Delaware
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27-2909425
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(State or other jurisdiction
of incorporation)
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(IRS Employer
Identification No.)
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
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Entry into a Material Definitive Agreement. |
Item 2.01.
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Completion of Acquisition or Disposition of Assets. |
Item 2.03.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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Item 7.01.
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Regulation FD Disclosure. |
Item 9.01.
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Financial Statements and Exhibits. |
Exhibit No.
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Description
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|
2.1
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Sale and Purchase Deed relating to the sale and purchase of MedHealth Holdings Pty Limited dated August 31, 2012 among EW Pacific Pty Ltd, the shareholders of MedHealth Holdings Pty Limited set forth therein, and certain additional restrained parties set forth therein.*
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2.2
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Additional Sellers Deed relating to the sale and purchase of MedHealth Holdings Pty Limited dated August 31, 2012 among EW Pacific Pty Ltd and certain minority shareholders of MedHealth Holdings Pty Limited.*
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10.1
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Fourth Amendment to Credit Agreement and Consent dated as of August 27, 2012, by and among ExamWorks Group, Inc., as Borrower, Bank of America, N.A., as Administrative Agent, and the Guarantors and Lenders party thereto, amending Credit Agreement dated as of October 10, 2010 (as amended).
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99.1
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Press Release dated August 31, 2012
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*
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Schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplemental copies of any of the omitted schedules to the Securities and Exchange Commission upon request.
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ExamWorks Group, Inc. | |||
Date: August 31, 2012
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By:
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/s/ J. Miguel Fernandez de Castro | |
J. Miguel Fernandez de Castro | |||
Senior Executive Vice President and | |||
Chief Financial Officer |
Exhibit No.
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Description
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2.1
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Sale and Purchase Deed relating to the sale and purchase of MedHealth Holdings Pty Limited dated August 31, 2012 among EW Pacific Pty Ltd, the shareholders of MedHealth Holdings Pty Limited set forth therein, and certain additional restrained parties set forth therein.*
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2.2
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Additional Sellers Deed relating to the sale and purchase of MedHealth Holdings Pty Limited dated August 31, 2012 among EW Pacific Pty Ltd and certain minority shareholders of MedHealth Holdings Pty Limited.*
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10.1
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Fourth Amendment to Credit Agreement and Consent dated as of August 27, 2012, by and among ExamWorks Group, Inc., as Borrower, Bank of America, N.A., as Administrative Agent, and the Guarantors and Lenders party thereto, amending Credit Agreement dated as of October 10, 2010 (as amended).
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99.1
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Press Release dated August 31, 2012
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*
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Schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplemental copies of any of the omitted schedules to the Securities and Exchange Commission upon request.
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Share Sale and Purchase Deed
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||
RA Investments I Comm. V.
Riverside Capital Appreciation Fund V Investments Comm. V.
Robyn Walsh
(Sellers)
Stuart Baxter
Simon Feiglin
(Additional Restrained Parties)
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||
EW Pacific Pty Ltd
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||
(Buyer)
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||
relating to the sale and purchase of
MedHealth Holdings Pty Limited
ACN 141 218 215
(Company)
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||
Jones Day
Level 41, Aurora Place
88 Phillip Street
Sydney NSW 2000
Tel: 61 2 8272 0500
Fax: 61 2 8272 0599
www.jonesday.com
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Share Sale and Purchase Deed
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Operative provisions | 5 |
1.
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INTERPRETATION
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5
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1.1
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Definitions
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5
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1.2
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Interpretation
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16
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1.3
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Knowledge and Awareness
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16
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1.4
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Reasonable endeavours
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17
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1.5
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Cleared funds
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17
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2.
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SALE OF SHARES
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17
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2.1
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Sale and purchase
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17
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2.2
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No partial sale
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17
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2.3
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Waiver of pre-emption rights
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17
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3.
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PURCHASE PRICE
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17
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4.
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COMPLETION
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17
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4.1
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Completion date and place
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17
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4.2
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Sellers’ obligations
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17
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4.3
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Buyer's obligations
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18
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4.4
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Simultaneous Completion and interdependency
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19
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4.5
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Net Working Capital Target Amount
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19
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4.6
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Leasehold Property arrangements
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19
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5.
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ADJUSTMENT OF PURCHASE PRICE
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19
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5.1
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Preparation of Draft Completion Working Capital Statement
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19
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5.2
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Sellers to cooperate
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19
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5.3
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Content
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20
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5.4
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Delivery of Draft Completion Working Capital Statement
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20
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5.5
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Sellers’ response
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20
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5.6
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Dispute Procedure
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20
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5.7
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Acceptance and Deemed Acceptance
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20
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5.8
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Dispute Resolution Procedure
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20
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5.9
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Referral to Independent Expert
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21
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5.10
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Independent Expert procedure
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22
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5.11
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Working Capital Adjustment in favour of Sellers
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23
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5.12
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Working Capital Adjustment in favour of Buyer (less than Retained Cash Amount)
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23
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5.13
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Working Capital Adjustment in favour of Buyer (greater than Retained Cash Amount)
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23
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6.
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WARRANTIES AND INDEMNITIES
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23
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6.1
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Buyer’s warranties
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23
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6.2
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Sellers’ Warranties and indemnities
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24
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6.3
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Reliance by Buyer
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24
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6.4
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Tax Indemnity
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24
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6.5
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Independent Contractor Exclusion
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24
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6.6
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Limitation of Riverside’s Liability
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24
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6.7
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IME Indemnity
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24
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6.8
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Tax gross up
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25
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7.
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LIMITATION ON LIABILITIES
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25
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7.1
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General limitations
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25
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7.2
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Additional Tax Liability Limitations
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27
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7.3
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Contingent Claims
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27
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7.4
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Use of deductions
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28
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7.5
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Minimum claim amount
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28
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7.6
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Maximum claim amount
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28
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7.7
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Mitigation
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28
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7.8
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Related Benefits
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28
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7.9
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No Double Recovery
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28
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7.10
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Limitation of Remedy
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29
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7.11
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Refund of Purchase Price
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29
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7.12
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Independent limitations
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29
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7.13
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Excluded Warranties
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29
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7.14
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Circumstances where limitations do not apply
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29
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7.15
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Excluded Conduct
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29
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7.16
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General exclusion of Sellers’ liability
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30
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8.
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DIRECTORS’ AND OFFICERS’ INSURANCE
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30
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9.
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PROPORTIONATE LIABILITY
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30
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9.1
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Exclusion of proportionate liability provisions
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30
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9.2
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Sellers not to apply Proportionate Liability Provisions
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30
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10.
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W & I POLICY
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31
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10.1
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Buyer acknowledgements
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31
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10.2
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Buyer’s warranties
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31
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10.3
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Limitation of Liability
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32
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10.4
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Bar to proceedings
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33
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11.
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CLAIMS PROCEDURE
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33
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11.1
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Written notice of Claims
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33
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11.2
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Claim Dispute
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33
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11.3
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Recovery Amount
|
34
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12.
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RECORDS RETENTION
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34
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13.
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CONFIDENTIALITY
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35
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13.1
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Primary obligation
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35
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13.2
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Permitted disclosure
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35
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13.3
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Security and control
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35
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14.
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RESTRAINTS
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35
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14.1
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Sellers’ restraint
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35
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14.2
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Exceptions
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36
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14.3
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Injunctive Relief
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37
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14.4
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Acknowledgement
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37
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14.5
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Independent restraints
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38
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15.
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ADDITIONAL RESTRAINED PARTIES RESTRAINTS
|
38
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15.1
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Additional Restrained Parties Restraint
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38
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15.2
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Exceptions
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39
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15.3
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Injunctive Relief
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40
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15.4
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Additional Restrained Parties Acknowledgement
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40
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15.5
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Independent restraints
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40
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15.6
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Riverside Warranty
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40
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15.7
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Riverside Indemnity
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40
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16.
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TAX MATTERS
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41
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16.1
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Preparation of Pre-Completion Returns by Sellers
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41
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16.2
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Buyer’s obligations relating to Pre-Completion Returns
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42
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16.3
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Preparation of Overlap Returns by Buyer
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42
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16.4
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Sellers obligations in relation to Overlap Returns
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42
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16.5
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Sellers may review Overlap Returns in relation to Tax
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42
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16.6
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Tax audits
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43
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16.7
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Confidentiality
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43
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16.8
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Code § Election Notice
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43
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17.
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DISPUTE RESOLUTION
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43
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17.1
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Dispute
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43
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17.2
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General Dispute Notice
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43
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17.3
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Parties to try to settle Dispute
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44
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17.4
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Arbitration
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44
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17.5
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Relief
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44
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18.
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GST
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45
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18.1
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Interpretation
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45
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18.2
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General
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45
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18.3
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GST payable
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45
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18.4
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Recovery of GST payable
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45
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18.5
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Reimbursement or indemnity payment
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45
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18.6
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Variation of GST
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45
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19.
