EXHIBIT 10.23
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AVAX AUSTRALIA HOLDINGS PTY LIMITED
AVAX Holdings
EASTPAC, INC.
Eastpac
JETONA PTY LTD
Jetona
AVT HOLDINGS LIMITED
AVT
TERMINATION DEED - SHAREHOLDERS AGREEMENT FOR AVAX AUSTRALIA AND AVAX
MANUFACTURING
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LAWYERS
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SYDNEY - MELBOURNE - BRISBANE - PERTH - CANBERRA - DARWIN
Liability limited by the Solicitors' Limitation of Liability Scheme approved
under the Professional Standards ▇▇▇ ▇▇▇▇ (NSW)
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.......................................2
1.1 Interpretation..............................................2
2. OPERATIVE PROVISIONS.................................................2
2.1 Termination.................................................3
2.2 Without Prejudice...........................................3
3. RELEASE OF LIABILITY.................................................3
4. GENERAL..............................................................3
4.1 Further assurance...........................................3
4.2 Governing Law...............................................3
4.3 Counterparts................................................4
4.4 Modification................................................4
4.5 Legal Costs.................................................4
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▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ JANUARY 1, 2002
PARTIES AVAX AUSTRALIA HOLDINGS PTY LIMITED, ACN ▇▇▇ ▇▇▇ ▇▇▇ ("AVAX")
and
EASTPAC, INC., ("EASTPAC")
and
JETONA PTY LTD, ACN 089 914 152 ("JETONA")
and
AVT HOLDINGS LIMITED, ARBN 065 824 302 (formerly known as
Neptunus International Holdings Limited), ("AVT"),
RECITALS
A. The parties to this Deed are all parties to the Shareholders Agreement,
dated 25 November 1999 ("SHAREHOLDERS AGREEMENT").
B. The parties have agreed to terminate the Shareholders Agreement on the
terms of this Deed.
THIS DEED PROVIDES
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1. DEFINITIONS AND INTERPRETATION
1.1 INTERPRETATION
In this Deed, including the Recitals, unless the context indicates a
contrary intention:
(a) words importing the singular number include the plural and vice
versa and words denoting a given gender include all other genders;
(b) the expression "persons" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(c) headings and underlining are for convenience only and do not
affect interpretation;
(d) references to parties, clauses, sub-clauses, schedules, exhibits
or annexures are references to parties, clauses, sub-clauses,
schedules, exhibits and annexures to or of this Deed and a
reference to this Deed includes any schedule, exhibit and
annexure;
(e) references to this Deed, or any other deed, agreement, instrument
or document include references to this Deed, or such other deed,
agreement, instrument or document as amended, novated,
supplemented, varied or replaced from time to time; and
(f) references to any person or to any party to this Deed shall
include that person's or party's executors, administrators,
successors and permitted assigns.
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2. CONDITION
2.1 This deed shall be conditional upon and shall take place
contemporaneously with:
(a) the execution of the Selective Share Buy-Back Agreement for
[5,200] shares in AVAX Australia Manufacturing Pty Limited held by
Eastpac;
(b) the execution of the Selective Share Buy-Back Agreement for
[4,926] shares in AVAX Australia Pty Limited held by Eastpac;
(c) the execution of the Royalty Agreement between Eastpac and AVAX
Australia Pty Ltd pursuant to which Eastpac receives a royalty on
products sold by AVAX Australia Pty Ltd; and
(d) the execution of the Termination Deed - NIHL Option Deed between
AVT and AVAX Technologies, Inc. pursuant to which those parties
agree to terminate the Option Deed between them dated 25 November
2001.
This deed shall also be conditional on:
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(a) AVAX Australia Pty Ltd obtaining shareholder approval pursuant to
Part 2J.1 of the CORPORATIONS ACT (Cth) 2001; and
(b) AVT obtaining shareholder approval for the transactions
contemplated by the agreements referred to in clause 2.1.
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3. OPERATIVE PROVISIONS
3.1 TERMINATION
(a) Subject to clause 2.1(b), the Shareholders Agreement is terminated
with immediate effect and each of the parties acknowledges and
agrees that it will be of no further force or effect whatsoever.
