Exhibit 4.10
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ COLLICOAT
AND
▇▇▇▇ ▇▇▇▇▇ COLLICOAT
AND
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
AND
BOLLE INC
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SHARE SALE
AGREEMENT
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TABLE OF CONTENTS
PAGE
PART 1. DEFINITIONS AND INTERPRETATION................................2
1.1. Definitions....................................................2
1.2. Interpretation................................................10
1.3. Knowledge and Awareness.......................................11
1.4. Accounting Standards..........................................11
PART 2. CONDITIONS PRECEDENT TO AGREEMENT............................12
2.1. Conditions Precedent..........................................12
2.2. Best endeavours...............................................12
PART 3. AGREEMENT TO SELL............................................12
3.1. Sale of Shares................................................12
3.2. Associated rights.............................................12
PART 4. PURCHASE PRICE...............................................13
4.1. Amount........................................................13
4.2. Payment and issuing of the Bolle Stock........................13
4.3. Interest......................................................13
4.4. Method of Payment.............................................13
PART 5. PERIOD BEFORE COMPLETION.....................................14
5.1. Business in the ordinary course...............................14
5.2. Access........................................................15
5.3. Bank Authorities..............................................15
5.4. Prompt disclosure of breach...................................15
5.5. Insurance.....................................................15
5.6. Registration Statement........................................16
PART 6. NO ASSIGNMENT................................................16
6.1. No Assignment.................................................16
PART 7. COMPLETION...................................................16
7.1. Date for Completion...........................................16
7.2. Delivery of documents.........................................16
7.3. Board meetings................................................18
7.4. Buyer's obligations at Completion.............................18
7.5. Interdependency...............................................19
7.6. Obligations following Completion..............................19
7.7. Certification by Buyer and Sellers............................19
7.8. Exercise of Rights of Registered Shareholder..................19
7.9. Indemnity.....................................................20
7.10. Further Completion............................................20
7.11. Acknowledgment................................................20
PART 8. WARRANTIES...................................................20
8.1. Giving of Warranties..........................................20
8.2. Acknowledgment................................................20
8.3. Reliance......................................................21
8.4. Limitation on Warranties......................................22
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8.5. Qualification of Warranties...................................22
8.6. Buyer's Warranties............................................22
8.7. Buyer and Sellers' Warranty...................................23
PART 9. RELEASE OF GUARANTEES AND INDEMNIFICATION....................23
9.1. Release of Guarantees.........................................23
9.2. Indemnification...............................................23
PART 10. NON COMPETITION.............................................23
10.1. Undertakings..................................................23
10.2. Effect on value of the Shares.................................26
10.3. Legal advice..................................................26
10.4. Injunction....................................................26
10.5. Separate undertakings.........................................26
10.6. Survival......................................................26
10.7. Sellers' obligations several not joint........................27
PART 11. ANNOUNCEMENTS...............................................27
11.1. Legal requirements............................................27
11.2. Disclosure to officers and professional advisers..............27
11.3. Further publicity.............................................27
11.4. Public Announcement...........................................27
PART 12. TAXATION INDEMNITY..........................................27
12.1. Tax Indemnity.................................................27
12.2. Notification..................................................28
12.3. Objections and Appeals........................................28
12.4. Assistance and cooperation....................................29
12.5. Successful Objection, Reference or Appeal or refund...........29
12.6. Bolle Sunglasses Ltd indemnity................................30
PART 13. ENVIRONMENTAL INDEMNITY.....................................30
13.1. Buyer's Environmental Indemnity...............................30
13.2. Seller's clean-up rights......................................30
13.3. Exercise of Seller's clean-up rights..........................31
13.4. Costs of appeal...............................................31
13.5. Notification of Clean-Up Notice...............................31
13.6. Avoidance of breach of Environmental Law......................32
PART 14. ONGOING INVESTMENT..........................................32
14.1. Distribution of annual profits................................32
14.2. Call Option...................................................32
14.3. Exercise of Call Option.......................................32
14.4. Put Option....................................................32
14.5. Exercise of Put Option........................................33
14.6. Terms applicable to either option.............................33
14.7. Option Completion.............................................33
14.8. Documents to be delivered.....................................33
14.9. Payment of the Option Price...................................33
14.10. Maintaining Net Tangible Assets...............................33
14.11. Renewal of the Licence........................................34
14.12. Sale of Bolle Asia Ltd........................................34
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PART 15. MISCELLANEOUS...............................................34
15.1. Costs and Expenses............................................34
15.2. Notices.......................................................34
15.3. Governing law and jurisdiction................................35
15.4. Waivers.......................................................35
15.5. Variation.....................................................36
15.6. Cumulative rights.............................................36
15.7. Non-merger and survival of Warranties.........................36
15.8. Further assurances............................................36
15.9. Entire agreement..............................................36
15.10. Attorneys.....................................................36
15.11. Counterparts..................................................36
15.12. Severance.....................................................37
SCHEDULE 1 - (WARRANTIES).............................................39
1. THE TRUST........................................................39
2. CORPORATE........................................................39
2.1 Issued Share Capital and Assets..................................39
2.2 Accounts.........................................................40
2.3 Books and Records................................................40
2.4 Returns etc......................................................41
2.5 Dividends........................................................41
2.6 Memorandum and Articles of Association...........................41
3. CONTRACTS & RELATED MATTERS......................................41
3.1 Contracts........................................................41
3.2 Powers of Attorney...............................................43
3.3 Offers, Tenders etc..............................................43
3.4 Illegal or Void Contracts........................................43
3.5 Defaults under Contracts/Liable to Termination...................43
4. ASSETS AND RENTAL ASSETS.........................................44
4.1 Stocks...........................................................44
4.2 Fixed Assets.....................................................44
4.3 Use of Assets Generally..........................................44
4.4 All Assets Disclosed.............................................45
4.5 All Assets Necessary.............................................45
4.6 Rental Contracts.................................................45
5. SECURITIES.......................................................45
5.1 Mortgages etc....................................................45
5.2 Third Party Interests............................................46
5.3 No Guarantees....................................................46
5.4 No Third Party Securities........................................46
6. TRADING AND OPERATIONAL MATTERS..................................46
6.1 claims in relation to Services Provided..........................46
6.2 Product and Service Claims.......................................46
6.3 Official Investigations..........................................46
6.4 Criminal Offenses etc............................................46
6.5 Authorisations...................................................47
7. TAXATION.........................................................47
7.1 Full Disclosure..................................................47
7.2 No Tax Proceedings...............................................47
7.3 Agreements for Extension of Time.................................48
7.4 All Tax Paid.....................................................48
7.5 Adequate provision in Accounts for Tax...........................48
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7.6 Tax Since Accounts Date..........................................48
7.7 Franking.........................................................48
7.8 Undertakings or Agreements.......................................49
7.9 Stamp Duty.......................................................49
7.10 Relief from Stamp Duty...........................................49
8. INSOLVENCY EVENTS................................................49
8.1 Liquidation/Winding Up...........................................49
8.2 Execution........................................................49
8.3 Insolvency.......................................................49
8.4 Schemes of Arrangement...........................................50
8.5 Section 459E Notices.............................................50
8.6 Receivers/Managers/etc...........................................50
8.7 Striking Off.....................................................50
9. LITIGATION.......................................................50
9.1 Ongoing Proceedings etc..........................................50
9.2 Proceedings Pending or Threatened................................50
9.3 Unsatisfied Judgements...........................................50
10. ACCOUNTS.........................................................51
10.1 Prepared in accordance with the Accounting Standards.............51
10.2 Consistent Basis.................................................51
10.3 True and Accurate................................................51
10.4 No Material Omission.............................................51
10.5 No Liabilities not required to be referred to....................51
10.6 Receivables......................................................51
10.7 Outstanding Notes................................................51
10.8 Insurance Claims.................................................51
11. INSURANCE........................................................52
12. INTELLECTUAL PROPERTY RIGHTS.....................................52
12.1 Intellectual Property............................................52
12.2 Infringement.....................................................52
12.3 Ownership of intellectual property...............................52
13. PERSONNEL........................................................52
13.1 Disclosure of Offices etc........................................52
13.2 Employees Generally..............................................53
13.3 Compliance With Laws.............................................53
13.4 Material Employment Terms........................................53
13.5 Consultants etc..................................................54
13.6 Superannuation and Similar Schemes...............................54
13.7 Union Agreements.................................................54
13.8 Awards...........................................................54
14. PROPERTIES.......................................................54
14.1 Occupation.......................................................54
14.2 No Breach........................................................55
14.3 Notices..........................................................55
14.4 Environmental Liability..........................................55
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SCHEDULE 2 - INTELLECTUAL PROPERTY & BUSINESS NAMES
SCHEDULE 3 - OFFICERS AND EMPLOYEES
SCHEDULE 4 - RENTAL CONTRACTS
SCHEDULE 5 - FORM OF RESIGNATION
SCHEDULE 6 - SHARES
SCHEDULE 7 - CONTRACT REQUIRING 12 MONTHS NOTICE OF TERMINATION
SCHEDULE 8 - CONTRACTS WITH DIRECTORS ETC
SCHEDULE 9 - INSURED ASSETS
SCHEDULE 10 - RELEVANT SCHEMES
SCHEDULE 11 - IDENTIFIED STOCK
ANNEXURE 1. AUDITED ACCOUNTS OF ▇▇▇▇ ▇▇▇▇ OPTICAL PTY LTD. AND THE ▇▇▇▇ ▇▇▇▇
COMPANIES FOR THE PERIOD ENDING ON THE ACCOUNTS DATE.
ANNEXURE 2. UNAUDITED ACCOUNTS OF ▇▇▇▇ ▇▇▇▇ OPTICAL PTY. LTD. AND THE ▇▇▇▇
▇▇▇▇ COMPANIES ENDING ON THE ACCOUNTS DATE.
ANNEXURE 3. EMPLOYMENT AGREEMENTS.
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THIS AGREEMENT is made on 1998.
PARTIES
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ COLLICOAT ("▇▇ ▇▇▇▇▇▇▇▇▇")
of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, in the State of Queensland Australia in his
capacity as trustee of the ▇▇▇▇ ▇▇▇▇ Trust.
▇▇▇▇ ▇▇▇▇▇ COLLICOAT ("▇▇ ▇▇▇▇▇▇▇▇▇")
of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, in the State of Victoria Australia in
his capacity as trustee of the ▇▇▇▇ ▇▇▇▇ Trust.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇ ▇▇▇▇▇▇▇")
of ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, in the State of Victoria Australia in
his capacity as trustee of the ▇▇▇▇ ▇▇▇▇ Trust.
and
BOLLE INC
of 555 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Avenue, Rye, in the State of New York United States of
America ("BUYER")
RECITALS:
A. ▇▇▇▇ ▇▇▇▇ conducts business as the sole distributor and seller of the
products of Establissements Bolle, a "Societe en nom Collectif",
("Bolle") throughout Australia, New Zealand, Fiji, Vanuatu, Papua New
Guinea and Indonesia for five years from 12 January, 1996 pursuant to
the Licence.
B. ▇▇▇▇ ▇▇▇▇ owns all of the issued shares in ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd,
Bolle Australia Pty Ltd, Bolle (N.Z.) Limited (a company incorporated
in New Zealand) and Bolle Asia Ltd, which conducts the Business in
Hong Kong, the People's Republic of China, Taiwan, Singapore,
Malaysia, the Philippines, Thailand, Vietnam, Cambodia and Macau
pursuant to the Licence, and 49 per cent. of the issued shares in
Bolle Sunglasses Ltd (a company incorporated in the United Kingdom)
which conducts the Business in the United Kingdom and Ireland pursuant
to the Licence.
C. ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ jointly hold all the issued
share capital of ▇▇▇▇ ▇▇▇▇ on trust for the ▇▇▇▇ ▇▇▇▇ Trust.
D. ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ have been directed by the
beneficiaries of the ▇▇▇▇ ▇▇▇▇ Trust to sell 75 per cent. of ▇▇▇▇ ▇▇▇▇
Trust's shares in ▇▇▇▇ ▇▇▇▇.
E. Bolle Inc has acquired the rights of Bolle under the Licence and
wishes to buy the Shares and has agreed to put and call options over
the Remaining Shares.
F. The parties have agreed upon the terms upon which the sale of the
Shares and the granting of the Options will occur.
THE PARTIES AGREE as follows:
PART 1.
DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
In this agreement:
"ACCOUNTS" means the audited accounts of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies
for the period ending on the Accounts Date as set out in annexure 1.
"ACCOUNTING STANDARDS" means the accounting standards and practices determined
under CLAUSE 1.4.
"ACCOUNTS DATE" means 31 December, 1997.