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COSTS AND STAMP DUTY
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46
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19.1
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Costs
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46
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19.2
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Stamp duty
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46
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20.
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NOTICES
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46
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20.2
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Change of address
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47
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20.3
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No effect on other rights
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47
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21.
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MISCELLANEOUS
|
47
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21.1
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Alterations
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47
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21.2
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Approvals and consents
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47
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21.3
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Assignment
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47
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21.4
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Survival
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48
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21.5
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Counterparts
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48
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21.6
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No merger
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48
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21.7
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Further action
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48
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21.8
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Waiver
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48
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21.9
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Severance
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48
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21.10
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Power of attorney
|
48
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21.11
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Entire agreement
|
48
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22.
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GOVERNING LAW AND JURISDICTION
|
48
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22.1
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Law of Victoria
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48
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22.2
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Parties to submit to jurisdiction
|
49
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SCHEDULE 1
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: THE SELLERS AND ADDITIONAL SELLERS
|
50
|
SCHEDULE 2
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: FUNDS FLOW
|
51
|
SCHEDULE 3
|
: WARRANTIES |
52
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SCHEDULE 4
|
: BUYER'S WARRANTIES |
63
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SCHEDULE 5
|
: THE COMPANY and EACH SUBSIDIARY |
64
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SCHEDULE 6
|
: MATERIAL CONTRACTS |
66
|
SCHEDULE 7
|
: TOP 25 CUSTOMERS |
68
|
SCHEDULE 8
|
: LEASEHOLD PROPERTIES |
69
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SCHEDULE 9
|
: INTELLECTUAL PROPERTY |
71
|
SCHEDULE 10
|
: PLANT AND EQUIPMENT |
73
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SCHEDULE 11
|
: NET WORKING CAPITAL TARGET STATEMENT |
74
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SCHEDULE 12
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: ACCOUNTING PRINCIPLES |
75
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SCHEDULE 13
|
: EMPLOYEES |
78
|
SCHEDULE 14
|
: RETAINED HEALTHCARE CONSULTANTS |
79
|
SCHEDULE 15
|
: DUE DILIGENCE INDEX |
80
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SCHEDULE 16
|
: DUE DILIGENCE RESPONSES |
81
|
SCHEDULE 17
|
: DISCLOSURE LETTER |
82
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SCHEDULE 18
|
: KEY EMPLOYEES SUBJECT TO EMPLOYMENT AGREEMENTS |
83
|
SCHEDULE 19
|
: RIVERSIDE PUBLIC ANNOUNCEMENT TEMPLATE |
84
|
SCHEDULE 20
|
: BUYER PUBLIC ANNOUNCEMENT TEMPLATE |
85
|
SCHEDULE 21
|
: W&I INSURANCE |
86
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Signing page
|
87
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Date
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31 August 2012
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RA Investments I Comm. V. of 7, Avenue Lloyd George, Brussels, 1000, Belgium
Riverside Capital Appreciation Fund V Investments Comm. V. of 7, Avenue Lloyd George, Brussels, 1000, Belgium
Robyn Walsh of Unit 1405, 2 Albert Road, Melbourne, Victoria, Australia, 3004
(together the Sellers)
Stuart Baxter of 31110 Thomas Avenue, #319, Dallas, Texas, 75204, USA
Simon Feiglin of 1 Rose Hill Avenue, Caulfield North, Victoria, Australia, 3161.
(together the Additional Restrained Parties)
EW Pacific Pty Ltd (ACN 160 098 162) of Level 6, 486 Albert Street, East Melbourne, VIC, 3002
(the Buyer)
|
The Sellers and the Additional Sellers together own the entire issued share capital of the Group in the proportions set out in Schedule 1.
|
B
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The Sellers and the Additional Sellers have agreed to sell and the Buyer has agreed to purchase the Company on and subject to the terms and conditions set out in this Deed and in a separate deed to which the Additional Sellers and the Buyer are parties.
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C
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The Additional Restrained Parties have agreed to the restraint set out in clause 15 and are parties to this Deed for that purpose only.
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1.
|
INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
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the audited profit and loss account for the Group for the 12 month period ending 30 June 2011; and
|
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(b)
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the audited balance sheet of the Group as at 30 June 2011,
|
|
(a)
|
the provision of administration of independent medical reports for the purpose of assessing personal injury or injured workers claims from a medical and legal perspective;
|
|
(b)
|
the provision or administration of medico-legal reports and IMEs, including without limitation through the use of Healthcare Consultants;
|
|
(c)
|
the identification and credential checking of doctors and other medical specialists for the purpose of assessing their suitability to provide medico-legal reports and conducting IMEs;
|
|
(d)
|
medical record retrieval and transcription or medical report services for the purpose of providing medico-legal reports to clients;
|
|
(e)
|
medical record organisation services for the purpose of providing medico-legal reports to clients; and
|
|
(f)
|
the development or provision of software or technology services to facilitate any of the foregoing (a) through (e) for the purpose of providing medico-legal reports and conducting IMEs.
|
|
(a)
|
fixed and floating charge dated 29 March 2010 between the Company (as chargor) and CBA (as chargee);
|
|
(b)
|
fixed and floating charge dated 29 March 2010 between MLCOA (as chargor) and CBA (as chargee);
|
|
(c)
|
fixed and floating charge dated 8 December 2011 between Next Health Pty Ltd (ACN 057 214 990) (as chargor) and CBA (as chargee);
|
|
(d)
|
Share Mortgage dated 29 March 2010 between the Company (as mortgagor) and CBA (as mortgagee); and
|
|
(e)
|
Share Mortgage dated 10 November 2011 between MLCOA (as mortgagor) and CBA (as mortgagee).
|
|
(a)
|
a bank cheque drawn by a bank authorised to carry on banking business in Australia as defined in the Banking Act 1959 (Cth); or
|
|
(b)
|
telegraphic transfer of immediately available funds to an account or accounts nominated by the party to whom the payment is due.
|
|
(a)
|
was in the lawful possession of the receiving party before the disclosing party had any dealings with the receiving party or was independently generated by the receiving party or on its behalf;
|
|
(b)
|
is in the public domain otherwise than as a result of a breach of clause 13 or any other obligation of confidentiality owed to the disclosing party; or
|
|
(c)
|
was legally and properly obtained by the receiving party from any other source without restriction on further disclosure,
|
|
(a)
|
the Due Diligence Materials;
|
|
(b)
|
the Due Diligence Responses; and
|
|
(c)
|
the Disclosure Letter.
|
|
(a)
|
the Title or Capacity Warranties; and
|
|
(b)
|
the Corresponding Indemnity to the extent that it provides indemnification for a breach of the Title or Capacity Warranties.
|
|
(a)
|
any debt owing by the Group Companies other than trade debts incurred in the ordinary course of business;
|
|
(b)
|
any borrowings or other indebtedness owing by any Group Company under any bank facility, overdraft, bond, note, debenture, acceptance credit, sale and lease back or other arrangement providing financial accommodation of any description;
|
|
(c)
|
any guarantee (including any guarantee, bond, security deposit, letter of credit or suretyship) in relation to the obligations of any person provided by a Group Company; or
|
|
(d)
|
any option, swap, exchange or other derivative or hedging transaction,
|
|
(a)
|
the Company;
|
|
(b)
|
MLCOA; and
|
|
(c)
|
Next Health Pty Ltd (ACN 057 214 990).
|
|
(a)
|
during the period that Riverside controlled the Company and MLCOA; and
|
|
(b)
|
who entered into a deed of access, insurance and indemnity with the Company and MLCOA before Completion,
|
|
(a)
|
a person is or states that the person is unable to pay all the person’s debts as and when they become due and payable;
|
|
(b)
|
a person is taken or must be presumed to be insolvent or unable to pay its debts under any applicable Law;
|
|
(c)
|
an application is made and not withdrawn within seven days, or an order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
|
|
(d)
|
an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days;
|
|
(e)
|
a receiver or receiver and manager, or controller, is appointed in respect of any property of a corporation;
|
|
(f)
|
a corporation is deregistered under the Corporations Act or notice of its proposed deregistration is given to the corporation;
|
|
(g)
|
a distress, attachment or execution is levied or becomes enforceable against any material property of a person;
|
|
(h)
|
a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition, or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving all of them;
|
|
(i)
|
a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven days or a person presents a petition against himself or herself;
|
|
(j)
|
a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth); or
|
|
(k)
|
anything analogous to or of a similar effect to anything described above or under the Law of any relevant jurisdiction occurs in respect of a person.
|
|
(a)
|
patents, designs, trade marks and service marks (whether registered or unregistered) and any applications for, or rights to apply for, registration of any patent, design, trade mark or service mark;
|
|
(b)
|
circuit layout rights;
|
|
(c)
|
copyright (including copyright in software, websites, databases and advertising and other promotional materials);
|
|
(d)
|
all rights to have information (including trade secrets, know-how, operating procedures and technical information) kept confidential; and
|
|
(e)
|
all other rights or protections having similar effect anywhere in the world.