(b) The parties acknowledge and agree that, pursuant to clause 11.4 of
the Shareholders Agreement, the covenants contained at both clause
10 and clause 11 of the Shareholders Agreement, which are set out
in full in Annexure 1, apply world-wide and continue beyond the
termination of the Shareholders Agreement until they are released
in writing by all other parties.
(c) For the avoidance of doubt the parties confirm that after the
termination of the Shareholders Agreement the A and B Class shares
in AVAX Australia Pty Ltd and AVAX Australia Manufacturing Pty Ltd
shall be converted back to ordinary shares.
3.2 WITHOUT PREJUDICE
Notwithstanding clause 3.1 of this Deed, the parties acknowledge that
this Deed will operate without prejudice to any documents entered into
by them (other than the Shareholders Agreement) and any arrangements
contemplated in those documents.
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4. RELEASE OF LIABILITY
(a) Subject to complying with the provisions of this Deed, with effect
on and from the date of this Deed, each of the parties releases
and forever discharges each other party absolutely from all future
Claims that any party may have or, but for this Deed, might have
had against any other party arising out of, or in connection
directly or indirectly with, the performance of the Shareholders
Agreement, other than as referred to in clause 2.1(b).
(b) Clause 3(a) does not apply to release any party from any existing
breach of the Shareholders Agreement.
(c) In this clause 3, "Claims" means any claims, suits, demands,
causes of action (whether based in contract, tort or statute),
costs and other liabilities of any nature in respect of the
Shareholders Agreement.
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5. GENERAL
5.1 FURTHER ASSURANCE
The parties covenant that each party will do all acts and things and
execute all deeds and documents and other writings as are from time to
time reasonably required for the purposes of or to give effect to this
Deed including seeking or supporting any application made or required
to be made to any Governmental or regulatory authority, or any court.
5.2 GOVERNING LAW
This Deed will be governed by and construed in accordance with the laws
of the State of
New South Wales and the parties agree to submit to the
jurisdiction of the Courts of the State of
New South Wales.
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5.3 COUNTERPARTS
This Deed may be signed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same document.
5.4 MODIFICATION
This Deed may not be modified, amended, added to or otherwise varied
except by a document in writing signed by each of the parties or signed
on behalf of each party by a director under hand.
5.5 LEGAL COSTS
Each party must pay its own legal costs in relation to this Deed.
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EXECUTED as a deed.
THE COMMON SEAL of AVAX AUSTRALIA HOLDINGS LIMITED, (ACN ▇▇▇ ▇▇▇ ▇▇▇) was
affixed by the authority of the Board of Directors by or in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Signature of Director Signature of Secretary/other Director
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Name of Director in full Name of Secretary/other Director in full
EXECUTED BY EASTPAC, INC. by or in the
presence of:
/s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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Authorised Signatory (Secretary/Director) Signature of other Director
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Name of Secretary/Director in full Name of other Director in full
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ PTY LTD.,(ACN 089 914 152) was affixed by the
authority of the Board of Directors by or in the presence of:
/s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
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Signature of Director Signature of Secretary/other Director
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Name of Director in full Name of Secretary/other Director in full
EXECUTED by AVT HOLDINGS LIMITED
(ARBN 065 824 302) by or in the presence
of:
/s/ ▇▇▇▇▇▇ ▇.▇.▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇.▇.▇▇▇▇
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Signature of Director Signature of Secretary/other Director
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Name of Director in full Name of Secretary/other Director in full
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ANNEXURE 1: CLAUSE 10 AND CLAUSE 11 OF THE SHAREHOLDERS AGREEMENT
10. CONFIDENTIALITY
10.1 CONFIDENTIAL INFORMATION AND PROPRIETARY PROPERTY
In consideration for access to the Proprietary Property being granted
to NIHL Sub and the Companies, each of NIHL, NIHL Sub and NIHL
ServiceCo acknowledges and agrees that:
(a) the Confidential Information is disclosed to NIHL Sub (and NIHL
and NIHL ServiceCo, if applicable) in confidence and is and will
at all times be owned by AVAX Holdings or some Related Body
Corporate of AVAX Holdings (other than AVAX Australia or AVAX
Manufacturing) and it will not claim any ownership interest in the
Proprietary Property, either for itself or for AVAX Australia or
AVAX Manufacturing;
(b) it must, subject to the terms of this Agreement, hold all
Confidential Information and/or Proprietary Property in strict
confidence;
(c) it must not reveal any Confidential Information and/or Proprietary
Property to any person except strictly on a need-to-know basis to
persons approved in writing by AVAX Holdings and for the purposes
of this Agreement and to persons who have executed written
confidentiality undertakings at least as comprehensive as provided
in this Agreement, a copy of which will be provided to AVAX
Holdings;
(d) it will not use any Confidential Information and/or Proprietary
Property except for the purposes of this Agreement;
(e) it must take all reasonable steps to ensure that its officers,
employees, contractors and agents also observe the obligations of
these provisions; and
(f) it will not make, use, sell, duplicate, transfer or have made,
used, sold, duplicated or transferred to others (except AVAX
Holdings or any of its Related Bodies Corporate) or assist or
permit any other party to make, use, sell, duplicate, transfer any
product or process in whole or in part comprising or incorporating
any of the Proprietary Property without the prior written
permission of AVAX Holdings. Only after obtaining such written
permission from AVAX Holdings may NIHL Sub permit any third party
to have any access to or use any of the Proprietary Property.
