a
Valuer
pursuant to clause 1.1(f) of this Schedule, the value of the Acquiring
Shareholders' Shares shall be determined by that same Valuer, if available
to do
so.
27
Should the Transferring Shareholder not exercise its option to acquire
the
Acquiring Shareholder's Shares, the Transferring Shareholder shall be entitled
to transfer its Shares to any person approved by the Acquiring
Shareholders. If no transferee is approved by the Acquiring Shareholders
within 60 days of delivery of the Transfer Notice the Shareholders shall
be
deemed to have unanimously resolved to terminate this Deed and windup the
Company.
28
SCHEDULE
3
DEED
OF ACCESSION
Date:
PARTIES:
#
[INSERT
NAMES AND ADDRESSES OF THE SHAREHOLDERS AS AT DATE OF DEED OF
ACCSESSION]
(the
"Current
Shareholders")
#
INSERT
NAME AND ADDRESS OF COMPANY]
[ ]
having its registered office at #
(the
"Incoming
Shareholder")]
BACKGROUND
A.
The Current Shareholders are parties to a Shareholders Deed dated # (the
"Deed").
B.
Under the Deed the Incoming Shareholder is required to execute this deed
prior
to its name being entered in the register of Shareholders.
BY
THIS DEED
the
parties agree as follows:
1.
With effect from # (the "Effective
Date")
the
Incoming Shareholder:
(a)
becomes a party to the Deed as if it had been named as a party to the Deed
and
had executed it; and
(b)
must observe and perform all of the obligations of a Shareholder contained
in
the Deed to be performed and observed by a Shareholder and will be bound
by the
terms of the Deed.
2.
The Current Shareholders agree with the Incoming Shareholder that each
of them
will observe and perform their respective obligations under the Deed and
will be
bound by the terms of the Deed.
EXECUTED
AS A DEED
by:
SHAREHOLDERS
DEED
BETWEEN
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
FUTURE
NOW INC
AND
ALKEMI
INTERNATIONAL PTY LTD
LARDNERS
SOLICITORS
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
DX
▇▇▇▇▇ ▇▇▇▇▇ ELIZA
Tel:
▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax:
▇▇ ▇ ▇▇▇▇ ▇▇▇▇
E-mail:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