|
|
(a)
|
the unaudited profit and loss account for the Group for the 12 month period ending 30 June 2012; and
|
|
(b)
|
the unaudited balance sheet of the Group as at 30 June 2012,
|
|
(a)
|
the unaudited profit and loss account for the Group for the 12 month period ending 31 May 2012; and
|
|
(b)
|
the unaudited balance sheet of the Group as at 31 May 2012,
|
|
(a)
|
a charge or lien arising in favour of a Governmental Agency by operation of statute unless there is default in payment of money secured by that charge or lien;
|
|
(b)
|
any mechanics’, workmen’s or other like lien arising in the ordinary course of business;
|
|
(c)
|
any retention of title arrangement undertaken in the ordinary course of day-to-day trading; or
|
|
(d)
|
any interest of the kind referred to in section 12(3) of the PPSA where the transaction concerned does not, in substance, secure payment or performance of an obligation.
|
|
(a)
|
the date which is 4 years after the Completion Date, but if that is not enforceable, then;
|
|
(b)
|
the date which is 3 years after the Completion Date, but if that is not enforceable, then;
|
|
(c)
|
the date which is 2 years after the Completion Date, but if that is not enforceable, then;
|
|
(d)
|
the date which is 1 year after the Completion Date.
|
|
(a)
|
in relation to a Seller or Additional Seller (as applicable), the number of ordinary shares or class A preference shares in the Company (as applicable) set out next to the name of that Seller or Additional Seller in the second column of Schedule 1; or
|
|
(b)
|
all the ordinary shares and class A preference shares in the Company held by the Sellers and Additional Sellers.
|
|
(a)
|
in respect of the Leasehold Property at Level 6, 486 Albert Street, East Melbourne, Victoria (Volume 05788 Folio 534), on 29 May 2012;
|
|
(b)
|
in respect of the Leasehold Property at Adelaide Day Surgery Centre, Level 2, 18 North Terrace, Adelaide, South Australia (Volume 5340 Folio 619), on 29 May 2012;
|
|
(c)
|
in respect of the Leasehold Property at Level 13, 116 Adelaide Street, Brisbane Queensland (Lot 5 on RP 40997), on 29 May 2012;
|
|
(d)
|
in respect of the Leasehold Property at Suite 3, Level 2, Equinox 1, 70 Kent Street, Deakin Australian Capital Territory (Volume 1978 Folio 33), on 1 June 2012;
|
|
(e)
|
in respect of the Leasehold Property at Level 1, 38 Montepelier Retreat, Battery Point, Tasmania (Lot 1 on Plan 124067), on 29 May 2012;
|
|
(f)
|
in respect of the Leasehold Property at Level 2, 44 Market Street, Sydney, New South Wales (1/600888), on 1 June 2012;
|
|
(g)
|
in respect of the Leasehold Property at 383 Scarborough Beach Road, Osborne Park, Western Australia, on 3 August 2012; and
|
|
(h)
|
in respect of the Leasehold Property at Suites 2 and 3, 178 Cambridge Street, Wembley Western Australia (Lot 2 and Lot 3 on SP 53635) on 29 May and 1 August 2012 respectively.
|
1.2
|
Interpretation
|
|
(a)
|
headings are included for convenience only and do not affect the interpretation of this Deed;
|
|
(b)
|
the singular includes the plural and vice versa, and a gender includes other genders;
|
|
(c)
|
another grammatical form of a defined word or expression has a corresponding meaning;
|
|
(d)
|
a reference to “this Deed” means this document including the schedules and appendices to it;
|
|
(e)
|
a reference to a clause, paragraph, schedule or appendix is to a clause or paragraph of, or schedule or appendix to, this Deed, and a reference to this Deed includes any schedule or appendix;
|
|
(f)
|
a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
|
|
(g)
|
a reference to $ or dollars is to Australian currency;
|
|
(h)
|
a reference to time is to Melbourne, Australia local time;
|
|
(i)
|
"including", "includes" and any similar expression are not words of limitation;
|
|
(j)
|
a reference to a party is to a party to this Deed, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
|
|
(k)
|
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
|
|
(l)
|
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
|
|
(m)
|
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Deed or any part of it; and
|
|
(n)
|
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
|
1.3
|
Knowledge and Awareness
|
|
(a)
|
the actual knowledge, awareness and belief of Robyn Walsh, Adam Goldberger, Suzan Drew or an Additional Restrained Party; and
|
|
(b)
|
all facts of which Robyn Walsh, Adam Goldberger, Suzan Drew or an Additional Restrained Party would have been aware at the relevant time had that person made due and careful enquiries of all employees of the Group who might reasonably be expected to have knowledge or awareness of relevant facts.
|
1.4
|
Reasonable endeavours
|
|
(a)
|
any obligation to commence any legal action or proceeding against any person to perform or provide the thing or to procure that thing is done or happens; or
|
|
(b)
|
to pay any money or to provide any financial compensation, valuable consideration or any other incentive to or for the benefit of any person except for payment of any applicable fee for lodgment or filing of any relevant application with any Governmental Agency.
|
1.5
|
Cleared funds
|
2.
|
SALE OF SHARES
|
2.1
|
Sale and purchase
|
2.2
|
No partial sale
|
2.3
|
Waiver of pre-emption rights
|
3.
|
PURCHASE PRICE
|
4.
|
COMPLETION
|
4.1
|
Completion date and place
|
4.2
|
Sellers’ obligations
|
|
(a)
|
the Sellers must:
|
|
(i)
|
deliver to the Buyer transfers of the Shares duly executed by each of the Sellers in respect of the Shares held by them in favour of the Buyer together with the share certificates for such Shares;
|
|
(ii)
|
confirm in writing that all the statutory and other books and Records of each Group Company and its certificate of incorporation and common seals (if any) are at the Premises or in offsite storage (as applicable); and
|
|
(iii)
|
deliver to the Buyer evidence of the release of the CBA Securities;
|
|
(b)
|
the Sellers must deliver to the Buyer a counterpart of each of the Key Employee Employment Agreements duly executed by each of the Key Employees;
|
|
(c)
|
the Sellers must deliver to the Buyer a written resignation from Stuart Baxter as a director of each of the Group Companies effective as at Completion;
|
|
(d)
|
the Sellers must procure that circular resolutions of each Group Company effective under their constitutions and at Law are passed to:
|
|
(i)
|
in respect of the Company only, approve the transfers of the Shares and to register (subject only to due stamping), in the register of members, the Buyer as the holder of the Shares;
|
|
(ii)
|
appoint the persons nominated by the Buyer and notified in writing to the Company prior to Completion as directors and secretary of each Group Company, with such appointments to take effect on Completion; and
|
|
(iii)
|
accept the resignation of Stuart Baxter as a director referred to in clause 4.2(c) with effect from the date on which the resolutions are passed;
|
|
(e)
|
the Sellers must deliver a CD or zip file to the Buyer which contains the Due Diligence Materials and the Due Diligence Responses;
|
|
(f)
|
the Sellers must deliver to the Buyer a screenshot or similar document showing that the Retained Cash Amount is held in a bank account operated by a Group Company;
|
|
(g)
|
the Sellers must deliver to the Buyer a screenshot or similar document showing that the Bank Guarantee Amount is held in a bank account operated by a Group Company;
|
|
(h)
|
the Sellers must deliver to the Buyer a signed Indemnity and Access Amendment Deed duly executed by each of the parties to the Indemnity and Access Amendment Deed;
|
|
(i)
|
the Seller must deliver to the Buyer a letter confirming that there have been no material changes to the information disclosed in Schedules 7, 10, 13 and 14 since the Schedule Date.
|
4.3
|
Buyer's obligations
|
|
(a)
|
in accordance with a direction by the Sellers, pay $91,992,869.84 in the amounts and to the persons specified in Schedule 2.
|
|
(b)
|
deliver to the Sellers written consents of each person nominated by the Buyer to act as a director or company secretary of each Group Company;
|
|
(c)
|
deliver to the Sellers evidence to the Sellers’ reasonable satisfaction that:
|
|
(i)
|
a W&I Policy has been entered into by the Buyer and the Warranty Insurer in accordance with clause 10; and
|
|
(ii)
|
the W&I Policy has either taken effect or will unconditionally take effect on Completion.
|
4.4
|
Simultaneous Completion and interdependency
|
|
(a)
|
The sale and purchase of the Shares held by each Seller and Additional Seller must occur simultaneously.
|
|
(b)
|
The parties’ obligations at Completion are interdependent so that a thing done at Completion by a party is conditional on and is not taken as done until all things required at Completion are done.
|
4.5
|
Net Working Capital Target Amount
|
|
(a)
|
Subject to clause 4.5(b), the Sellers will use their reasonable endeavours to ensure that the Completion Working Capital Amount will be close to the Net Working Capital Target Amount at the Completion Date.