"ADJUSTED FINANCIAL STATEMENTS" means the audited accounts of ▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd adjusted to remove such income or accounting charges
including any management fees or charges or the like, costs, expenses,
liabilities or other matters beneficially or adversely affecting the
profitability of either company as were not ordinarily included in the
financial statements of those companies or incurred in the ordinary course of
ordinary business of those companies prior to Completion Date except as may be
agreed from time to time in writing by ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ and the Buyer.
"ADJUSTED ACCOUNTS" means the unaudited adjusted balance sheet of ▇▇▇▇ ▇▇▇▇ and
the ▇▇▇▇ ▇▇▇▇ Companies ending on the Accounts Date as set out in annexure 2.
"ADJUSTED PRICE" means the trading price of the Buyer's common stock on the
Stock Exchange adjusted to remove the effect of:
(a) any stock dividends;
(b) distributions or issues, including rights issues and options in or
exerciseable into, shares of the Buyer's capital stock whether in
common stock or other classes of stock;
(c) the subdivision of the capital or stock of the Buyer;
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(d) any combination of the stock of the Buyer into a smaller number of
shares;
(e) the issue of common stock by reclassification of other capital stock
of the Buyer;
since Completion Date.
"AUTHORISATION" includes any authorisation, approval, consent, licence,
payment, franchise, permission, filing, registration, resolution, direction,
declaration and exemption.
"BANK" means St ▇▇▇▇▇▇ Partnership Banking Limited and St ▇▇▇▇▇▇ Partnership
Finance Limited.
"▇▇▇▇ ▇▇▇▇" means ▇▇▇▇ ▇▇▇▇ Optical Pty Ltd (ACN ▇▇▇ ▇▇▇ ▇▇▇)
"▇▇▇▇ ▇▇▇▇ COMPANIES" means ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd (▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇), ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Pty Ltd (ACN ▇▇▇ ▇▇▇ ▇▇▇), Bolle (N.Z.) Limited (AK/840758) (a
company incorporated in New Zealand), Bolle Asia Ltd (389404) (a company
incorporated in Hong Kong) and Bolle Sunglasses Ltd (a company incorporated in
the United Kingdom).
"▇▇▇▇ ▇▇▇▇ GROUP" means ▇▇▇▇ ▇▇▇▇ and each of the ▇▇▇▇ ▇▇▇▇ Companies as set
out in Schedule 6.
"▇▇▇▇ ▇▇▇▇ SHARES" means the issued shares of ▇▇▇▇ ▇▇▇▇.
"BOLLE STOCK" means the Initial Bolle Stock and the Further Bolle Stock.
"BUSINESS" means the business conducted by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies including business conducted pursuant to the Licence as at Completion
Date.
"BUSINESS DAY" means a day on which banks are open for business in Melbourne,
excluding a Saturday or a Sunday or a public holiday.
"BUSINESS NAMES" means all the business names used in the conduct of the
Business as listed in Part A of Schedule 2.
"CALCULATION PERIOD" means the 20 consecutive trading days of the Buyer's
common stock on the Stock Exchange over which it has the highest average
closing price during the 12 months after Completion Date.
"CALL OPTION" means the call option referred to in CLAUSE 14.2 AND 14.3.
"CLEAN-UP NOTICE" means any notice, direction, order or other claim served by
any Government Agency in connection with any Environmental Law which requires
the taking of Prescribed
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Remedial Action in respect of the presence of any Contaminant located in, on or
under, or emission or discharge of any Contaminant from any of the Properties.
"COMMISSIONER" means the Commissioner of Taxation.
"COMPLETION" means completion of the sale and purchase of the Shares under PART
7 except CLAUSE 7.10.
"COMPLETION DATE" means the earlier of date 3 elapsed Business Days after the
registration of the Initial Bolle Stock under the U.S. Securities ▇▇▇ ▇▇▇▇ or
30 June, 1998 unless the Sellers elect in writing to extend the time for
Completion after 30 June, 1998.
"CONFIDENTIAL INFORMATION" means all know how, trade secrets, ideas, concepts,
technical and operational information and other information which, by its
nature or by circumstances of its disclosure, is or could reasonably be
expected to be regarded as confidential to the Sellers in respect of the
Business or to any third party with whose consent or approval the Sellers use
that confidential information, but excludes information that has come into the
public domain for any reason whatever other than by reason of any breach of any
obligation of confidentiality by the Sellers.
"CONTAMINANT" means a solid, liquid, gas, odour, heat, sound, vibration,
radiation or substance which makes or may make the Properties or the
surrounding environment:
(a) unsafe or unfit for human habitation or occupation by persons or
animals;
(b) degraded in its capacity to support plant life;
(c) otherwise environmentally degraded;
(d) not comply with any Environmental Law.
"CONTRACTS" means all agreements to which ▇▇▇▇ ▇▇▇▇ is a party or by which it
may be bound.
"CONTROLLER" has the same meaning given to that term in the Corporations Law.
"DIVIDEND" means not less than 20 per cent. of the annual profit of ▇▇▇▇ ▇▇▇▇
and ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd as calculated on the basis of the Adjusted Financial
Statements.
"DOLLARS" "A$" and "$" means the lawful currency of the Commonwealth of
Australia.
"DUTY" means any stamp, transaction or registration duty or similar charge
imposed by any governmental agency and includes,
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but is not limited to, any interest, fine, penalty, charge or other amount
imposed in respect of the above, but excludes any Tax.
"EMPLOYEES" means the employees of the Business listed in Schedule 3.
"EMPLOYMENT AGREEMENTS" means the agreements comprised in annexure 3.
"ENVIRONMENTAL LAW" means any law, whether statute or common law, concerning
environmental matters, and includes but is not limited to law concerning land
use, development, pollution, waste disposal, toxic and hazardous substances,
conservation of natural or cultural resources and resource allocation including
any law relating to exploration for or development of any natural resource.
"ENVIRONMENTAL LIABILITY" means any obligation, expense, penalty or fine under
any Environmental Law which would or could be imposed upon the ▇▇▇▇ ▇▇▇▇ Group,
the Buyer or any occupier of the Properties as a result of activities carried
on during the ownership or occupation of the Properties by the ▇▇▇▇ ▇▇▇▇ Group
up to Completion Date.
"EXCHANGE RATE" means the average of the buy and sell rate of exchange of
United States dollars into Australian dollars as published by the Bank on the
Further Completion Date.
"EXERCISE DATE" means the date upon which the notice under CLAUSE 14.2 or 14.4
is given, whichever occurs first.
"FURTHER BOLLE STOCK" means such, if any, further registered shares of the
Buyer's common stock as needs to be issued to the Sellers in addition to the
Initial Bolle Stock to give the Bolle Stock a value of A$3.5 million as at
Further Completion Date calculated by reference to the Trading Price and the
Exchange Rate.
"FURTHER COMPLETION" means the completion of the issuing of the Further Bolle
Stock in CLAUSE 7.10.
"FURTHER COMPLETION DATE" means the date that falls 12 months after Completion
Date.
"FUTURE MAINTAINABLE OPERATING PROFITS" means the future maintainable operating
profits of ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd, being profits before interest,
tax and amortisation of goodwill, as calculated based on the Adjusted Financial
Statements on the basis that the Licence continues for the period for which the
said future maintainable operating profits are calculated.
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"GOVERNMENTAL AGENCY" includes any government, whether federal, state,
territorial or local, and any minister, department, office, commission,
delegate, instrumentality, agency, board, authority or organ thereof, whether
statutory or otherwise.
"INITIAL BOLLE STOCK" means 248,387 registered shares of the Buyer's common
stock the subject of the Registration Statement.
"INDEMNITY" means the indemnity described in CLAUSE 9.2.
"INTELLECTUAL PROPERTY RIGHTS" means patents, registered trade marks, and
registered designs (and circuit layouts).
"INTELLECTUAL PROPERTY" means the Intellectual Property Rights of ▇▇▇▇ ▇▇▇▇ or
the ▇▇▇▇ ▇▇▇▇ Companies listed in Schedule 2.
"ISSUE PRICE" means the issue price of $US 5.25 per share of the Buyer's common
stock in the private placement of $US 7 million by the Buyer in May, 1998.
"LICENCE" means the exclusive licence hold by ▇▇▇▇ ▇▇▇▇ to distribute the
products of Bolle for five years from 12 January, 1996 throughout Australia,
New Zealand, Fiji, Vanuatu, Papua New Guinea, Indonesia, Hong Kong, the
People's Republic of China, Taiwan, Singapore, Malaysia, the Philippines,
Thailand, Vietnam, Cambodia, Macau, United Kingdom and Ireland together with an
option for a further five years subject to the agreement of both licensor and
licencee which the Buyer hereby accepts and acknowledges.
"MELBOURNE PROPERTY" means the property situated at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ being the land comprised in Certificate of Title
Volume 9859 Folio 649.
"MONTHLY FINANCIAL STATEMENTS" means monthly management accounts of ▇▇▇▇ ▇▇▇▇
produced in accordance with past practice.
"MORTGAGE DEBENTURE" means the instrument dated 30 June, 1994 being a mortgage
debentures created and issued by ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd in favour
of the Bank and lodged at the Australian Securities Commission and registered
as charge number 449272 and 449270 respectively.
"OFFICERS" means the directors and secretaries of ▇▇▇▇ ▇▇▇▇.
"OPTION" means the Call Option granted under CLAUSE 14.2 and the Put Option
granted under CLAUSE 14.4 or either of them.
"OPTION COMPLETION" means completion of the exercise of the Option in
accordance with CLAUSE 14.
"OPTION PRICE" means:
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(a) for the purposes of the exercise of the Put Option under CLAUSE
14.5(c), 25 per cent. of four times Future Maintainable Operating
Profits; or
(b) otherwise means the greater of:
(i) A$3,125 million; or
(ii) such sum as the Buyer and the Sellers mutually agree in
writing within 30 days of the Buyer giving notice of its exercise of
the Option in the manner provided for the giving of notices under this
agreement; or
(iii) or, in the event that agreement is not so reached, at a
price that is determined by a mutually agreed firm of chartered
accountants appointed within 10 days of a failure to agree under
clause (ii) as being the fair market value of the shares purchased
such determination to be made within 30 days of appointment; or
(iv) 25 per cent. of four times Future Maintainable Operating
Profits.
"OPTION SECURITIES" means all of the Remaining Shares together with the benefit
of all rights (including dividend rights) attached to or accruing to the
Remaining Shares as at the Exercise Date.
"PENALTY INTEREST RATE" means the rate fixed from time to time under section 2
of the Penalty Interest Rates ▇▇▇ ▇▇▇▇.
"PERSONAL GUARANTEES" means the guarantees given by ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇
in support of the Mortgage Debenture.
"POWER" means any right, power, authority, discretion or remedy conferred on
the parties by this agreement or any applicable law.
"PRESCRIBED REMEDIAL ACTION" means the taking of any one or more of the
following steps required in a Clean-Up Notice:
(a) ascertaining the nature and extent of any Contaminant on, in, under or
emitted or discharged from any of the Properties;
(b) preparing a remedial action plan for any of the Properties and, if
required, a long term management plan;
(c) removing the cause of the presence of any Contaminant from any of the
Properties;
(d) preventing or reducing the emission or discharge of any Contaminant
from any of the Properties;
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(e) reducing the concentrations of any Contaminant on, in, or under any of
the Properties;
(f) eliminating or reducing any danger arising from the presence of any
Contaminant on, in or under the Properties;
(g) restoring any of the Properties;
including the taking of any such steps in respect of groundwater under any of
the Properties.
"PROPERTIES" means the properties leased under the Property Leases and any
properties occupied under licence by the ▇▇▇▇ ▇▇▇▇ Group and for the purposes
of Clean-Up Notice, Contaminant, Environmental Liability and Prescribed
Remedial Action only also includes all properties which have at any time been
owned or occupied by any member of the ▇▇▇▇ ▇▇▇▇ Group.
"PROPERTY LEASES" means the leases of real property listed in CLAUSE 2 OF
SCHEDULE 4.
"PURCHASE PRICE" has the meaning given that term in CLAUSE 4.1
"PUT OPTION" means the put option referred to in CLAUSES 14.4 and 14.5.
"REGISTRATION STATEMENT" means the application to be filed with the SEC by the
Buyer for registration of the Initial Bolle Stock under the U.S. Securities ▇▇▇
▇▇▇▇.
"RELEVANT DATE" means 1 January, 1993.
"RELEVANT SCHEMES" means all superannuation schemes, retirement benefit schemes
or other pension schemes or arrangements and all employment benefit plans,
programs or arrangements such as medical, dental or life insurance to which
▇▇▇▇ ▇▇▇▇ is a party or which ▇▇▇▇ ▇▇▇▇ makes available or procures for its
officers or the Employees or any former officers or employees as listed in
Schedule 3.