10.2 DISCLOSURE
For the purposes of this Agreement, it is agreed that each of the
parties may disclose those terms of the Transaction Agreements and any
other agreements between AVAX Holdings, AVAX Australia, AVAX
Technologies, AVAX International IP Holdings Inc and the Originators
relating to the Licensed Products as is necessary to enable them to
observe their legal obligations, whether arising under the Corporations
Law, the Official Listing Rules of the Australian Stock Exchange
Limited or the United States Securities Exchange Commission or
otherwise, provided that the party first provides written notice to
each of the other parties of the exact terms of the intended disclosure
and obtains the written consent of each of the other parties to the
disclosure, which consent will not be unreasonably withheld.
11. CONFIDENTIALITY OF COMMERCIAL CONTACTS
11.1 Subject to the provisions of clause 10, each of the parties covenant
and agree with each other that:
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(a) an Introduction may lead to Contacts;
(b) the Contacts are the result of the acts of the other party and are
the property of the other party and, unless authorised in writing
by the other party, should not be used for any purpose other than
in relation to the Business; and
(c) in consideration of the Introduction and the disclosure of the
Confidential Information they will not disclose any Contact or
attempt to negotiate or negotiate or attempt to participate or
participate in any transaction with any Contact unless authorised
in writing by the other party.
11.2 Each of the parties covenant and agree with each other that in
consideration of the Introduction and disclosure of the Confidential
Information, unless authorised in writing by each other party they
will:
(a) keep absolutely secret the fact of supply and all of the
Confidential Information received by it;
(b) not make or cause to be made any copy, duplicate, replica,
summary, precis or otherwise make or construct any document,
material or thing similar to any of the Confidential Information;
(c) not allow any other person, firm, corporation or other entity
whatsoever to view, read, encode, copy, record whether on computer
disk, tape or other electronic or mechanical means, or otherwise,
to come into contact with the Confidential Information;
(d) not discuss in detail or general the fact that the Confidential
Information has been supplied, the purpose of the supply of the
Confidential Information or the contents of the Confidential
Information with any person, firm, corporation or other entity
whatsoever;
(e) return each copy of the Confidential Information supplied by the
other party as and when required to do so, without retaining any
copies or allowing any other entity to do so; and
(f) not utilise in any way directly or indirectly any Confidential
Information supplied by the other party to its financial,
managerial or strategic benefit or to the financial, managerial
and strategic detriment of the other party however such detriment
may arise.
11.3 Each of the parties must procure that its Related Bodies Corporate,
officers, employees, agents and advisers (whether or not still
employed or engaged in that capacity) do not do or omit to do
anything which, if done or omitted to be done by them, would be a
breach of their obligations under this Agreement.
11.4 Each of the parties covenant and agree with each other that their
covenants in accordance with clause 10 and this clause 11 apply
world-wide and will continue beyond the termination of this
Agreement until they are released in writing by all other parties.
11.5 Each of the parties acknowledges that damages are not a sufficient
remedy for any other party for any breach of clauses 10 and 11
hereof and the party whose rights under clauses 10 and 11 hereof are
breached is entitled to specific performance or injunctive relief
(as appropriate) as a remedy for any such breach or threatened
breach by any other party in addition to any other remedies
available at equity or in law.
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