|
|
(b)
|
Nothing in clause 4.5(a) requires the Sellers to take any action that would not otherwise be in the ordinary course of the Business.
|
4.6
|
Leasehold Property arrangements
|
|
(a)
|
Level 6, 486 Albert Street, East Melbourne, Victoria;
|
|
(b)
|
Suite 201, Level 2, 44 Market Street, Sydney, New South Wales;
|
|
(c)
|
Suite 3, Level 2, Equinox 1, 70 Kent Street Deakin, Australian Capital Territory;
|
|
(d)
|
Level 13, 116 Adelaide Street, Brisbane, Queensland;
|
|
(e)
|
386 Scarborough Beach Road, Osborne Park, Western Australia; and
|
|
(f)
|
Adelaide Day Surgery, Level 2 (part 1), 18 North Terrance, Adelaide, SA, 5000.
|
5.
|
ADJUSTMENT OF PURCHASE PRICE
|
5.1
|
Preparation of Draft Completion Working Capital Statement
|
5.2
|
Sellers to cooperate
|
5.3
|
Content
|
|
(a)
|
be prepared in accordance with the Accounting Principles;
|
|
(b)
|
state the Completion Working Capital Amount;
|
|
(c)
|
other than in respect of the component figures referred to in clause 5.3(d) which must be inserted, be in identical form and substance to Schedule 11 (and to avoid doubt, must not include any additional asset or liability items that are not listed in Schedule 11; and
|
|
(d)
|
have inserted in it the component figures for each of the asset and liability items set out in Schedule 11.
|
5.4
|
Delivery of Draft Completion Working Capital Statement
|
5.5
|
Sellers’ response
|
|
(a)
|
No later than 30 calendar days after receipt of the Draft Completion Working Capital Statement (the Review Period), the Sellers must complete their review of the Draft Working Capital Statement.
|
|
(b)
|
If the Sellers determine that the Draft Working Capital Statement has not been prepared in accordance with clause 5.2, then the Sellers must inform the Buyer by giving an Adjustment Dispute Notice in accordance with clause 5.6.
|
5.6
|
Dispute Procedure
|
5.7
|
Acceptance and Deemed Acceptance
|
|
(a)
|
If the Sellers do not give the Buyer an Adjustment Dispute Notice in accordance with clause 5.6 before the end of the Review Period, then the Draft Completion Working Capital Statement in the form in which it was delivered by the Buyer to the Sellers under clause 5.4 shall be deemed to be the “Completion Working Capital Statement” for the purposes of this Deed, and will be final and binding on the parties.
|
|
(b)
|
Any items not disputed in the Adjustment Dispute Notice will be deemed to have been accepted by the Sellers.
|
5.8
|
Dispute Resolution Procedure
|
|
(a)
|
If the Sellers give the Buyer an Adjustment Dispute Notice, then the Buyer shall have 14 calendar days to review and respond to the Adjustment Dispute Notice by delivering written notice to the Sellers specifying the scope of its disagreement with the information contained in it (Dispute Notice Response). If no Dispute Notice Response is given by the Buyer, then the Buyer shall be deemed to have accepted the Adjustment Dispute Notice and the Draft Completion Working Capital Statement as amended by the Adjustment Dispute Notice shall be deemed to be the “Completion Working Capital Statement” for the purposes of this Deed, and will be final and binding on the parties.
|
|
(b)
|
If the Buyer delivers a Dispute Notice Response, then the Sellers and the Buyer must, within 14 calendar days of the date of the Dispute Notice Response, meet and use their reasonable endeavours to resolve any dispute or disagreement relating to the Draft Working Capital Statement and the calculation of the Final Completion Working Capital Amount (Working Capital Dispute). The meeting may be by teleconference or in person.
|
|
(c)
|
The Sellers and the Buyer may each have their financial, accounting or legal advisers attend the meeting referred to in clause 5.8(b), but must put the other party on notice a reasonable period before the meeting if the attendance of advisers is expected.
|
5.9
|
Referral to Independent Expert
|
|
(a)
|
If the Buyer and the Sellers have not been able to resolve the Working Capital Dispute within 35 calendar days after the delivery of an Adjustment Dispute Notice, then the parties shall have the Working Capital Dispute resolved by a Partner of an Australian office of PricewaterhouseCoopers, who has experience to consider disputes of this nature, mutually agreed by the Sellers and the Buyer, or as otherwise appointed pursuant to clause 5.9(b) (the Independent Expert). The Independent Expert shall determine whether and to what extent the Completion Working Capital Amount in the Draft Completion Working Capital Statement requires adjustment, and the Final Completion Working Capital Amount.
|
|
(b)
|
If the Buyer and the Sellers are unable to agree upon the selection of a Partner of an Australian office of PricewaterhouseCoopers, or such partner is not prepared to be appointed Independent Expert within 35 calendar days after the delivery of an Adjustment Dispute Notice, then either the Buyer or the Sellers may request the President of the Institute of Chartered Accountants of Australia (Institute) provide both parties with a list of five names of accountants who are prepared to act as the Independent Expert.
|
|
(c)
|
The party who makes a request to the Institute pursuant to clause 5.9(b) must:
|
|
(i)
|
do so in writing (copied to the other party);
|
|
(ii)
|
enclose with their request a copy of this Deed highlighting this clause; and
|
|
(iii)
|
pay the then prevailing fee charged by the Institute to provide a list of names to act as Independent Expert (Institute Fee).
|
|
(d)
|
If a party makes a request pursuant to clause 5.9(b), then the Buyer and the Sellers must promptly enter into any deed of release or indemnity that the Institute requires in the normal course be entered into in respect of any Claims before it provides the list of names for Independent Expert.
|
|
(e)
|
After the Institute provides the list referred to in paragraph (b), selection of the Independent Expert shall be made by the parties alternately striking any name from the list (beginning with a right by the Buyer to strike the first name) until only one remains.
|
|
(f)
|
After the Independent Expert is selected, the Buyer and the Sellers must jointly enter into a written engagement letter with the Independent Expert under which each party agrees to pay half of the Independent Expert’s fees and expenses.
|
|
(g)
|
After the written engagement letter referred to in paragraph (f) is entered into, the Buyer and the Sellers must jointly prepare a written submission to the Independent Expert which:
|
|
(i)
|
summarises the nature of the disputed matters;
|
|
(ii)
|
instructs the Independent Expert to reach the determination set out in clause 5.9(a);
|
|
(iii)
|
encloses the Draft Completion Working Capital Statement (together with any relevant working papers);
|
|
(iv)
|
encloses the Adjustment Dispute Notice;
|
|
(v)
|
encloses the Dispute Notice Response; and
|
|
(vi)
|
encloses a copy of this Deed with appropriate clauses highlighted (which shall include this clause 5 together with any related definitions in clause 1.1 and relevant Schedules).
|
5.10
|
Independent Expert procedure
|
|
(a)
|
The Independent Expert must:
|
|
(i)
|
act as an expert and not as an arbitrator;
|
|
(ii)
|
make the determination within the shortest possible time after the date of appointment;
|
|
(iii)
|
in reaching his or her determination, apply and take into account the Accounting Principles and any relevant provisions or defined terms in this Deed;
|
|
(iv)
|
in reaching his or her determination, not take into account any other dispute that may be ongoing between the parties and which does not relate to the Working Capital;
|
|
(v)
|
make the determination referred to in clause 5.9(a) and issue a written determination containing reasons; and
|
|
(vi)
|
amend the Draft Completion Working Capital Statement in accordance with his or her determination, which will then be taken to be the “Completion Working Capital Statement” for the purposes of this Deed, and will be final and binding on the parties in the absence of manifest error.
|
|
(b)
|
Any correspondence between the Independent Expert and either the Buyer or the Sellers (or between the Buyer or Sellers and the Independent Expert) must be in writing and be copied to the other party at the same time as it is sent to the principal recipient.
|
|
(c)
|
All information disclosed during the Independent Expert determination is taken to be Confidential Information, including the fact that there is or was a Working Capital Dispute.
|
|
(d)
|
The Buyer and the Sellers must promptly provide the Independent Expert with any information, documents, working papers, assistance and cooperation that the Independent Expert requests to assist in making his or her determination.
|
|
5.11Working Capital Adjustment in favour of Sellers
|
|
(a)the Working Capital Surplus Amount; and
|
|
(b)the Retained Cash Amount,
|
5.12
|
Working Capital Adjustment in favour of Buyer (less than Retained Cash Amount)
|
5.13
|
Working Capital Adjustment in favour of Buyer (greater than Retained Cash Amount)
|
6.
|
WARRANTIES AND INDEMNITIES
|
6.1
|
Buyer’s warranties
|
|
(a)
|
The Buyer:
|
|
(i)
|
represents and warrants to the Sellers that each of the Buyer’s Warranties is correct and not misleading on the Completion Date; and
|
|
(ii)
|
indemnifies the Seller against any Liability to the extent that the Liability is for a breach of any Buyer Warranty.