"RENTAL ASSETS" means those assets in the possession or control of and/or owned
or used by ▇▇▇▇ ▇▇▇▇ which are the subject of the Rental Contracts.
"RENTAL CONTRACTS" means the lease, rental, hire purchase, credit sale or other
similar agreements in writing as listed in Schedule 4.
"SEC" means the Securities and Exchange Commission of the United States of
America or its successors.
"SECURITY INTEREST" means an interest or power:
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(a) reserved in or over an interest in any asset including, but not limited
to, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset under
a ▇▇▇▇ of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of a debt or any other monetary obligation
or the performance of any other obligation and includes, but is not limited to,
any agreement to grant or create any of the above.
"SELLERS" means ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ or such of them as
are registered holders of the Shares or the Remaining Shares.
"SHARES" means 15,000 ordinary shares of $1.00 each in the capital of ▇▇▇▇
▇▇▇▇.
"IDENTIFIED STOCK" means the stock listed in schedule 11.
"STOCK EXCHANGE" means NASDAQ or such other SEC approved stock exchange upon
which the Buyer's registered common stock is publicly traded from time to time,
or if there is more than one such stock exchange, the stock exchange upon which
the Buyer's registered common stock is traded in greater volume.
"STOCKS" means all the stock in trade of the Business.
"SYDNEY PROPERTY" means the property situated at ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
and ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ being the whole of the land
comprised in Certificate of Title Volume 7396 Folio 36 and Register Folio
1/733384.
"TAX" means all forms of taxation, duties, levies, imposts, fees, deductions,
charges and withholdings whatsoever whether of Australia or elsewhere including
income tax, corporation tax, fringe benefits tax, capital gains tax, pay as you
earn tax, customs and other import or export duties, excise duties, sales tax,
stamp duty or other similar contributions together with interest thereon and
penalties, if any, and charges, fees or other amounts made on or in respect
thereof.
"TAX ACT" means the Income Tax Assessment ▇▇▇ ▇▇▇▇ or in the Income Tax
Assessment Act 1997 as amended from time to time and any related or
subordinated legislation including any reenactment or replacement thereof.
"TAX LIABILITY" means any loss incurred or any other amount paid or payable by
or in respect of ▇▇▇▇ ▇▇▇▇ Group as a result of a notice of assessment or a
notice of amended assessment for Tax by the Commissioner for the Tax Period
except to the extent such loss incurred or amounts paid or payable relate to
the Buyer's 51 per cent shareholding of Bolle Sunglasses Ltd.
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"TAX PERIOD" means the period up to Completion Date.
"THIRD PARTY INTEREST" includes any Security Interest, option, voting
arrangement, easement, covenant, notation, restriction, interest under any
agreement or trust or other right, equity, entitlement or other third party
interest of any nature.
"TRADING PRICE" means the greater of:
(a) the average closing price of the Buyer's common stock on the Stock
Exchange during the Calculation Period; and
(b) the Issue Price.
"TRUST" means the ▇▇▇▇ ▇▇▇▇ Trust.
"TRUST DEED" means the Deed of Trust of the ▇▇▇▇ ▇▇▇▇ Trust dated 30 November,
1980 as amended by supplemental deeds dated 10 July, 1985, 30 May, 1989 and 1
July, 1989.
"$US" means the lawful currency of the United States of America.
"WARRANTIES" means the warranties and representations set out in Schedule 1.
"WARRANTY AMOUNT" means, in respect of any breach of the Warranties by the
Sellers, any single loss, claim, cost, demand, liability or expense suffered by
the Buyer (directly or indirectly).
1.2. INTERPRETATION
In this agreement, unless the context otherwise requires:
(a) headings are for convenience only and do not affect the
interpretation of this agreement;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate and any governmental agency;
(f) a reference to a party to a document includes that party's successors
and permitted assigns;
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(g) no rules of construction applies to the disadvantage of a party
because that party was responsible for the preparation of this
agreement or any part of it;
(h) a covenant or agreement on the part of two or more persons binds them
jointly and severally; and
(i) the expressions "include" and "including" mean "including without
limitation".
1.3. KNOWLEDGE AND AWARENESS
For the purposes of this agreement, where a Warranty is given on the basis of
the Sellers' knowledge and awareness this means that in order to establish that
the Warranty is true and not misleading the Sellers have made reasonable
inquiries.
1.4. ACCOUNTING STANDARDS
(a) Subject to any provisions of this agreement to the contrary, in
respect of any accounting practice relevant to this agreement, the
following accounting standards apply:
(1) the accounting standards required under the Corporations
Law;
(2) if no accounting standard applies under the Corporations
Law, the standards acceptable to the Australian
Accounting Research Foundation, including:
(A) the Australian Accounting Concepts;
(B) the Australian Accounting Standards;
(C) the Approved Accounting Standards; and
(3) if no accounting standard applies under CLAUSES 1.4(a)(1)
OR 1.4(a)(2), the accounting practice agreed between the
parties and, failing agreement, the accounting practice
determined under CLAUSE 1.4(b).
(b) If the parties do not agree under clause 1.4(3), the matter must be
referred within 10 Business Days to the President of the Institute of
Chartered Accountants in Australia or his nominee for the
determination of the appropriate accounting practice. Any party may
make this referral.
(c) A determination under CLAUSE 1.4(b) is final and binding on the
parties.
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(d) The parties must bear their respective costs of any referral and
determination under CLAUSE 1.4(b).
(e) In making a determination under CLAUSE 1.4(b), the President of the
Institute of Chartered Accountants or his nominee acts as an expert,
not as an arbitrator.
PART 2.
CONDITIONS PRECEDENT TO AGREEMENT
2.1. CONDITIONS PRECEDENT
This agreement (other than CLAUSES 2.2 AND 5.2, PART 9 AND CLAUSE 15.1) is of
no force or effect unless and until:
(a) the Buyer is informed in writing by or on behalf of the Federal
Treasurer that there are no objections in terms of the Australian
Government's Foreign Investment Policy to the Buyer acquiring the
Shares or the period during which the Federal Treasurer is empowered
by Section 25 of the Foreign Acquisitions and Takeovers ▇▇▇ ▇▇▇▇ (Cth)
to make an order prohibiting the proposed acquisition by the Buyer has
expired without such an order (other than an interim order) having
been made, whichever is the earlier; and
(b) ▇▇▇▇ ▇▇▇▇ has obtained an agreement to lease the Melbourne Property
for a term of 3 years with an option for a further term of 3 years
together with an option to purchase the Melbourne Property at market
value on certain terms exerciseable during the last 7 days of the term
of the lease or any extension thereof.
2.2. BEST ENDEAVOURS
Each of the parties must use their best endeavours to procure the fulfillment
of each of the conditions in CLAUSE 2.1 and must keep the other parties
informed of any circumstances which may result in the relevant condition not
being satisfied in accordance with its terms.
PART 3.
AGREEMENT TO SELL
3.1. SALE OF SHARES
Subject to the terms of this agreement, the Sellers have agreed to sell and the
Buyer has agreed to buy the Shares for the Purchase Price free of Security
Interests and other third party rights on Completion.
3.2. ASSOCIATED RIGHTS
The Sellers must sell the Shares together with all rights attached to them as
at the date of this agreement and all those
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rights which accrue between the date of this agreement and Completion.
PART 4.
PURCHASE PRICE
4.1. AMOUNT
The price ("PURCHASE PRICE") payable by the Buyer to the Sellers for the Shares
is the sum of A$9.375 million comprising a cash payment to the Trust of A$5.875
million and the issuing to the Trust of the Bolle Stock.
4.2. PAYMENT AND ISSUING OF THE BOLLE STOCK
On and subject to the terms and conditions of this agreement the Buyer must:
(a) on the Completion Date pay the part of the Purchase Price by the
payment of A$5.875 million and the issuing of the Initial Bolle Stock
in three equal proportions to each of ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇ ▇▇▇▇▇▇▇ or to such person or persons or other entities and in such
proportions as ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ may direct in
respect of their respective allocated proportions of the Initial Bolle
Stock;
(b) on the Further Completion Date satisfy the balance of the Purchase
Price by the issuing of the Further Bolle Stock, if any, in three
equal proportions to each of ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇
or to such person or persons or other entities and in such proportions
as ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ may direct in respect of
their respective allocated proportions of the Further Bolle Stock.
4.3. INTEREST
If any party fails to pay any sum payable by it under this agreement at the
time and otherwise in the manner provided in this agreement it must pay
interest on such sum from the due date of payment until such sum is paid in
full at the rate which is the aggregate of 2 per cent per annum and the Penalty
Interest Rate.
4.4. METHOD OF PAYMENT
All payments to be made under this agreement must be made by bank cheque or in
such other immediately available funds as may be agreed in writing between the
Sellers and the Buyer.
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PART 5.
PERIOD BEFORE COMPLETION
5.1. BUSINESS IN THE ORDINARY COURSE
Before Completion the Sellers must ensure that ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies:
(a) carry on the Business in the ordinary and normal course;
(b) use all reasonable endeavours to preserve the value of the goodwill,
assets, financial and trading position of the Business;
(c) subject to CLAUSE 5.1(a), do not enter into any material commitment
with respect to the Business without the prior written consent of the
Buyer which consent will not be unreasonably withheld;
(d) subject to CLAUSE 8.2, do not acquire, dispose of, or create a
Security Interest over any of their assets other than acquisitions or
disposals of stock in trade in the ordinary course of ordinary
business except as contemplated by this agreement;
(e) do not distribute or return any capital or pay any dividend to its
members except as expressly contemplated by this agreement;
(f) do not pay any management fee, or similar amount, unless the Buyer
first consents in writing which consent will not be unreasonably
withheld;
(g) do not issue any shares, options or securities which are convertible
into shares in any of the entities comprising the ▇▇▇▇ ▇▇▇▇ Group;
(h) do not do or omit to do anything as a result of which any of the
Warranties would not be true if given at any time before Completion;
(i) except as required by law or in the ordinary course of ordinary
business, do not engage any new employee, change the terms (including
remuneration) of any of the Employees, or pay or provide any bonus to
any Employee unless the Buyer consents in writing which consent will
not be unreasonably withheld;
(j) do not alter their Memorandum or Articles of Association unless the
Buyer first consents in writing which consent will not be unreasonably
withheld.
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5.2. ACCESS
Before the Completion Date the Sellers must:
(a) ensure that the Buyer, and any person authorised by the Buyer, are,
upon the giving of reasonable notice by the Buyer and at the Buyer's
cost and expense, given all reasonable access during normal business
hours to the assets, books of account, records and documents of ▇▇▇▇
▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies;
(b) answer any reasonable written inquiries or requisitions issued by the
Buyer;
(c) allow the Buyer, and any person authorised by the Buyer, to make
copies (at the Buyer's cost and expense) of all materials examined;
(d) introduce the Buyer, and any person authorised by the Buyer, to the
suppliers of the Business;
(e) allow the Buyer and its advisers to consult ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇
▇▇▇▇▇▇▇; and
(f) provide to the Buyer the Monthly Financial Statements between the date
of this agreement and Completion Date.
5.3. BANK AUTHORITIES
Not less than five Business Days prior to the Completion Date the Buyer must
advise the Sellers of the authorities to operate bank accounts that are to be
revoked and the names of the new signatories to those accounts.
5.4. PROMPT DISCLOSURE OF BREACH
The Sellers must immediately disclose to the Buyer any matter, event or
circumstance (including any omission to act) which may arise or become known to
the Sellers or any one of them after the date of execution of this agreement
and up to Completion which:
(a) constitutes a breach of or has a material adverse effect on any
Warranty; or
(b) has or is likely to have a material adverse effect on the financial
position or prospects of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies.
5.5. INSURANCE
The Sellers and the Buyer agree that:
(a) the Sellers will ensure that insurance presently held by ▇▇▇▇ ▇▇▇▇ and
the ▇▇▇▇ ▇▇▇▇ Companies is maintained by
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those companies up to and including the Completion Date; and
(b) the Buyer will be responsible for all such insurance after the
Completion Date.
The Sellers confirm that the current insurance will remain valid and effective
after Completion.
5.6. REGISTRATION STATEMENT
The Buyer shall:
(a) file the Registration Statement with the SEC as soon as practicable
after the signing of this agreement and in no event later than the end
of May, 1998;
(b) provide a copy of the Registration Statement to the Sellers within 7
days of its filing;
(c) notify the Sellers forthwith in writing of any amendment to the
Registration Statement; and
(d) notify the Sellers forthwith in writing of the registration by the SEC
of the Initial Bolle Stock.