|
|
(b)
|
The Buyer acknowledges that the Buyer has given the Buyer Warranties to the Sellers with the intention of inducing the Sellers to enter into this Deed with the Buyer, and that the Sellers have entered into this Deed on the basis of, and in reliance on, the Buyer Warranties.
|
6.2
|
Sellers’ Warranties and indemnities
|
|
(a)
|
represent and warrant to the Buyer that each of the Warranties is correct and not misleading on the Completion Date (except that a Warranty stated to be made at some other date, is made only at that date); and
|
|
(b)
|
indemnify the Buyer (subject at all time to any applicable provisions in clause 7) against any Liability to the extent that the Liability is for a breach of the Warranties.
|
6.3
|
Reliance by Buyer
|
6.4
|
Tax Indemnity
|
6.5
|
Independent Contractor Exclusion
|
|
(a)
|
which arises as a result of a Healthcare Consultant being classified as an employee rather than an independent contractor; or
|
|
(b)
|
under the Independent Contractor Warranty.
|
6.6
|
Limitation of Riverside’s Liability
|
|
To avoid doubt Riverside is only jointly and severally liable for a Liability under clauses 6.2(a), 6.2(b), 6.4, 6.7, 6.8 and 15.7 and is not jointly and severally liable for any other Claim under this Deed, including without limitation a Claim by the Buyer against Robyn Walsh for a breach by her of clause 14.
|
6.7
|
IME Indemnity
|
|
(a)
|
by any patients of a Group Company's clients who have been the subject of an IME conducted by a Healthcare Consultant in the period up to and including the Completion Date;
|
|
(b)
|
connected with:
|
|
(i)
|
fees charged by a Healthcare Consultant to a Group Company;
|
|
(ii)
|
fees paid by a Group Company to a Healthcare Consultant; or
|
|
(iii)
|
the component of any fees referred to in clause 6.7(b)(i) and 6.7(b)(ii) that then form part of an amount charged by a Group Company,
|
6.8
|
Tax gross up
|
|
(a)
|
If a Seller is liable to pay an amount to the Buyer (or its Related Entity) in respect of a breach of Warranty or under an Indemnity and that payment results in an increase in the Tax payable by the Buyer (or its Related Entity), then the payment must be grossed-up by the amount necessary to ensure that the net amount retained by the Buyer (or its Related Entity) after deduction of or payment of that additional Tax equals the amount the Buyer (or its Related Entity) would have retained had that additional Tax not been payable, after taking into account any benefits or relief relating to that additional Tax (including any amount of any relief, allowance, exemption, exclusion, set-off, deduction, loss, rebate, refund, right to repayment or credit granted or available) obtained or to be obtained by the Buyer (or its Related Entity) in relation to that Claim.
|
|
(b)
|
If a Buyer is liable to pay an amount to a Seller (or its Related Entity) in respect of a breach of Buyer’s Warranties or under the Buyer Corresponding Indemnity and that payment results in an increase in the Tax payable by the Seller (or its Related Entity), then the payment must be grossed-up by the amount necessary to ensure that the net amount retained by the Seller (or its Related Entity) after deduction of or payment of that additional Tax equals the amount the Seller (or its Related Entity) would have retained had that additional Tax not been payable, after taking into account any benefits or relief relating to that additional Tax (including any amount of any relief, allowance, exemption, exclusion, set-off, deduction, loss, rebate, refund, right to repayment or credit granted or available) obtained or to be obtained by the Seller (or its Related Entity) in relation to that Claim.
|
7.
|
LIMITATION ON LIABILITIES
|
7.1
|
General limitations
|
|
(a)
|
(fair disclosure) other than in respect of a Claim or Liability under the Tax Indemnity to the extent that the fact, matter or circumstance which gives rise to the Liability has been fairly disclosed in the Disclosures;
|
|
(b)
|
(search results) other than in respect of a Claim or Liability under the Tax Indemnity, to the extent that the fact, matter or circumstance giving rise to the Liability was disclosed on any public registers maintained by the Australian Securities and Investments Commission as at 7 May 2012, the personal property securities register maintained by the Insolvency and Trustee Service Australia as at 10 May 2012, the register maintained by IP Australia as at 11 May 2012, the Victorian Land Titles Office (and the equivalent office in each Australian State and Territory) as at the relevant Title Search Dates, the High Court of Australia, Federal Court of Australia, Federal Magistrates Court and each of the State and Territory Supreme Courts as at 11 May 2012.
|
|
(c)
|
(general) to the extent that the Liability:
|
|
(i)
|
arises as a result of the enactment or amendment of any Law after Completion (whether or not with any retrospective effect);
|
|
(ii)
|
is for a breach of the Tax Warranties or a Claim under the Tax Indemnity and arises as a result of a change in the interpretation of any Law by the Australian Taxation Office after Completion;
|
|
(iii)
|
arises as a result of the Buyer or any of its Related Entities applying different accounting methods or concepts in respect of one or more of the Group Companies after Completion, or as a result of a change in the Accounting Standards or Accounting Principles after Completion;
|
|
(iv)
|
is attributable to anything done or not done after Completion by the Buyer, its Related Entities or Representatives; or
|
|
(v)
|
is in respect of any Forward Looking Information;
|
|
(d)
|
(Audited Accounts) to the extent that the Claim or Liability is or has been specifically provided, reserved or allowed for in the Audited Accounts or the Completion Working Capital Statement;
|
|
(e)
|
(consequential loss) to the extent that the Claim or Liability is for special, indirect or consequential loss or damage including loss of profit;
|
|
(f)
|
(recovered) to the extent that the Claim or Liability is made good or compensated for by way of payment received by the Buyer, other than under any insurance policy held by the Buyer including the W&I Policy (in which case, to avoid doubt, clause 10 will apply to the relevant Claim or Liability);
|
|
(g)
|
(tax recovered) to the extent that the Claim or Liability is recovered by the Buyer as a reduction in Tax payable or cash refund;
|
|
(h)
|
(compliance with claim procedure) to the extent that the Claim or Liability is for a breach of a Title or Capacity Warranty or is under the Corresponding Indemnity for a breach of a Title or Capacity Warranty, and to the extent to which:
|
|
(i)
|
the Buyer’s non-compliance with the Claim procedure set out in clause 11 has increased the Claim or Liability; or
|
|
(ii)
|
the Buyer’s compliance with the Claim procedure set out in clause 11 would have decreased the Claim or Liability,
|
|
(i)
|
(change of ownership) to the extent that the Claim or Liability has arisen as a result of
|
|
(i)
|
a restructure of the Business, the Company or the Group after Completion; or
|
|
(ii)
|
a cessation or alteration of the Business after Completion;
|
|
(j)
|
(time limits for Warranties and Corresponding Indemnity) other than in respect of a Claim or Liability under the Tax Warranty (or Corresponding Indemnity), Tax Indemnity or Title and Capacity Warranty (or Corresponding Indemnity), if the Claim is for breach of a Warranty or is a Claim or Liability under a Corresponding Indemnity unless the Buyer has given written notice to the Sellers notifying them of the Claim which gives rise to the Liability by no later than 15 months after the Completion Date; or
|
|
(k)
|
(time limits for Tax Indemnity and Title and Capacity Warranties) if the Claim is under the:
|
|
(i)
|
Tax Warranty (or Corresponding Indemnity) or Tax Indemnity unless the Buyer has given written notice to the Sellers notifying them of the Claim which gives rise to the Liability by no later than 7 years after the Completion Date, or
|
|
(ii)
|
Title and Capacity Warranty (or Corresponding Indemnity), unless the Buyer has given written notice to the Sellers notifying them of the Claim which gives rise to the Liability by no later than 7 years after the Completion Date.
|
7.2
|
Additional Tax Liability Limitations
|
|
(a)
|
In addition to the general limitations set out in clause 7.1, the Sellers will not be liable for any Liability for Tax for a breach of the Tax Warranties or a Claim under the Tax Indemnity to the extent that the Claim or Liability:
|
|
(i)
|
arises from a Group Company taking a position in relation to the application of a Tax Law which is inconsistent with the position taken by that Group Company before Completion, unless the Buyer is required to adopt an inconsistent position to comply with a Tax Law; or
|
|
(ii)
|
arises from a Group Company’s failure to take any action after Completion required by any applicable Tax Law in relation to any Tax (including any failure to take any such action within the time allowed).
|
|
(b)
|
If, after Completion, any Group Company receives a cash refund in respect of Tax paid by such Group Company in the period prior to Completion which was not specifically provided, reserved or allowed for in the Audited Accounts or Completion Working Capital Statement, then the Buyer must promptly notify the Sellers of this fact and must pay the Sellers the amount of such refund to an account nominated by the Sellers within 20 Business Days of receipt of such refund.
|
7.3
|
Contingent Claims
|
|
(a)
|
Subject to clause 7.3(c), the Sellers will not be liable for any Liability for any breach of the Warranties or any Claim or Liability under an Indemnity to the extent that the Claim or Liability is contingent, prospective, not ascertained or not ascertainable unless legal proceedings in respect of the Claim or Liability have been issued and served on the Sellers:
|
|
(i)
|
other than in respect of a Claim or Liability under the Tax Warranty, Tax Indemnity or Title and Capacity Warranty, by no later than 3 months after the relevant date referred to in clause 7.1(j);
|
|
(ii)
|
in respect of a Claim or Liability under the Tax Warranty or Tax Indemnity by no later than 3 months after the relevant date referred to in clause 7.1(k)(i);or
|
|
(iii)
|
in respect of a Claim or Liability under the Title and Capacity Warranty, by no later than 3 months after the relevant date referred to in clause 7.1(k)(ii).
|
|
(b)
|
For the purposes of clause 7.3(a), legal proceedings will not be deemed to have been commenced unless they have been properly issued and validly served upon the Sellers.
|
|
(c)
|
Without limiting or otherwise having any effect on clause 10, clause 7.3(a) will not apply to any Claim or Liability for which the Buyer has made or will make or is obliged to make a claim under the W&I Policy.
|
7.4
|
Use of deductions
|
7.5
|
Minimum claim amount
|
7.6
|
Maximum claim amount
|
|
(a)
|
Subject to clause 10, the maximum aggregate amount which the Buyer may recover from the Sellers in respect of all Claims or Liabilities for:
|
|
(i)
|
a breach of the Warranties; or
|
|
(ii)
|
under the Corresponding Indemnity,
|
|
(b)
|
Subject to clause 10, the maximum aggregate amount which the Buyer may recover from the Sellers in respect of all Claims or Liabilities under the Tax Indemnity, whether for a single Claim or an aggregate of Claims is $93,000,000.
|
7.7
|
Mitigation
|
7.8
|
Related Benefits
|
7.9
|
No Double Recovery
|
7.10
|
Limitation of Remedy
|
7.11
|
Refund of Purchase Price
|
|
(a)
|
Any monetary compensation received by the Buyer as a result of any breach by the Sellers of any of the Warranties or as a result of any Claim by the Buyer under an Indemnity will be in reduction and refund of the Purchase Price.
|
|
(b)
|
Any monetary compensation received by a Seller as a result of any breach by the Buyer of any of the Buyer Warranties or as a result of any Claim by the Seller under the Buyer Corresponding Indemnity will be an increase in the Purchase Price.
|
7.12
|
Independent limitations
|
7.13
|
Excluded Warranties
|
7.14
|
Circumstances where limitations do not apply
|
7.15
|
Excluded Conduct
|
|
(a)
|
in deciding to enter into this Deed and proceed to Completion, it has not relied on any express or implied (whether written or oral) statement, representation, warranty, term, condition, forecast or promise made, or other conduct engaged in, by the Sellers in connection with the sale of the Company (Excluded Conduct), which is not expressly set out in this Deed;
|
|
(b)
|
unless a statute provides otherwise, neither the Sellers nor their Representatives have any Liability to the Buyer, their Related Entities or their Representatives for any Claim arising from, or connected with, any Excluded Conduct;
|
|
(c)
|
to the maximum extent permitted by Law, the Buyer and its Related Entities irrevocably waive and release the Sellers and their Representatives from any Liability for, or in connection with, any Excluded Conduct; and
|
|
(d)
|
in deciding to proceed to Completion, it has done so after having conducted a full inspection and investigation of the Group and the Business to its satisfaction, including, without limitation, a full review and assessment of the Disclosures.
|
7.16
|
General exclusion of Sellers’ liability
|
8.
|
DIRECTORS’ AND OFFICERS’ INSURANCE
|
|
(a)
|
Subject to clause 8(b), after Completion the Buyer must procure that each Group Company complies with the deeds of indemnity, access and insurance entered into by them in favour of the directors and officers of each Group Company before Completion as amended by the Indemnity and Access Amendment Deed, other than in respect of any obligation under the relevant deeds to maintain directors’ and officers’ run off insurance cover.
|
|
(b)
|
Riverside must ensure that for three years after the Completion Date, it maintains directors' and officers' run off insurance cover in respect of all directors and officers who held office of each Group Company during the period in which Riverside controlled the Group or a Group Company (as applicable).
|
9.
|
PROPORTIONATE LIABILITY
|
9.1
|
Exclusion of proportionate liability provisions
|
|
(a)
|
that to the extent permitted by Law:
|
|
(i)
|
part IVAA of the Wrongs Act 1958 (Victoria) (and any equivalent statutory provision in any other state or territory)
|
|
(ii)
|
part VIA of the Competition and Consumer Act 2010 (Cth); and
|
|
(iii)
|
part 7.10, Division 2A of the Corporations Act,
|
|
(b)
|
without limiting clause 9.1(a), the rights, obligations and liabilities of the parties under this Deed or in relation to any Claim with respect to proportionate liability are as specified in this Deed and not otherwise, whether those rights, obligations or liabilities are sought to be enforced by a claim in contract, in tort or otherwise.
|
9.2
|
Sellers not to apply Proportionate Liability Provisions
|
|
(a)
|
The Sellers must not seek to apply any of the Proportionate Liability Provisions in relation to any Claim by the Buyer against the Sellers (whether in contract, tort or otherwise).
|
|
(b)
|
If any of the provisions of the Proportionate Liability Provisions are applied to any Claim by the Buyer against the Sellers (whether in contract, tort or otherwise), the Sellers must pay to the Buyer on demand an amount equal to any loss, damage, cost or expense that forms part of that claim by the Buyer against the Sellers which the Buyer is not able to recover from the Sellers because of the operation of any of the Proportionate Liability Provisions.
|
10.
|
W & I POLICY
|
10.1
|
Buyer acknowledgements
|
|
(a)
|
The Buyer acknowledges that it has entered into this Deed on the following basis consistent with the parties’ intentions:
|
|
(i)
|
in accordance with clause 10.3, no Claim of any kind whatsoever may be brought against any or all of the Sellers for a breach of or in connection with an Excluded Warranty or Indemnity or in respect of a related gross up payment under clause 6.8 (except in the case of any fraud or wilful concealment by the Sellers or the Sellers' officers and then only to the extent that the Sellers’ or the Sellers’ officers fraud or wilful concealment directly caused the Liability);
|
|
(ii)
|
in lieu of being able to bring a Claim against any or all of the Sellers for a breach of or in connection with an Excluded Warranty or Indemnity or a related gross up payment under clause 6.8, the Buyer has obtained the benefit of and entered into the W&I Policy;
|
|
(iii)
|
the Buyer’s sole and exclusive recourse for any Claim against any or all of the Sellers for a breach of or in connection with an Excluded Warranty or Indemnity or in respect of any related gross up payment under clause 6.8 is to make a Claim under the W&I Policy; and
|
|
(iv)
|
notwithstanding the existence of the W&I Policy and the acknowledgements in paragraphs 10.1(a)(i) to 10.1(a)(iii), the W&I Policy can only respond to this Deed and for this reason the Sellers have still been required to provide the Excluded Warranties or Indemnities to the Buyer set out in paragraphs 3 to 24 of Schedule 3 of this Deed and clause 6.8.
|
|
(b)
|
The Buyer acknowledges that it has fully satisfied itself about any risks associated with having sole and exclusive recourse for a breach of the Excluded Warranties or Indemnities and any related gross up payment under clause 6.8 against the Warranty Insurer rather than against any or all of the Sellers, and has read, understood and received professional advice on the terms of the W&I Policy, including without limitation any exclusions that may apply.
|
10.2
|
Buyer’s warranties
|
|
(a)
|
it has obtained the W&I Policy from an insurer (Warranty Insurer) as attached in Schedule 21;
|
|
(b)
|
under the W&I Policy the Warranty Insurer:
|
|
(i)
|
acknowledges that it has issued the W&I Policy notwithstanding clauses 10.1 and 10.3 and on the basis that clauses 10.1 and 10.3 do not in any way prevent, limit or affect the Buyer’s or its Related Entities' ability to claim under the W&I Policy and to recover against the Warranty Insurer under the W&I Policy for any Liability that the Buyer or its Related Entities suffers for or in connection with a breach of an Excluded Warranty or Indemnity or in respect of a related gross up payment under clause 6.8;
|
|
(ii)
|
shall not take into account clauses 10.1 or 10.3 in calculating amounts due and payable under the W&I Policy and for the purpose of any claim or recovery by the Buyer or any Related Entity under the W&I Policy, any amount which (but for clauses 10.1 and 10.3) would have been due and payable to the Buyer or a Related Entity in relation to an Excluded Warranty or Indemnity or a related gross up payment under clause 6.8, shall be deemed to be due and payable;
|
|
(iii)
|
does not have any right of subrogation or assignment, or claim in contribution against any or all of the Sellers and is not required or entitled to be subrogated to or assigned any rights against any or all of the Sellers that the Buyer has or may have in relation to a Claim or Liability or otherwise under this Deed, except in the case of any fraud or wilful concealment by the Sellers or the Sellers' officers and then only to the extent that the Sellers’ or the Sellers’ officers fraud or wilful concealment directly caused the Liability; and
|
|
(c)
|
it has provided a copy of this Deed to the Warranty Insurer before the W&I Policy was entered into, and has specifically drawn the attention of the Warranty Insurer to this clause 10.