PART 6.
NO ASSIGNMENT
6.1. NO ASSIGNMENT
No party to this agreement shall assign or purport to assign its rights or
obligations under this agreement without the prior written approval of all
other parties.
PART 7.
COMPLETION
7.1. DATE FOR COMPLETION
Completion must take place on the Completion Date at 12 noon at ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or as otherwise agreed in writing by the
parties.
7.2. DELIVERY OF DOCUMENTS
At Completion, the Sellers must deliver to the Buyer:
(a) share certificates for the Shares;
(b) completed transfers of the Shares to the Buyer in registrable form,
executed by the Sellers;
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(c) the following documents in respect of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies:
(1) all available copies of the Memorandum and Articles of
Association;
(2) the common seal and any duplicate seals; and
(3) the Certificate of Registration;
(d) the Rental Contracts;
(e) the corporate registers of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies;
(f) written resignations of
(1) ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ (as appropriate) as secretary
of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies; and
(2) such other directors or secretaries of ▇▇▇▇ ▇▇▇▇ and the
▇▇▇▇ ▇▇▇▇ Companies (if any) as requested by the Buyer
before Completion;
(in the form of resignation appearing in Schedule 5) to be
effective on the appointment of the directors, secretary and
auditors to be appointed at the Board meeting to be convened
under CLAUSE 7.3;
(g) possession of all ledgers, journals and books of account and other
business records of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies; and
(h) Certificates of Registration of the Business Names;
(i) all other property of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies in the
possession of the Sellers;
(j) a counterpart copy of each of the Employment Agreements signed by ▇▇
▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇;
(k) all cheque books of the ▇▇▇▇ ▇▇▇▇ Group and a list of all bank
accounts maintained by the ▇▇▇▇ ▇▇▇▇ Group;
(l) all releases of the ▇▇▇▇ ▇▇▇▇ Group guarantees that have been obtained
in accordance with CLAUSE 9.1; and
(m) the forms of proxy required to give effect to CLAUSE 7.8.
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7.3. BOARD MEETINGS
At Completion the Sellers must ensure that a meeting of the directors of ▇▇▇▇
▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies is convened and conducts the following
business:
(a) approval of the registration of the Buyer as the holder of the Shares
in the books of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies, subject to the
payment of Duty on the transfer of the Shares;
(b) appointment of the nominees of the Buyer as:
(1) directors of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies; and
(2) secretary of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies;
(c) revocation of all existing mandates for the operation of bank accounts
of the ▇▇▇▇ ▇▇▇▇ Group and approval of new mandates in favour of the
officers of the ▇▇▇▇ ▇▇▇▇ Group nominated by the Buyer.
7.4. BUYER'S OBLIGATIONS AT COMPLETION
At Completion the Buyer must:
(a) pay to the Trust or to such person or persons and in such proportions
as ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ unanimously direct the
Purchase Price as set out in CLAUSE 4.2(a);
(b) deliver to the Sellers written consents to act from the persons
nominated by the Buyer as the directors and secretary of ▇▇▇▇ ▇▇▇▇ and
the ▇▇▇▇ ▇▇▇▇ Companies;
(c) deliver to the Trust or to such person or persons and in such
proportions as ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ direct share
certificates for the Initial Bolle Stock;
(d) deliver to ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ duly executed counterpart
copies of each of the Employment Agreements;
(e) deliver a duly executed Form 312 releasing ▇▇▇▇ ▇▇▇▇ from the Mortgage
Debenture and the irrevocable release in writing of Barclays Bank plc
of the guarantee given by the Bank in support of Bolle Sunglasses Ltd;
(f) deliver a duly executed release from or an Indemnity in respect of the
Personal Guarantees; and
(g) deliver a copy of the Registration Statement.
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7.5. INTERDEPENDENCY
The obligations of the parties in respect of Completion are interdependent. All
actions at Completion will be deemed to take place simultaneously and no
delivery or payment will be deemed to have been made until all deliveries and
payments due under this agreement at Completion have been made.
7.6. OBLIGATIONS FOLLOWING COMPLETION
Whenever reasonably requested by the Buyer for a period of 6 months after the
Completion Date ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ must give to the
directors for the time being of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies all
reasonable information and explanation relating to the Business and the affairs
of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies prior to the Completion Date as those
directors may reasonably require for the purpose of complying with any
statutory requirements.
7.7. CERTIFICATION BY BUYER AND SELLERS
(1)(a) At Completion, the Sellers will affix to each of the documents
referred to in CLAUSE 7.2(c)(1), 7.2(e), AND 7.2(h) a certificate
stating that, subject to paragraph (1)(c), the document to which the
relevant certificate is affixed is a true and original document or
copy of a document and in the case of the Memorandum and Articles of
Association of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies, it contains
copies of all resolutions by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies
amending their respective Memorandum and/or Articles of Association
since the Relevant Date and, to the best of the Sellers' knowledge,
since the relevant company's date of incorporation.
(b) Each of the certificates referred to in paragraph (1)(a) will be
deemed to be a Warranty under this agreement.
(c) Where any certificate referred to in paragraph (1)(a) relates to a
document that came into existence prior to the Relevant Date (save and
except for any amendments to such document after the Relevant Date),
such certificate will be to the knowledge of the Sellers only.
(2) At Completion, the Buyer will affix to each of the documents referred
to in CLAUSE 7.4(c), 7.4(d), AND 7.4(g) a certificate stating that the
document to which the relevant certificate is affixed is a true and
original document or copy of a document.
7.8. EXERCISE OF RIGHTS OF REGISTERED SHAREHOLDER
From Completion, until the Shares are registered in the name of the Buyer, each
Seller must, at the cost of the Buyer appoint the nominees of the Buyer as his
sole proxy to attend shareholders
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meetings and exercise the votes attached to the Shares and must not attend or
vote at those meetings except in his capacity as the holder of the Remaining
Shares.
7.9. INDEMNITY
The Buyer indemnifies the Sellers from any and all claims, suits, actions,
demands, damages, losses, liabilities, costs including reasonable legal costs,
charges, expenses, outgoings or payments arising out of or in connection with
the implementation of any action taken under the proxy referred to in CLAUSE
7.8.
7.10. FURTHER COMPLETION
Upon Further Completion the Buyer must on the Further Completion Date deliver
to the Trust or to such person or persons and in three equal proportions as ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ direct share certificates for the
Further Bolle Stock, if any.
7.11. ACKNOWLEDGMENT
The Sellers acknowledge that upon Completion the transaction will be deemed to
be effective as of 1 January, 1998 and all profits and benefits of the Business
derived from that date will be to the account of the post-Completion
shareholders.
PART 8.
WARRANTIES
8.1. GIVING OF WARRANTIES
Subject to CLAUSE 8.5, the Sellers give the Warranties in favour of the Buyer
as at the date of this agreement and at the Completion Date.
8.2. ACKNOWLEDGMENT
The Buyer acknowledges that:
(a) (subject to the Warranties) all warranties and representations on the
part of the Sellers whether express or implied statutory or otherwise
(including without limitation under Part V of the Trade Practices ▇▇▇
▇▇▇▇, the Fair Trading Act 1985 (Victoria) or under the Corporations
Law) are, to the extent permitted by law expressly excluded;
(b) they have been granted full and free access to the records of ▇▇▇▇
▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies and have satisfactorily completed
their financial and commercial due diligence investigations in
relation to the Business and the assets of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies
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and have had the opportunity to conduct any further due diligence
before signing this agreement;
(c) the assets of ▇▇▇▇ ▇▇▇▇ at Completion do not include the Sydney
Property or the proceeds of any sale thereof or shares in ▇▇▇▇▇▇▇ ▇▇▇▇
& Co. Pty Ltd which are to be or have been distributed to the
shareholders of ▇▇▇▇ ▇▇▇▇ prior to Completion Date;
(d) ▇▇▇▇ ▇▇▇▇ has paid to its shareholders a dividend of A$25,000 in each
of July, August and September, 1997;
(e) ▇▇▇▇ ▇▇▇▇ will declare a further dividend of A$700,000 before
Completion Date payable to and in favour of the Sellers provided that:
(i) the after-tax profit for the six months ended 31 December,
1997 is greater than A$690,000; and
(ii) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies collectively have as at
the Accounts Date net tangible assets of not less than A$2.55
million and excluding the assets, transactions and payments
described in CLAUSES 8.2(c), (d), (e) AND (f);
such dividend to be paid:
(1) as to $246,891 before Completion;
(2) as to part of the balance, quarterly in the amount of the
lesser of book value or sale price of such of the Identified
Stock as was sold during the course of the immediately
preceding fiscal quarter during the period commencing on 1
April, 1998 and ending on 30 June, 1999;
(3) as to the remainder in the event that there is a balance of
the dividend of more than $A15,000 unpaid at 30 June, 1999 no
further payment will be made. If the balance is less than
$15,000 then the full remainder will be paid.
(f) payments relating to CLAUSES 8.2(c), (d), AND (e) are to be first
applied to clear the loan accounts of each of Sunnyco Pty Ltd, ▇▇
▇▇▇▇▇▇▇, Tickworth Pty Ltd, Second Pasdenom Pty Ltd and the Trust with
any balance to be paid to the Trust by way of fully franked dividend
to the extent of any franking credits.
8.3. RELIANCE
The Sellers acknowledge that the Buyer has entered into this agreement in
reliance on the Warranties and the Buyer
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acknowledges that the Sellers have entered into this agreement in reliance on
the warranties given in CLAUSE 8.6.
8.4. LIMITATION ON WARRANTIES
Notwithstanding anything contained in this agreement or the Warranties (whether
express or implied):
(a) the Buyer may not claim for any breach of a Warranty unless:
(i) the Warranty Amount exceeds $10,000; and
(ii) the Warranty Amount in respect of all breaches of
the Warranties is at least $50,000;
in which case the Buyer may only claim for such of the amount of the
breach of Warranties as exceeds $50,000;
(b) the Sellers will not be liable for any breach of the Warranties unless
on or before 31 March, 2000, the Buyer has given written notice to the
Sellers of any such breaches specifying (in reasonable detail) the
matter which gives rise to the breach, the nature of the breach and,
if known, the amount claimed in respect of it; and
(c) no claim will be made by the Buyer under any of the Warranties in
respect of a matter of which the Buyer or its professional advisers
are aware.
8.5. QUALIFICATION OF WARRANTIES
The Warranties appearing in CLAUSES 6.1 AND 6.3 of Schedule 1 are given only on
the Completion Date.
8.6. BUYER'S WARRANTIES
The Buyer represents and warrants that as at the date of this agreement and the
Completion Date:
(a) the Buyer is duly constituted according to the laws of its place of
incorporation and capable of entering into and performing this
agreement;
(b) the Buyer is not aware of any information that would materially affect
the Sellers' obligations or entitlements under this agreement;
(c) the Buyer's Form S-1 provided to the Sellers is accurate in all
material respects;
(d) the Buyer is not aware of any matter or fact other than as disclosed
in its Form S-1 which would adversely affect the
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value or price of the Bolle Stock or the Sellers' ability to sell the
Bolle Stock.
8.7. BUYER AND SELLERS' WARRANTY
The Buyer and Sellers each agree and warrant that ▇▇▇▇ ▇▇▇▇ will until Option
Completion be managed and operated and its business be conducted in the
ordinary course of ordinary business in a manner consistent with past practice
as reflected in the audited accounts of ▇▇▇▇ ▇▇▇▇ for the period prior to the
Accounts Date.
PART 9.
RELEASE OF GUARANTEES AND INDEMNIFICATION
9.1. RELEASE OF GUARANTEES
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ must advise all suppliers of goods
and services and other third parties (other than the Bank) to which they or any
one or more of them have provided a guarantee or Security Interest in relation
to ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies, that their guarantee or Security
Interest is no longer of any force or effect after the Completion Date in
respect of goods or services ordered after the Completion Date.
9.2. INDEMNIFICATION
The Buyer indemnifies and agrees to keep indemnified ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇
and ▇▇ ▇▇▇▇▇▇▇ in respect of any claim, suit, action, demand, damage, loss,
liability, cost including reasonable legal costs, charges, expenses, outgoings
or payments which ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ or any one or more
of them directly or indirectly pay, suffer, incur or are liable for in relation
to any disclosed guarantee or Security Interest given by them in connection
with the Business including but not limited to the Personal Guarantees and the
guarantee or Security Interest referred to in CLAUSE 9.1 in respect of goods or
services ordered after the Completion Date.
PART 10.