|
10.3
|
Limitation of Liability
|
|
(a)
|
The Buyer and its Related Entities:
|
|
(i)
|
may not bring a Claim of any kind whatsoever and irrevocably waive any right to bring a Claim against any or all of the Sellers or any of their Related Entities for a breach of or in connection with an Excluded Warranty or Indemnity or in respect of a related gross up payment under clause 6.8 (including without limitation where the Buyer is unable to recover or fully recover any Liability it has suffered under the W&I Policy), except in the case of any fraud or wilful concealment insurer by the Sellers or the Sellers' officers and then only to the extent that the Sellers’ or the Sellers’ officers fraud or wilful concealment directly caused the Liability;
|
|
(ii)
|
irrevocably release and forever discharge the Sellers and their Related Entities and Representatives for any Liability that the Buyer suffers or may suffer now or at any time in the future as a result of a breach of or any matter connected to an Excluded Warranty or Indemnity or related gross up payment under clause 6.8; and
|
|
(iii)
|
will only bring a Claim for any Liability it has suffered as a result of a breach of or in connection with an Excluded Warranty or Indemnity and any related gross up payment under clause 6.8 against the Warranty Insurer in accordance with and pursuant to the terms of the W&I Policy.
|
|
(b)
|
Clause 10.3(a) has full force and effect irrespective of:
|
|
(i)
|
whether the warranties and representations in clause 10.2 are true;
|
|
(ii)
|
the terms, enforceability or validity of the W&I Policy obtained by the Buyer;
|
|
(iii)
|
the solvency or other ability of the Warranty Insurer to satisfy any Claim or quantum of any Claim made by the Buyer under the W&I Policy;
|
|
(iv)
|
whether any Claim or quantum of Claim that the Buyer brings against the Warranty Insurer under the W&I Policy is admitted by the Warranty Insurer or succeeds or the W&I Policy responds to the Claim; or
|
|
(v)
|
whether the Buyer agrees to settle any Claim that it brings against the Warranty Insurer under the W&I Policy for an amount which is less than the Liability it suffered or Claimed to suffer as a result of a breach of or in connection with an Excluded Warranty or Indemnity or in respect of any related gross up payment under clause 6.8.
|
10.4
|
Bar to proceedings
|
|
This Deed may be pleaded as a full and complete defence by the Sellers to any Claim commenced, continued or taken by the Buyer or its Related Entities, or on their behalf, in relation to an Excluded Warranty or Indemnity or related gross up payment under clause 6.8.
|
11.
|
CLAIMS PROCEDURE
|
11.1
|
Written notice of Claims
|
|
(a)
|
within 14 Business Days after the date when the matter first comes to the Buyer’s attention, give a written notice to the Sellers of all relevant details of the Claim (a Claim Notice), including:
|
|
(i)
|
the Seller it claims has breached the Title or Capacity Warranty;
|
|
(ii)
|
full details of any facts, matters or circumstances in relation to the Claim;
|
|
(iii)
|
the Title and Capacity Warranty or Corresponding Indemnity that is the subject of the Claim; and
|
|
(iv)
|
the monetary amount of the Liability incurred (or estimated to be incurred) in respect of the Claim; and
|
|
(b)
|
provide the Sellers with all information and documents reasonably requested to allow the Sellers to determine whether or not to give a Claim Dispute Notice, and to determine the contents of the Claim Dispute Notice.
|
11.2
|
Claim Dispute
|
|
(a)
|
in detail the reason why the Sellers dispute the Claim Notice; and
|
|
(b)
|
the monetary amount (if any) admitted by the Sellers as being owing to the Buyer for the Liability incurred or estimated to be incurred in respect of the Claim (together a Claim Dispute Notice), following which the Claim Dispute must be dealt with in accordance with clause 17.
|
11.3
|
Recovery Amount
|
|
(a)
|
written notice to the Sellers if it receives any amount by way of payment, credit, compensation or recovery after the Completion Date in respect of any Liability which the Buyer has wholly or partially recovered from the Sellers within 10 Business Days of the amount being recovered (Recovery Amount); and
|
|
(b)
|
pay the Recovery Amount to the Sellers within the same 10 Business Day period less all costs incurred by the Buyer or Group Company in recovering the Recovery Amount and any Tax payable by the Buyer or Group Company as a result of receiving the Recovery Amount.
|
12.
|
RECORDS RETENTION
|
|
(a)
|
The Buyer must retain or procure the retention of the Records for 7 years after the Completion Date.
|
|
(b)
|
Upon the Sellers’ prior written request on reasonable notice, the Buyer must make available to the Sellers or its Representatives for inspection or copying the Records reasonably required by the Sellers:
|
|
(i)
|
to enable any Seller to prepare accounts, tax returns and other statutory returns relating wholly or partly to any period before Completion; or
|
|
(ii)
|
in connection with the prosecution or defence of any claim by or against any Seller relating to a Group Company, the Business or this Deed.
|
|
(c)
|
Upon the Buyer’s prior written request on reasonable notice, each Seller must make available to the Buyer or its Representatives for inspection or copying the Records reasonably required by the Buyer:
|
|
(i)
|
to enable the Buyer to prepare accounts, tax returns and other statutory returns relating wholly or partly to any period before Completion; or
|
|
(ii)
|
in connection with the prosecution or defence of any Claim by or against the Buyer or a Group Company relating to a Group Company, the Business or this Deed.
|
13.
|
CONFIDENTIALITY
|
13.1
|
Primary obligation
|
|
(a)
|
subject to clauses 13.2 and 13.3, keep the Confidential Information confidential;
|
|
(b)
|
not use the Confidential Information for the Receiving Party’s own or another’s advantage, or to the competitive disadvantage of the party disclosing the Confidential Information (Disclosing Party); and
|
|
(c)
|
not copy or duplicate or allow the copying or duplication of any Confidential Information.
|
13.2
|
Permitted disclosure
|
|
(a)
|
A party may disclose Confidential Information:
|
|
(i)
|
to its professional advisers, bankers, financial advisers, equity or debt financiers or any of its employees to whom it is necessary to disclose the Confidential Information, if those persons undertake to keep the Confidential Information confidential;
|
|
(ii)
|
pursuant to any applicable Law or court order, or to a Governmental Agency or stock exchange or in order to comply with its obligations under this Deed; or
|
|
(iii)
|
for the purposes of issuing, defending or participating in legal proceedings.
|
|
(b)
|
On or after Completion, Riverside may make a public or media announcement about this Deed, the sale of the Shares, or Completion in the agreed form set out in Schedule 19, without the prior approval of the Buyer.
|
|
(c)
|
On or after Completion, the Buyer may make a public or media announcement about this Deed, the sale of the Shares, or Completion in the agreed form set out in Schedule 20, without the prior approval of the Riverside.
|
13.3
|
Security and control
|
|
(a)
|
take all reasonable proper and effective precautions to maintain the confidential nature of the Confidential Information; and
|
|
(b)
|
immediately notify the Disclosing Party of any potential, suspected or actual unauthorised access, disclosure, copying or use or breach of this clause 13.
|
14.