NON COMPETITION
10.1. UNDERTAKINGS
(a) For the purposes of CLAUSE 10.1(b) the expression "competitive with
the Business" includes (but is not limited to) competition in a small
part of the Business or mere competition in peripheral products or
lines of business.
(b) The Sellers must not do and must ensure that no party controlled by
them or in which they have an interest, except for 5 per cent. or less
share holdings in publicly
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listed companies, does any of the following without first obtaining the
written consent of the Buyer:
(1) directly or indirectly carry on (whether alone or in
partnership or joint venture with anyone else) or
otherwise be concerned with or interested in (except
of the Remaining Shares, whether as trustee,
principal, agent, shareholder, unit holder or in any
other capacity) any business similar to or
competitive with the Business in:
(A) United Kingdom;
(B) Hong Kong;
(C) New Zealand;
(D) the People's Republic of China;
(E) Taiwan;
(F) Singapore;
(G) Malaysia;
(H) the Philippines;
(I) Thailand;
(J) Vietnam;
(K) Cambodia;
(L) Macau;
(M) Australia;
(N) Victoria;
(O) New South Wales and the ACT;
(P) Queensland;
(Q) Western Australia;
(R) South Australia;
(S) Tasmania; and
(T) the Northern Territory;
for:
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(i) 3 years after Completion
Date;
(ii) 2 years after Completion
Date;
(iii) 1 year after Completion
Date;
(iv) 3 years after exercise of
the Option;
(v) 2 years after exercise of
the Option;
(vi) 1 year after exercise of
the Option.
(2) solicit or persuade any person or corporation which is a
customer or client of the Buyer or the ▇▇▇▇ ▇▇▇▇ Group or who was in
the 12 month period before the Completion Date a customer or client of
or in respect of the Business to cease doing business with the Buyer
or the ▇▇▇▇ ▇▇▇▇ Group or reduce the amount of business which the
customer or client would normally do in respect of the Business:
(A) 3 years after Completion Date;
(B) 2 years after Completion Date;
(C) 1 year after Completion Date;
(D) 3 years after exercise of the Option;
(E) 2 years after exercise of the Option;
(F) 1 year after exercise of the Option.
(3) accept from a customer or client referred to in CLAUSE
10.1(b)(2) any business of the kind ordinarily forming part of the
Business:
(A) 3 years after Completion Date;
(B) 2 years after Completion Date;
(C) 1 year after Completion Date;
(D) 3 years after exercise of the Option;
(E) 2 years after exercise of the Option;
(F) 1 year after exercise of the Option.
(4) at any time use or disclose to any third party any trade
secrets, product information or confidential
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information of the Business which is not generally known or available
in the market place or which but for a breach of this CLAUSE
10.1(b)(4) would not be generally known or available in the market
place; or
(5) at any time induce or attempt to induce any person who is at
the time of Completion or who later becomes an employee of the Buyer
or any Related Corporation of the Buyer in the Business to terminate
his or her employment with the Buyer or any Related Corporation of the
Buyer.
10.2. EFFECT ON VALUE OF THE SHARES
The Sellers agree that:
(a) any breach of CLAUSE 10.1 would diminish the value of the Shares; and
(b) the restrictive undertakings in CLAUSE 10.1 are reasonable and
necessary for the protection of the value of the Shares and must be
given full effect.
10.3. LEGAL ADVICE
The Sellers acknowledge that they have received legal advice in relation to
this agreement and in particular CLAUSE 10.1.
10.4. INJUNCTION
The Sellers acknowledge that monetary damages alone would not be adequate
compensation to the Buyer for a breach of CLAUSE 10.1 and that the Buyer is
entitled to seek an injunction from a court of competent jurisdiction in the
event of and in respect of:
(a) any failure to comply or threatened failure to comply by the Sellers
with CLAUSE 10.1;
(b) the Buyer having reason to believe that the Sellers will not comply
with CLAUSE 10.1.
10.5. SEPARATE UNDERTAKINGS
If notwithstanding the other provisions of this CLAUSE 10 any part of an
undertaking in CLAUSE 9.1 is unenforceable it may be severed without affecting
the remaining enforceability of that or other undertakings.
10.6. SURVIVAL
The Seller's obligations under this CLAUSE 10 survive the Completion of this
agreement.
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10.7. SELLERS' OBLIGATIONS SEVERAL NOT JOINT
The obligations of the Sellers pursuant to this CLAUSE 10 are several not joint
and a breach of them by one or more of the Sellers shall not constitute a
breach by the remaining Sellers.
PART 11.
ANNOUNCEMENTS
11.1. LEGAL REQUIREMENTS
The Buyer may disclose anything in respect of this agreement or the terms of
sale of the Shares as required:
(a) by any applicable law or
(b) by the requirements of any recognised stock exchange on which its
shares or the shares of any related body corporate are listed,
but to the extent possible, the Buyer must consult with the Sellers before
making the disclosure and use reasonable endeavours to agree on the form and
content of the disclosure.
11.2. DISCLOSURE TO OFFICERS AND PROFESSIONAL ADVISERS
The Buyer may disclose anything in respect of this agreement or the terms of
the sale of the Shares to the officers and professional advisers of the Buyer
but it must use its best endeavours to ensure all matters disclosed are kept
confidential.
11.3. FURTHER PUBLICITY
Subject to CLAUSES 11.1 AND 11.2 the Buyer may not disclose the provisions of
this agreement or the terms on which the Shares are sold unless the Sellers
first consent in writing.
11.4. PUBLIC ANNOUNCEMENT
Subject to CLAUSE 11.3 any and all public announcements of any kind made before
Completion Date concerning this agreement or the transactions contemplated by
it shall only be made with the prior written approval of the Buyer and the
Sellers.
PART 12.
TAXATION INDEMNITY
12.1. TAX INDEMNITY
The Sellers indemnify and agree to keep indemnified upon demand the Buyer at
all times from Completion Date against any Tax Liability for a period of 5
years from the date of this agreement.
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12.2. NOTIFICATION
The Buyer shall determine in good faith on reasonable grounds the amount of any
indemnity payment to be made under this CLAUSE 12 and its due date for payment
upon the issue of notice of assessment or a notice of amended assessment and
shall within 14 days of receipt of such a notice notify the Sellers of the
amount of the indemnity payment required and its due date for payment. The
amount of the indemnity payment will be the sum of:
(a) the amount of Tax payable which is sufficient to fully compensate the
Buyer for the Tax Liability;
(b) the amount of Tax payable, interest on an after-Tax basis and
penalties reasonably necessary to compensate the Buyer for any other
claims, actions, proceedings, judgments, damages, losses or
liabilities, excluding costs and expenses, incurred as a result of the
Tax Liability;
(c) the reference in CLAUSE 12.2(a) AND (b) to the after tax amount of the
payment means the payment in question net of any tax payable by the
Buyer.
12.3. OBJECTIONS AND APPEALS
If:
(a) the Commissioner for Taxation issues notice of assessment or a notice
of amended assessment in respect of a Tax Liability the Buyer will at
the written request of the Sellers cause or procure ▇▇▇▇ ▇▇▇▇ to lodge
an objection in respect of such assessment or amended assessment with
the Commissioner for Taxation in accordance with the Tax Act stating
such grounds of objection as the Sellers may reasonably require in
writing;
(b) the Sellers are disputing a notice of assessment or a notice of
amended assessment in respect of a Tax Liability then the Buyer shall
at the Sellers' request and with their assistance cause or procure
▇▇▇▇ ▇▇▇▇ to use its best endeavours to secure a delay from the
Commissioner of Taxation in the determination of the objection pending
the resolution of the dispute between the Sellers and the Commissioner
of Taxation. Pending determination of that objection the Buyer will
not compromise or settle any ground of objection with the Commissioner
without the prior written consent of the Sellers;
(c) any objection by ▇▇▇▇ ▇▇▇▇ in respect of a Tax Liability under CLAUSE
12.3(a) is disallowed in whole or part, the Buyer shall cause or
procure ▇▇▇▇ ▇▇▇▇ to serve notice thereof upon the Sellers within 14
days of its receipt and shall at the written request of the Sellers
lodge a request for a reference to the Administrative Appeals
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Tribunal or lodge a request to treat the objection as an appeal and
forward it to the Federal Court of Australia or such other Court of
competent jurisdiction nominated by the Sellers ("the Court");
(d) any reference to the Administrative Appeals Tribunal in respect of a
Tax Liability is decided against ▇▇▇▇ ▇▇▇▇, the Buyer shall at the
written request of the Sellers cause or procure ▇▇▇▇ ▇▇▇▇ to refer the
objection to the Court.
(e) an appeal to the Court in respect of a Tax Liability is decided
against ▇▇▇▇ ▇▇▇▇, the Buyer shall at the written request of the
Sellers cause or procure ▇▇▇▇ ▇▇▇▇ to take such steps as the Sellers
may reasonably require to cause an appeal to be prosecuted to the
extent permissible under the Tax Act or such other legislation
applicable to such appeals;
(f) any reference or proceeding in respect of a Tax Liability are decided
in favour of ▇▇▇▇ ▇▇▇▇ and the Commissioner appeals against such
decision the Buyer shall serve notice thereof upon the Sellers within
28 days of receipt and shall at the written request of the Sellers
take such steps as the Sellers reasonably require before whatever
Court such appeal may be heard.
12.4. ASSISTANCE AND COOPERATION
The Buyer shall, for the purposes of CLAUSE 12.3 cooperate and provide all
reasonable assistance to the Sellers and shall cause or procure ▇▇▇▇ ▇▇▇▇ to do
likewise including, but not limited to, the provision to the Sellers of access
to all personnel and records of the Buyer and ▇▇▇▇ ▇▇▇▇ relevant to undertaking
or determining whether to undertake any of the matters in CLAUSE 12.3;
12.5. SUCCESSFUL OBJECTION, REFERENCE OR APPEAL OR REFUND
(a) If the Buyer is notified that any refund is due or allowed of a Tax
Liability or, as a result of any objection, appeal or other proceeding
it has been determined that the basis of a notice of assessment or a
notice of amended assessment in respect of a Tax Liability was not
justified, the Buyer shall notify the Sellers forthwith in writing;
(b) The Buyer shall pay the Sellers or shall cause or procure ▇▇▇▇ ▇▇▇▇ to
pay to the Sellers any amount recovered from the Commissioner by way
of refund, successful objection, reference or appeal and any interest
thereon (net of any Tax payable by the Buyer on such interest) that is
also recovered, in respect of a Tax Liability and forward the
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same to the Sellers upon demand less any amount due in respect of the
indemnify payments due under CLAUSE 12.
12.6. BOLLE SUNGLASSES LTD INDEMNITY
The Buyer indemnifies and agrees to keep indemnified upon demand the Sellers at
all times from Completion Date against any liability for or loss incurred or
any other amount paid or payable by or in respect of capital gains tax which
may arise upon the transfer of ▇▇▇▇ ▇▇▇▇'▇ shares in Bolle Sunglasses Ltd for a
period of 5 years from the date of this agreement.
PART 13.
ENVIRONMENTAL INDEMNITY
13.1. BUYER'S ENVIRONMENTAL INDEMNITY
The Sellers indemnify and agree to keep indemnified upon demand the Buyer at
all times from Completion Date against any Environmental Liability for a period
of 5 years from the date of this agreement.
13.2. SELLER'S CLEAN-UP RIGHTS
If a Clean-Up Notice is served on the Buyer or the ▇▇▇▇ ▇▇▇▇ Group then,
subject to CLAUSES 13.3 AND 13.4:
(a) the Sellers may at their discretion negotiate with the Governmental
Agency which has given the Clean-Up Notice with respect to the terms
and requirements of the Clean-Up Notice;
(b) the Sellers may at their discretion determine to exercise any right of
appeal against or review of the Clean-Up Notice provided that the
exercise of such right of appeal does not materially affect the
carrying on of the business of the ▇▇▇▇ ▇▇▇▇ Group;
(c) may, in the event that any right of appeal vests in the Buyer or any
member of the ▇▇▇▇ ▇▇▇▇ Group, commence and continue any such appeal
in the name of the Buyer or any member of the ▇▇▇▇ ▇▇▇▇ Group as the
case may be;
(d) may exclusively carry out the Prescribed Remedial Action necessary to
satisfy the Cleanup Notice or the requirements of the Governmental
Agency which issued it;
(e) the Sellers and their agents are irrevocably granted the right to
enter the Properties, including the bringing of vehicles and equipment
and their installation onto the Properties for the purpose of carrying
out or continuing to carry out the Prescribed Remedial Action
necessary to satisfy the Clean-Up Notice or the requirements of the
Governmental Agency which issued it;
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(f) the Buyer must provide all reasonable assistance to the Sellers and
shall cause or procure ▇▇▇▇ ▇▇▇▇ to do likewise including, for the
purpose of facilitating the carrying out or continuing to carry out
the Prescribed Remedial Action necessary to satisfy the Clean-Up
Notice or the requirements of the Governmental Agency which issued it;
(g) the Sellers shall indemnify the Buyer against and in respect of any
loss, damage, costs, expenses, liability or other harm which arises in
connection with the taking of any action by the Sellers or their
agents with respect to a Clean-Up Notice; and
(h) the Sellers shall after completion of the Prescribed Remedial Action
as far as practicable restore the affected Properties to substantially
the same condition as applied immediately prior to the Prescribed
Remedial Action being undertaken.
13.3. EXERCISE OF SELLER'S CLEAN-UP RIGHTS
Prior to the exercise any of the rights conferred by CLAUSE 13.2, the Sellers
must:
(a) notify the Buyer in writing of any action proposed to be taken or
right proposed to be exercised;
(b) in the event that any Prescribed Remedial Action is to be undertaken,
consult with the Buyer as to how such Prescribed Remedial Action may
be carried out in a manner which avoids or minimises any material
inconvenience, loss, damage, cost, expense liability or other harm to
the Buyer or disruption to the business of the ▇▇▇▇ ▇▇▇▇ Group.
13.4. COSTS OF APPEAL
If the Sellers exercise any of the rights of appeal or review conferred by
CLAUSE 13.2 in the name of the Buyer, the Sellers must indemnify the Buyer
against any order for costs made against it and all other costs reasonably
incurred by the Buyer in the course of such proceeding in the event that such
appeal or review is unsuccessful.
13.5. NOTIFICATION OF CLEAN-UP NOTICE
If a Clean-Up Notice is served upon the ▇▇▇▇ ▇▇▇▇ Group, the Buyer or the
Sellers:
(a) the party receiving such notice shall notify or shall cause or procure
the notification of the other party of such service by providing a
copy of the notice and any other document served with it or other
document served or
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forwarded by a Governmental Agency which foreshadows the possibility
of a Clean-Up Notice being served as soon as practicable but in any
event within 3 days of its receipt; and
(b) the Sellers shall exercise their election under CLAUSE 13.2 within 14
days of the receipt by them of the Clean-Up Notice by giving the Buyer
notice in writing prior to exercising any of the rights conferred by
that clause.
13.6. AVOIDANCE OF BREACH OF ENVIRONMENTAL LAW
The Buyer and Sellers acknowledge that any Clean-Up Notice must be satisfied as
quickly as practicable to avoid any breach of Environmental Law and will employ
reasonable endeavours to do so.
PART 14.
ONGOING INVESTMENT
14.1. DISTRIBUTION OF ANNUAL PROFITS
The Buyer and the Sellers agree that the Dividend will be declared and payable
by ▇▇▇▇ ▇▇▇▇ 5 days after presentation of signed audited accounts of ▇▇▇▇ ▇▇▇▇
and ▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd but in no event later than 105 days after 31
December each year until Option Completion. The Buyer and the Sellers further
agree that in the event that the Dividend or any part thereof cannot be paid
for any reason whatsoever but the Adjusted Financial Statements show that a
profit has been made which would otherwise entitle the Sellers to the Dividend,
▇▇▇▇ ▇▇▇▇ will pay to ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ a bonus equivalent to the
after tax value of such of the Dividend as has not been so paid.
14.2. CALL OPTION
In consideration of A$1.00 paid by the Buyer to the Sellers (receipt of which
is hereby acknowledged) the Sellers grant the Buyer an irrevocable option to
require the Sellers to sell the Remaining Shares in accordance with this
Agreement.
14.3. EXERCISE OF CALL OPTION
The Buyer may exercise the Call Option by giving notice in writing.
14.4. PUT OPTION
In consideration of A$1.00 paid by the Sellers to the Buyer (receipt of which
is hereby acknowledged) the Buyer grants the Sellers an irrevocable option to
require the Buyer to purchase the Remaining Shares in accordance with this
Agreement.
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14.5. EXERCISE OF PUT OPTION
The Sellers may exercise the Put Option by the giving notice in writing given
by ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ if:
(a) None of ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ Kiedasch, or Ian ▇ ▇ ▇▇▇▇▇▇ are
members of the Board of Directors of the Buyer and this option is
exercised by notice given to the Buyer within 6 months of the last of
them ceasing for whatever reason to be members of the Board of
Directors of the Buyer; or
(b) After the elapse of 5 years from the date of this agreement the
Adjusted Price is more than US$14 per share:
(c) 5 years has elapsed from the date of this agreement.
14.6. TERMS APPLICABLE TO EITHER OPTION
The Option Securities will be sold free of any Encumbrance and with all rights
attached to them at the date of Option Completion.
14.7. OPTION COMPLETION
Option Completion shall take place at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
on the first Business Day occurring 5 Business Days after the exercise of the
Option or such other date or place as may be agreed between the parties.
14.8. DOCUMENTS TO BE DELIVERED
The Sellers will deliver to the Buyer on or before Option Completion transfers
in registrable form in favour of the Buyer or other transferees as it may
direct, duly executed by the Sellers as transferor of the Option Securities.
14.9. PAYMENT OF THE OPTION PRICE
Upon Option Completion the Buyer will pay to the Trust or to such person or
persons and in such proportions as ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇ may direct the
Option Price by wire transfer or by bank cheque as agreed between the parties.
14.10. MAINTAINING NET TANGIBLE ASSETS
Except as caused by cumulative operating losses, the Buyer will at all times
until Option Completion maintain the net tangible assets of ▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ Oaks Pty Ltd collectively such that they are greater than A$2.55
million as shown in the audited accounts and the Adjusted Financial Statements
of those companies or such other amount as may from time to time be agreed
between ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ and the management of the Buyer.
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14.11. RENEWAL OF THE LICENCE
The Buyer will at all times until Option Completion grant such extensions of
the Licence as are necessary to continue the Licence on the same terms as
presently apply until Option Completion.
14.12. SALE OF BOLLE ASIA LTD
The Buyer will not sell or agree to sell and will not cause or procure ▇▇▇▇
▇▇▇▇ to sell or agree to sell any shares in Bolle Asia Ltd until Option
Completion without the prior written approval of ▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇ ▇▇▇▇▇▇▇.
PART 15.
MISCELLANEOUS
15.1. COSTS AND EXPENSES
Each party will be responsible for and must pay its own costs and expenses in
respect of the negotiation, preparation, execution and delivery of this
agreement or any document contemplated by this agreement incurred since 31
December, 1996 except that the Buyer must pay any Duty in respect of:
(a) this agreement; and
(b) any agreement or document entered into or signed under this agreement.
15.2. NOTICES
Any notice or other communication including, but not limited to, any request,
demand, consent or approval, to or by a party to this agreement:
(a) must be in legible writing addressed as shown:
(1) if to the Sellers: to each at the addresses given
at the commencement of this
agreement marked to their
respective attention.
(2) if to the Buyer or the Guarantor: The President, Bolle Inc
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
or as specified to the sender by any party by notice;
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(b) is regarded as being given by the sender and received by the addressee:
(1) if by delivery in person, when delivered to the addressee;
(2) if by post, 3 Business Days unless the addressee is in a
different country to the sender in which case 7 Business Days
from and including the date of postage; or
(3) if by facsimile transmission, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the addressee;
but if the delivery or receipt is on a day which is not a Business Day
or is after 4:00 pm (addressee's time) it is regarded as received at
9:00 am on the following Business Day;
(c) a facsimile transmission is regarded as legible unless the addressee
by telephone or facsimile contacts the sender within 1 Business Day of
receipt or is deemed received by reason of CLAUSE 15.2(b)(3) and
informs the sender that it is not legible.
15.3. GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of the State of Victoria.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of
the courts of that State.
15.4. WAIVERS
(a) Waivers of any right arising from a breach of this agreement or of any
Power arising upon default under this agreement must be in writing and
executed by the party granting the waiver.
(b) A failure or delay in exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right or Power arising from a breach
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of this agreement or on a default under this agreement as constituting
a waiver of that right or Power.
(d) A party may not rely on any conduct of another party as a defence to
exercise of a right or Power by that other party.
(e) This clause may not itself be waived except by writing executed by the
party granting the waiver.
15.5. VARIATION
A variation of any term of this agreement must be in writing and executed by
the parties.
15.6. CUMULATIVE RIGHTS
The rights, powers, authorities, discretions and remedies arising out of or
under this agreement are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the parties.
15.7. NON-MERGER AND SURVIVAL OF WARRANTIES
(a) Neither the Warranties, nor any other provision of this agreement
merges on Completion.
(b) The Warranties survive Completion of this agreement.
15.8. FURTHER ASSURANCES
Each party must do all things, and execute all further documents, necessary to
give full effect to this agreement.
15.9. ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties with respect
to the subject matter of this agreement and supersedes any prior negotiation,
arrangement, understanding or agreement with respect to the subject matter or
any term of this agreement.
15.10. ATTORNEYS
Each of the attorneys executing this agreement states that the attorney has no
notice of the revocation of that attorney's power of attorney.
15.11. COUNTERPARTS
This agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together will constitute one and the
same instrument.
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15.12. SEVERANCE
Any provision of this agreement which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of that
prohibition or enforceability. That does not invalidate the remaining
provisions of this agreement or affect the validity or enforceability of that
provision in any other jurisdiction.
EXECUTED by the parties as an agreement:
SIGNED
by BOLLE INC
in the presence of:
BOLLE
/s/ ▇▇▇▇▇ Ruituso /s/ Ian ▇. ▇. ▇▇▇▇▇▇
-------------------------------- ---------------------------
Witness BOLLE INC
▇▇▇▇▇ Ruituso
--------------------------------
Name (please print)
SIGNED
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ COLLICOAT
in the presence of:
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Collicoat
--------------------------------- -------------------------------
Witness ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ COLLICOAT
▇. ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name (please print)
SIGNED
by ▇▇▇▇ ▇▇▇▇▇ COLLICOAT
in the presence of:
/s/ Victoria Hautzigros /s/ ▇▇▇▇ ▇▇▇▇▇ Collicoat
---------------------------------- ----------------------------
Witness ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Hautzigros
----------------------------------
Name (please print)
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SIGNED
by ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of:
/s/ Victoria Hautzigros /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- -----------------------------
Witness ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Hautzigros
----------------------------------
Name (please print)
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SCHEDULE 1 - (WARRANTIES)
1. THE TRUST
(a) The Sellers are the legal owners of the ▇▇▇▇ ▇▇▇▇ Shares;
(b) The Sellers have full power and authority to transfer to the Buyer
good legal and equitable title to the ▇▇▇▇ ▇▇▇▇ Shares;
(c) The Sellers are empowered by the Trust Deed to enter into and perform
this agreement in their capacities as trustees of the Trust;
(d) All necessary resolutions, consents, approvals and other procedural
matters have been completed or obtained (including as required by the
Trust Deed) to enable the Sellers to enter into and perform this
agreement;
(e) The Trust has not been terminated nor has any event for the vesting of
the assets of the Trust occurred;
(f) The Sellers have taken all action necessary by them to authorize the
execution, delivery and performance of this agreement in accordance
with its terms.
2. CORPORATE
2.1 ISSUED SHARE CAPITAL AND ASSETS
(a) The authorised capital of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies is
accurately set out in Schedule 6.
(b) Subject to clause 1 of this schedule, the whole of the issued share
capital of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies is validly issued and
beneficially owned as disclosed in Schedule 6, free and clear of all
Third Party Interests.
(c) There are no options, agreements or understandings (whether
exercisable now or in the future and whether contingent or otherwise)
which entitle or may entitle any person to call for the issue,
purchase or transfer of any shares, debentures, notes, or other
securities in ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or create or
require to be created any Third Party Interest over any of the Shares.
(d) To the best of the Sellers knowledge all legal requirements relating
to the formation of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have been
complied with in full.
(e) Since the Relevant Date and, to the best of the Sellers knowledge,
prior to the Relevant Date all legal requirements
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relating to the issue of Shares by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies have been complied with in full.
(f) All of the Shares are fully paid (both as to par value and any
premium) and neither ▇▇▇▇ ▇▇▇▇ nor any of the ▇▇▇▇ ▇▇▇▇ Companies has
exercised any lien over any of its issued shares.
(g) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies collectively have as at the
Accounts Date net tangible assets of not less than A$2.55 million
excluding the assets, transactions and payments described in CLAUSES
8.2(c), (d), (e) AND (f).
2.2 ACCOUNTS
(a) The Accounts give a true and fair view of the financial position,
balance sheet and profit and loss account of the companies to which
they relate as at the Accounts Date and have been prepared in
accordance with the Accounting Standards:
(b) The Adjusted Accounts give a true and fair view of the financial
position, balance sheet and profit and loss account of the companies
to which they relate as at the Accounts Date adjusted to exclude the
assets, transactions and payments described in CLAUSES 8.2(c), (d),
(e) AND (f) and have otherwise been prepared in accordance with the
Accounting Standards.
2.3 BOOKS AND RECORDS
(a) The register of members, the statutory books of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇
▇▇▇▇ Companies and (since the Relevant Date and, to the best of the
Sellers' knowledge prior to the Relevant Date) all other accounts,
books, registers, financial and other records of whatsoever kind of
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies (whether required to be kept or
maintained by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies or not):
(i) are up to date;
(ii) have been fully and properly maintained and contain due and
accurate records of all matters required by law to be entered
therein;
(iii) do not contain or reflect any material inaccuracies or
discrepancies;
(iv) will (save for records delivered to the Buyer on Completion)
be in the possession of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies
upon Completion.
(b) With the exception of licenced software, the records, systems,
controls and information of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇
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Bass Companies are not recorded, maintained, operated, or otherwise
wholly or partly dependent on any means (including all means of access
thereto and therefrom) which are not under the exclusive ownership and
direct or indirect control of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies.
2.4 RETURNS ETC
After the Relevant Date, and to the Sellers' knowledge, prior to the Relevant
Date, all returns, particulars, resolutions, notices and other documents and
all announcements and disclosures required to be filed with, delivered or made
to the Australian Securities Commission, or other Governmental Agency in
respect of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have been properly filed,
delivered or made (as the case may require) within the applicable time
requirements, and were accurate and not misleading upon the lodgment, delivery
or making, thereof.
2.5 DIVIDENDS
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date all dividends or other distributions of profits by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇
▇▇▇▇ Companies since the date of incorporation of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies have been declared and paid or satisfied in accordance with all
applicable legal requirements.
2.6 MEMORANDUM AND ARTICLES OF ASSOCIATION
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date, ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have complied with their respective
Memorandum and Articles of Association in all respects.
3. CONTRACTS & RELATED MATTERS
3.1 CONTRACTS
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies are not a party to any agreement,
arrangement or understanding:
(a) which is unusual or which is outside their ordinary and proper course
of business;
(b) which in the reasonable opinion of the Sellers involves or is likely
to involve obligations or liabilities which are onerous or which by
reason of their nature or magnitude ought reasonably to be made known
to an intending purchaser of the Shares;
(c) which is in the reasonable opinion of the Sellers unprofitable or
likely to be unprofitable;
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(d) which in the reasonable opinion of the Sellers materially and
adversely effects its business or the Assets or which in the
reasonable opinion of the Sellers unreasonably restricts ▇▇▇▇ ▇▇▇▇ or
the ▇▇▇▇ ▇▇▇▇ Companies' freedom of action in relation to their normal
business activities;
(e) for the purchase of materials, supplies or equipment which is
substantially in excess of the requirements of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies for their normal operating purposes;
(f) which is a joint venture, shareholders' agreement, partnership or
other similar agreement, arrangement, or understanding except for an
agreement between ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Sports Limited (Number
121111)(a company incorporated in New Zealand). Bolle Asia Ltd and
Equus Tricots Limited and the Nerang River Plaza Shopping Centre joint
venture which is hereby acknowledged and accepted by the Buyer;
(g) which purports to control or otherwise affect the voting or
disposition of the shares of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies;
(h) for the provision of services other than in the ordinary course of
business of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies;
(i) except in the ordinary course of business pursuant to which any person
(including employees, agents, distributors or independent contractors
but excluding travel agents) is entitled to a commission,
remuneration, royalty or payment of any nature from ▇▇▇▇ ▇▇▇▇ or the
▇▇▇▇ ▇▇▇▇ Companies calculated by reference to the whole or part of
the turnover, profits or sales of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇
Companies;
(j) which is not terminable on 12 month's notice or less, without penalty
or compensation other than those set out in schedule 7 which is an
accurate list of all such agreements, arrangements and understandings;
(k) which is a loan, facility, or other similar agreement, arrangement or
understanding; or
(l) with any director or officer of the ▇▇▇▇ ▇▇▇▇ Companies, their
shareholders or their shareholders' families or any party controlled
by them or in which they have an interest except as provided by this
agreement or as set out in Schedule 8;
(m) pursuant to which, as at the Completion Date, any third party is
entitled or, to the Sellers' knowledge, likely by reason of a change
of ownership of the Shares, except for the Mortgage Debenture:
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(1) to terminate the agreement;
(2) to require the adoption of terms which are less favourable to
the ▇▇▇▇ ▇▇▇▇ Group than the current terms.
3.2 POWERS OF ATTORNEY
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have given no power of attorney or other
authority to any person express, implied or ostensible which is still
outstanding or effective to enter into any contract or commitment to do
anything on their behalf other than the authority of employees to enter into
routine trading contracts in the normal course of their duties.
3.3 OFFERS, TENDERS ETC
No offer, tender, quotation or the like given or made by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies and still outstanding is capable of giving rise to a contract
merely by the unilateral act of a third party which in the reasonable opinion
of the Sellers is or will be unprofitable and outside their ordinary course of
business.
3.4 ILLEGAL OR VOID CONTRACTS
To the Sellers' knowledge, no material Contract is void, voidable, illegal or
unenforceable, in whole or in part.
3.5 DEFAULTS UNDER CONTRACTS/LIABLE TO TERMINATION
With respect to each Contract:
(a) there has been no material delay, material negligence or material
default on the part of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or any
other party to a Contract and no event has occurred which with the
giving of notice or passage of time, may constitute a material
default;
(b) ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ Companies are under no obligation which cannot
readily be fulfilled, performed or discharged by it on time and
without undue or unusual expenditure or effort;
(c) in the reasonable opinion of the Sellers, ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies has the technical and other capabilities and the human and
material resources to enable it to fulfill, perform and discharge all
its outstanding obligations in the ordinary course of business; and
(d) The Sellers have not received any notice of termination of any
Contract and to the best of the Sellers' knowledge there
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are no grounds for rescission, avoidance, repudiation or termination.
4. ASSETS AND RENTAL ASSETS
4.1 STOCKS
With the exception of items sold by ▇▇▇▇ ▇▇▇▇ in the ordinary course of
business since the Accounts Date, ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies have
good and marketable title to all Stocks, free from any Third Party Interests
and without limitation free from any leases, hire or hire purchase agreements,
credit sale agreements, bills of sale or agreements for payment on deferred
terms and all Stocks are in the possession or control of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies and:
(a) the Stocks are in good condition and of normal merchantable quality
fit for the purpose for which they are intended to be used in the
Business; and
(b) the level of Stocks is not materially different from the levels in
existence as at the last monthly stocktake.
4.2 FIXED ASSETS
With the exception of the Rental Assets, ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies
have good and marketable title to all fixed and loose plant, machinery,
furniture, fixtures and fittings and equipment and all other tangible assets
owned by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or used in connection with the
Business and all fixed assets referred to in the Accounts and any additions
thereto made since the Accounts Date free from any Third Party Interests and
without limitation, free from any leases, hire or hire purchase agreements,
credit sale agreements, bills of sale or agreements for payment on deferred
terms and:
(a) all such assets are fully paid for and in the possession of ▇▇▇▇ ▇▇▇▇
or the ▇▇▇▇ ▇▇▇▇ Companies; and
(b) all such assets are in the same condition as at the date of execution
of this agreement (fair wear and tear excepted).
4.3 USE OF ASSETS GENERALLY
In relation to all assets owned, used, or which are otherwise in the possession
or control of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies:
(a) other than as disclosed in writing to the Buyer, the Sellers have not
received notice that the construction, positioning, use of any of the
assets, or the assets themselves contravene any relevant provisions of
any law or other requirement binding upon ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇
Companies; and
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(b) after the Relevant Date and, to the Sellers' knowledge, prior to the
Relevant Date no notice has been served on ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇
Companies or other circumstance arisen in respect of any such asset,
which in any way might impair, prevent, or otherwise interfere with
▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies' use of such asset.
4.4 ALL ASSETS DISCLOSED
Apart from the assets, transactions and payments described in CLAUSE 8.2(c),
(d), (e) AND (f), the assets disclosed in the Accounts together with such of
the Rental Assets as are not disclosed in the Accounts constitute all the
assets (other than as disclosed to the Buyer) owned or used by ▇▇▇▇ ▇▇▇▇, or
the ▇▇▇▇ ▇▇▇▇ Companies with the exception of Stocks acquired or disposed of in
the ordinary course of business since the Accounts Date.
4.5 ALL ASSETS NECESSARY
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies enjoy quiet possession of the Rental
Assets and have good and marketable title to all other assets necessary to
enable it to properly conduct the Business as such business has been conducted
prior to the date hereof.
4.6 RENTAL CONTRACTS
Annexures B, C, D, and E set out true and correct particulars of the material
terms of which the Sellers are aware of all the Rental Contracts, including,
where applicable, the amount of all rent or lease payments required to be paid
thereunder, the term thereof and the amount required to be paid (if applicable)
to enable ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies to obtain title to the Rental
Assets, free and clear of any Third Party Interests.
5. SECURITIES
5.1 MORTGAGES ETC
All of the assets of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies are owned by ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies free and clear of any Third Party Interests and
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have good and marketable title thereto.
5.2 THIRD PARTY INTERESTS
There is no Contract between ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies and any other
person pursuant to which ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies could become
obliged to confer a Third Party Interest with respect to any of ▇▇▇▇ ▇▇▇▇ or
the ▇▇▇▇ ▇▇▇▇ Companies' assets in favour of any person or pursuant to which a
Third Party Interest over any of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies' assets
could be created.
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5.3 NO GUARANTEES
▇▇▇▇ ▇▇▇▇ and each of the ▇▇▇▇ ▇▇▇▇ Companies have not entered into any
guarantee of any other person's obligations or liabilities or indemnified any
person against the acts or omissions of any third party.
5.4 NO THIRD PARTY SECURITIES
Other than as disclosed to the Buyer and to the knowledge of the Sellers, no
person has given any guarantee or security to any other person for any
liability of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies to that other person.
6. TRADING AND OPERATIONAL MATTERS
6.1 CLAIMS IN RELATION TO SERVICES PROVIDED
To the best of the Sellers' knowledge and belief, no services supplied by ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies have:
(a) been supplied in a negligent manner;
(b) failed to comply with the express or implied terms upon which services
were agreed to be provided by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or
the requirements of law; or
(c) been supplied in a manner which would entitle the recipient to make a
claim against ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies for which ▇▇▇▇ ▇▇▇▇
or the ▇▇▇▇ ▇▇▇▇ Companies may become liable except as occurs in the
ordinary course of the Business.
6.2 PRODUCT AND SERVICE CLAIMS
The Sellers are not aware of any deficiencies or defects in any products or
services supplied or provided by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies of which
they are aware may result in claims being made against ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies for which ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies may become liable
in the course of its business, after the date hereof.
6.3 OFFICIAL INVESTIGATIONS
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies are not the subject of any Official
investigation or inquiry and the Sellers are not aware of any facts which are
likely to give rise to any such investigation or inquiry.
6.4 CRIMINAL OFFENSES ETC
Neither ▇▇▇▇ ▇▇▇▇ nor the ▇▇▇▇ ▇▇▇▇ Companies, nor any of their Officers in
relation to ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies, has committed any criminal
offence or any tort or any breach of the
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requirements or conditions of any law or other requirement relating to ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or the conduct of the Business.
6.5 AUTHORISATIONS
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies possesses all necessary valid
Authorisations to enable it to conduct its business and operations as they are
presently being conducted and:
(a) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies are not in default with respect
to, nor in violation of any Authorisation;
(b) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have not received any notice of
non-compliance with any Authorisation; and
(c) there is no circumstance or fact involving ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇
Companies or their affairs (other than as a result of the sale and
purchase of the Shares under this agreement) which may result in the
revocation, suspension, cancellation or variation in any material
respect of any Authorisation.
7. TAXATION
7.1 FULL DISCLOSURE
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have lodged with the appropriate
Governmental Agency all Tax returns, reports and other information required to
be lodged by it in relation to Tax and all such returns, reports and other
information were accurate, complete and not misleading upon lodgment thereof.
7.2 NO TAX PROCEEDINGS
Except as disclosed to the Buyer, ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies:
(a) are not a party to any action or proceeding for the assessment or
collection of Tax;
(b) are not the subject of any dispute or disagreement with any
Governmental Agency in relation to Tax; and
(c) there is no fact or matter which would give rise to a reasonable
suspicion by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or the Sellers that
there are grounds which might give rise to any such action,
proceeding, dispute or disagreement.
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7.3 AGREEMENTS FOR EXTENSION OF TIME
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have not entered into any agreement which
is now, or may hereafter become effective extending the period of assessment or
collection of any Tax.
7.4 ALL TAX PAID
(a) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have paid all Tax which has been
assessed or which is or has become lawfully assessable upon them which
is otherwise due and payable on the due date for payment thereof and
are under no liability to pay any penalty or interest in connection
therewith.
(b) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have deducted all Tax required
to be deducted from any payments made by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇
Companies including (but not limited to) interest, royalties,
remuneration payable to employees or contractors and where necessary
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have accounted for any such Tax
deducted or collected in accordance with all relevant requirements.
7.5 ADEQUATE PROVISION IN ACCOUNTS FOR TAX
As at the Accounts Date ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies did not have any
Liability in respect of unpaid or unassessed Tax and ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇
▇▇▇▇ Companies are not and shall not at any date in the future become subject
to any such Tax on or in respect of or by reference to the profits, gains or
income of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or in respect of or by reference
to any transaction entered into by ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies as at
or for any period up to and including the Accounts Date, in excess of any
provision for Tax included in the Accounts.
7.6 TAX SINCE ACCOUNTS DATE
Since the Accounts Date no additional Liability for Tax has accrued to ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies otherwise than as a result of trading
activities in the ordinary course of the Business.
7.7 FRANKING
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have complied with the provisions of
part IIIAA of the Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cth) and have maintained
records of franking debits and franking credits which are sufficient for the
purposes of that Act.
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7.8 UNDERTAKINGS OR AGREEMENTS
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have complied in full with all
undertakings or agreements given to or entered into with any Governmental
Agency in relation to Tax.
7.9 STAMP DUTY
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date all documents to which ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies are a party:
(a) and are obliged by any law or agreement;
(b) or in the enforcement of which ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies
may be interested;
have been duly and sufficiently stamped in accordance with applicable stamp
duty legislation. After the Relevant Date and, to the Sellers' knowledge, prior
to the Relevant Date all stamp duty payable upon any transfer of any issued
shares of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies (other than as contemplated by
this agreement) has been duly paid.
7.10 RELIEF FROM STAMP DUTY
After the Relevant Date and, to the Sellers' knowledge, prior to the Relevant
Date, any relief obtained by ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies from stamp
duty has been properly obtained and no event has occurred as a result of which
any such duty from which ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies have obtained
relief has become payable.
8. INSOLVENCY EVENTS
8.1 LIQUIDATION/WINDING UP
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have not had a liquidator or provisional
liquidator appointed and ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have not passed
any resolution that it be wound up and no summons for the winding up of ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies has been presented.
8.2 EXECUTION
No execution, distress or similar process has been levied upon or against all
or any part of the business, assets or revenues of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇
Companies.
8.3 INSOLVENCY
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies are not unable, deemed by law to be
unable or otherwise admitted their inability to pay their respective debts as
they fall due for payment and ▇▇▇▇ ▇▇▇▇
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and the ▇▇▇▇ ▇▇▇▇ Companies have not suspended payments to their respective
creditors generally.
8.4 SCHEMES OF ARRANGEMENT
▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ Companies have not entered into any scheme of
arrangement, composition, assignment for the benefit of, or other arrangement
with its creditors or any class of creditors.
8.5 SECTION 459E NOTICES
The company has not received any demand under section 459E of the Corporations
Law that has not been satisfied in full.
8.6 RECEIVERS/MANAGERS/ETC
No Controller has been appointed over all or part of the business, assets or
revenues of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies.
8.7 STRIKING OFF
▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have not been struck off the register of
companies of any State or Territory or any other place or dissolved and there
is no action of which the Sellers are aware proposed by the Australian
Securities Commission or any other regulatory body to do so.
9. LITIGATION
9.1 ONGOING PROCEEDINGS ETC
Other than as disclosed in writing to the Buyer, neither ▇▇▇▇ ▇▇▇▇ nor the ▇▇▇▇
▇▇▇▇ Companies nor any person for whose acts or defaults ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies may be liable is engaged in any prosecution, litigation or
arbitration proceeding as plaintiff or defendant.
9.2 PROCEEDINGS PENDING OR THREATENED
Other than as disclosed in writing to the Buyer, there are no proceedings of
the kind described in CLAUSE 9.1 of Schedule 1 pending or threatened in respect
of which verbal or written communication has been given or received either by
or against ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies nor are there, to the knowledge
of the Sellers, any circumstances which might give rise to any such
proceedings.
9.3 UNSATISFIED JUDGMENTS
There is no unfulfilled or unsatisfied judgment or court order outstanding
against ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies or any of their assets.
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10. ACCOUNTS
10.1 PREPARED IN ACCORDANCE WITH THE ACCOUNTING STANDARDS
The Accounts have been (except as disclosed in note 1 to the Accounts) prepared
in accordance with the Accounting Standards.
10.2 CONSISTENT BASIS
The Accounts have been prepared on a basis which in all material respects is
consistent with the previous year's practice (except as disclosed in note 1 to
the Accounts).
10.3 TRUE AND ACCURATE
The Accounts are complete and accurate in all material respects and set out a
true and fair view of the financial position, state of affairs, assets,
liabilities, and profit and loss of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies for
the periods and dates to which, or as at which (as the case may require) they
respectively apply.
10.4 NO MATERIAL OMISSION
The Accounts do not omit to state a material fact required to be stated therein
or necessary to make them not misleading.
10.5 NO LIABILITIES NOT REQUIRED TO BE REFERRED TO
As at the Accounts Date ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies had no
liabilities not required by generally accepted accounting principles to be
referred to in the Accounts.
10.6 RECEIVABLES
To the knowledge of the Sellers, all debts owing to and amounts due to the ▇▇▇▇
▇▇▇▇ Group are collectable for their full amounts and are not subject to any
counterclaim or set-off except to the extent described or provided for in the
Accounts.
10.7 OUTSTANDING NOTES
To the knowledge of the Sellers, no cheque, promissory note or ▇▇▇▇ of exchange
drawn, accepted or endorsed by the ▇▇▇▇ ▇▇▇▇ Group is still outstanding, other
than cheques drawn to pay for obligations incurred by the ▇▇▇▇ ▇▇▇▇ Group in
the ordinary course of its ordinary business except to the extent described or
provided for in the Accounts.
10.8 INSURANCE CLAIMS
To the knowledge of the Sellers, there are no claims outstanding, pending,
threatened or capable of arising against the ▇▇▇▇ ▇▇▇▇ Group in respect of any
accident or injury which are not fully
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covered by insurance except to the extent described or provided for in the
Accounts.
11. INSURANCE
The assets of ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies set out in schedule 9 have
at all material times been insured against fire and other risks normally
insured against by persons carrying on the same class of business as the
Business and ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have at all material times
been adequately covered by public risk and product liability insurance.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 INTELLECTUAL PROPERTY
Parts A and B of Schedule 2 include an accurate and complete list of all
Intellectual Property, details of the states and territories in Australia or
such other places in which the Intellectual Property is registered and the
renewal dates for such registrations. All such registrations are valid and
current.
12.2 INFRINGEMENT
Except as previously notified in writing, the ▇▇▇▇ ▇▇▇▇ Group has unencumbered
and lawful right to use the Intellectual Property and the Sellers are not aware
of any infringement by any third party of the Intellectual Property and no
third party has alleged that the ▇▇▇▇ ▇▇▇▇ Group has infringed any intellectual
property rights of that third party.
12.3 OWNERSHIP OF INTELLECTUAL PROPERTY
All:
(a) intellectual property and all other rights resulting from intellectual
activities in the industrial, scientific, literary or artistic fields;
and
(b) any licences;
owned by the ▇▇▇▇ ▇▇▇▇ Group in relation to the conduct of the Business are
held by the ▇▇▇▇ ▇▇▇▇ Group. The Sellers will not after Completion own any
intellectual property relating to the Business.
13. PERSONNEL
13.1 DISCLOSURE OF OFFICES ETC
Schedule 3 sets out a complete and accurate description of the Officers of ▇▇▇▇
▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies and the public officer of ▇▇▇▇ ▇▇▇▇ and the
▇▇▇▇ ▇▇▇▇ Companies as at the date
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of this agreement and the Sellers shall notify the Buyer in writing of any
change or alteration thereto up to the Completion Date.
13.2 EMPLOYEES GENERALLY
Schedule 3 sets out true and accurate details as at the date of this agreement
of:
(a) the names and dates of birth and (except for casual employees) dates
of commencement of employment of all persons who are employees of ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies;
(b) all remuneration payable, including any bonus and commission
entitlements and any other benefits provided or which ▇▇▇▇ ▇▇▇▇ or the
▇▇▇▇ ▇▇▇▇ Companies are bound to provide (whether now or in the
future) to any such persons; and
(c) particulars of accrued long service leave, annual leave and sick leave
with respect to such employees.
13.3 COMPLIANCE WITH LAWS
To knowledge of the Sellers, ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies have
complied with all laws relating to their respective employees and their
conditions of work and employment and the ▇▇▇▇ ▇▇▇▇ Group is not involved in
any material industrial dispute with any employee or former employee and there
are no circumstances likely to give rise to any material industrial dispute.
13.4 MATERIAL EMPLOYMENT TERMS
Except as provided by this agreement and the Employment Agreements, ▇▇▇▇ ▇▇▇▇
and the ▇▇▇▇ ▇▇▇▇ Companies do not have any:
(a) existing service or other agreements, arrangements or understandings
with any Officers or employees of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies
which cannot be fairly terminated by not more than one calendar
months' notice without giving rise to a claim for damages or
compensation (other than in relation to the general manager of Bolle
Asia Ltd and as required by statute);
(b) share option or share incentive or similar schemes for any officers or
employees of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies;
(c) moneys payable to any Officer or employee of ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇
▇▇▇▇ Companies other than in respect of remuneration or emoluments of
employment;
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(d) present or contingent liability to pay damages or compensation for
loss of office or employment to any ex-officer or ex-employee of ▇▇▇▇
▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies and there are no payments due in
connection with the redundancy of any officer or employee and, to the
knowledge of the Sellers, no circumstances have arisen under which
▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies is likely to be required to make
any such payment (other than as disclosed to the Buyer); and
(e) obligation to reinstate or re-employ any ex-officer or ex-employee of
▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ who
is on parental leave.
13.5 CONSULTANTS ETC
No person has any agreement, arrangement or understanding with ▇▇▇▇ ▇▇▇▇ or the
▇▇▇▇ ▇▇▇▇ Companies pursuant to which that person acts as a consultant or in a
similar capacity for ▇▇▇▇ ▇▇▇▇ or the ▇▇▇▇ ▇▇▇▇ Companies whether on a full
time or a part time or retainer basis or otherwise.
13.6 SUPERANNUATION AND SIMILAR SCHEMES
(a) Schedule 10 sets out complete and accurate details of all Relevant
Schemes.
(b) ▇▇▇▇ ▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇ Companies do not have any unfunded or
contingent obligations with respect to any Relevant Scheme.
13.7 UNION AGREEMENTS
The ▇▇▇▇ ▇▇▇▇ Group is not a party to any agreement with a union or industrial
organization in respect of the Employees.
13.8 AWARDS
To the Sellers' knowledge and understanding, the industrial award applicable to
the Employees is the Wholesale Trade Industry Sector award.
14. PROPERTIES
14.1 OCCUPATION
The ▇▇▇▇ ▇▇▇▇ Group has no interest in land except its interest in the
Properties and has exclusive occupation and quiet enjoyment of the Properties
and holds all easements, rights, interests and privileges necessary or
appropriate for the conduct of the Business.
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14.2 NO BREACH
The ▇▇▇▇ ▇▇▇▇ Group is not in breach of or in default under any agreement or
covenant affecting the Properties.
14.3 NOTICES
The ▇▇▇▇ ▇▇▇▇ Group has not received notice from any third party in respect of
any of the Properties and, so far as it is aware, no proposal has been made:
(a) in respect of the compulsory acquisition or resumption of any part of
any of the Properties;
(b) requiring work to be done or expenditure to be made on or in respect
of any of the Properties;
(c) which may adversely affect any part of the Properties or their use of
them.
14.4 ENVIRONMENTAL LIABILITY
(a) There is no Environmental Liability affecting any of the Properties;
(b) To the Sellers' knowledge, there are no factors affecting any of the
Properties which are likely to give rise to an Environmental
Liability.
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