|
RESTRAINTS
|
14.1
|
Sellers’ restraint
|
|
(a)
|
(non-compete) each of the Sellers must not carry on any business, have any direct or indirect financial interest in or provide services to any business which competes with the Business;
|
|
(b)
|
(non-solicitation in respect of employees) in respect of all employees who were employees of the Group at any time during the 12 months prior to the Completion Date (together, the Relevant Employees), each of the Sellers must not:
|
|
(i)
|
hire or solicit the Relevant Employees; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and the Relevant Employees; and
|
|
(c)
|
(non-solicitation in respect of Tim Morphy) subject to clause 14.2(d), in respect of Tim Morphy, each of the Sellers must not:
|
|
(i)
|
hire or solicit Tim Morphy; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and Tim Morphy; and
|
|
(d)
|
(non-solicitation of customers and suppliers) in respect of all customers and suppliers who were customers and suppliers of the Group at any time during the 12 months prior to the Completion Date, each of the Sellers must not:
|
|
(i)
|
solicit the relevant customers or suppliers; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and the relevant customers or suppliers,
|
14.2
|
Exceptions
|
|
(a)
|
Nothing in clause 14.1 restricts any of the Sellers from:
|
|
(i)
|
owning less than 5 per cent of any securities of a business or company whose securities are traded on a recognised stock exchange and that competes with the Business because it conducts either or both of the activities referred to in paragraphs (a) and (b) of the definition of “Business” in clause 1.1;
|
|
(ii)
|
owning all or part of a business or company (irrespective of whether its securities are privately held or traded on a recognised stock exchange) where 5 per cent or less of the revenue of the business is derived (whether directly or indirectly) from either or both of the activities referred to in paragraphs (a) and (b) of the definition of “Business” in clause 1.1 (based on the revenue of the relevant business or company in the 12 month period prior to the date of the relevant acquisition or investment); or
|
|
(iii)
|
owning all or part of a business or company (irrespective of whether its securities are privately held or traded on a recognised stock exchange) where 10 per cent or less of the revenue of the business or company is derived (whether directly or indirectly) from activities referred to in paragraphs (c) - (f) of the definition of “Business” in clause 1.1 (based on the revenue of the relevant business or company in the 12 month period prior to the date of the relevant acquisition or investment),
|
|
(b)
|
Other than in respect of the Key Employees, nothing in clause 14.1 restricts any of the Sellers from:
|
|
(i)
|
advertising employment vacancies in the normal course in any form of social media, newspaper, website or other publication or through a recruitment agency (except where the advertisement targets employees of any Group Company) or interviewing and negotiating with any person responding to such an advertisement; or
|
|
(ii)
|
employing or engaging any employee of the Group who seeks employment or engagement with or by the Sellers solely as a result of such person’s own initiative (including without limitation responding to any advertisement referred to in paragraph 14.2(b)(i)), provided the group employee is a Designated Employee.
|
|
(c)
|
To avoid doubt, nothing in clause 14.1 restricts Robyn Walsh from continuing to be a director of:
|
|
(i)
|
Orthodynamics Pty Ltd (ACN 151 850 252); or
|
|
(ii)
|
Fairpay Solutions, Inc.
|
|
(d)
|
Clause 14.1(c) ceases to have any effect if a Group Company fails to employ Tim Morphy by the date which is one year after Completion.
|
14.3
|
Injunctive Relief
|
|
(a)
|
without limiting the relief that the Buyer is entitled to seek, that the Buyer may seek an injunction if any Seller is in breach or threatens to breach, or if the Buyer reasonably believes that any Seller will breach the provisions of this clause 14; and
|
|
(b)
|
no Seller will make any submissions or contention in any proceeding at which the Buyer seeks an injunction in relation to any breach, or any alleged, threatened or apprehended breach, of this clause 14 to the effect that granting an injunction is not appropriate because the payment of damages alone would be adequate to compensate the Buyer.
|
14.4
|
Acknowledgement
|
14.5
|
Independent restraints
|
15.
|
ADDITIONAL RESTRAINED PARTIES RESTRAINTS
|
15.1
|
Additional Restrained Parties Restraint
|
|
(a)
|
(non-compete) each of the Additional Restrained Parties must not carry on any business, have any direct or indirect financial interest in or provide services to any business which competes with the Business;
|
|
(b)
|
(non-solicitation in respect of employees) in respect of all employees who were employees of the Group at any time during the 12 months prior to the Completion Date (together, the Relevant Employees), each of the Additional Restrained Parties must not:
|
|
(i)
|
hire or solicit the Relevant Employees; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and the Relevant Employees; and
|
|
(c)
|
(non-solicitation in respect of Tim Morphy) subject to clause 15.2(c), in respect of Tim Morphy, each of the Additional Restrained Parties must not:
|
|
(i)
|
hire or solicit Tim Morphy; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and Tim Morphy; and
|
|
(d)
|
(non-solicitation of customers and suppliers) in respect of all customers and suppliers who were customers and suppliers of the Group at any time during the 12 months prior to the Completion Date, each of the Additional Restrained Parties must not:
|
|
(i)
|
solicit the relevant customers or suppliers; or
|
|
(ii)
|
otherwise interfere with the relationship between the Buyer or the Group and the relevant customers or suppliers,
|
15.2
|
Exceptions
|
|
(a)
|
Nothing in clause 15.1 will restrict either of the Additional Restrained Parties from:
|
|
(i)
|
owning less than 5 per cent of any securities of a business or company whose securities are traded on a recognised stock exchange and that competes with the Business because it conducts either or both of the activities referred to in paragraphs (a) and (b) of the definition of “Business” in clause 1.1;
|
|
(ii)
|
owning all or part of a business or company (irrespective of whether its securities are privately held or traded on a recognised stock exchange) where 5 per cent or less of the revenue of the business is derived (whether directly or indirectly) from either or both of the activities referred to in paragraphs (a) and (b) of the definition of “Business” in clause 1.1 (based on the revenue of the relevant business or company in the 12 month period prior to the date of the relevant acquisition or investment); or
|
|
(iii)
|
owning all or part of a business or company (irrespective of whether its securities are privately held or traded on a recognised stock exchange) where 10 per cent or less of the revenue of the business or company is derived (whether directly or indirectly) from activities referred to in paragraphs (c) - (f) of the definition of “Business” in clause 1.1 (based on the revenue of the relevant business or company in the 12 month period prior to the date of the relevant acquisition or investment),
|
|
(b)
|
Other than in respect of the Key Employees, nothing in clause 15.1 restricts any of the Additional Restrained Persons from
|
|
(i)
|
advertising employment vacancies in the normal course in any form of social media, newspaper, website or other publication or through a recruitment agency (except where the advertisement targets employees of any Group Company) or interviewing and negotiating with any person responding to such an advertisement; or
|
|
(ii)
|
employing or engaging any employee of the Group who seeks employment or engagement with or by the Additional Restrained Parties solely as a result of such person’s own initiative (including without limitation responding to any advertisement referred to in paragraph 15.2(b)(i)), provided the group employee is a Designated Employee.
|
|
(c)
|
Clause 15.1(c) ceases to have any effect if a Group Company fails to employ Tim Morphy by the date which is one year after Completion.
|
15.3
|
Injunctive Relief
|
|
(a)
|
without limiting the relief the Buyer is entitled to seek, the Buyer may seek an injunction if any Seller is in breach or threatens to breach, or if the Buyer reasonably believes that any Seller will breach the provisions of this clause 15; and
|
|
(b)
|
no Seller will make any submissions or contention in any proceeding at which the Buyer seeks an injunction in relation to any breach, or any alleged, threatened or apprehended breach, of this clause 15 to the effect that granting an injunction is not appropriate because the payment of damages alone would be adequate to compensate the Buyer.
|
15.4
|
Additional Restrained Parties Acknowledgement
|
|
(a)
|
Stuart Baxter is a managing partner of the Riverside Company and Simon Feiglin is a partner of Riverside Asia Partners LLC which respectively manage and/or advise Riverside, including with respect to Riverside’s investment in the Company;
|
|
(b)
|
in their capacity described in clause 15.4(a) the Additional Restrained Parties have gained confidential knowledge of the Business and therefore have the capacity to engage in activities which compete with the Business; and
|
|
(c)
|
each of the restraints in clause 15.1 is reasonable with respect to their subject matter, the Restraint Area and the Restraint Period and go no further than is reasonably necessary to protect the interests of the Buyer as the purchaser of the Shares, and the goodwill of the Company and the Business.
|
15.5
|
Independent restraints
|
15.6
|
Riverside Warranty
|
15.7
|
Riverside Indemnity
|
|
(a)
|
a breach of the Riverside Warranty; and
|
|
(b)
|
any act by an Additional Restrained Party which is described in clauses 15.1(a) to15.1(d).
|
16.
|
TAX MATTERS
|
16.1
|
Preparation of Pre-Completion Returns by Sellers
|
|
(a)
|
The Sellers will:
|
|
(i)
|
prepare and file all Pre-Completion Returns as soon as reasonably practicable after Completion and in any event prior to the lodgement due date of the relevant Pre-Completion Return;
|
|
(ii)
|
bear all costs of preparing and filing the Pre-Completion Returns; and
|
|
(iii)
|
provide a copy of the Pre-Completion Return (and all related workpapers) to the Buyer immediately following lodgement of the Pre-Completion Return to the relevant Tax Authority.
|
|
(b)
|
Subject to clause 16.1(c), the Buyer may file any Pre-Completion Return which the Buyer reasonably believes will not be filed by the Sellers with the relevant Tax Authority on or by the lodgement due date and the Seller will reimburse the Buyer for all costs reasonably incurred by the Buyer to lodge the Pre-Completion Return.
|
|
(c)
|
At least 30 Business Days prior to filing any Pre-Completion Return in relation to income tax, and 5 Business Days prior to filing a Pre-Completion Return in relation to goods and services tax and fringe benefits tax, the Buyer must provide the Sellers with a written notice which:
|
|
(i)
|
states that the Buyer does not believe the Sellers will file the relevant Pre-Completion Return with the relevant Tax Authority on or by the lodgement due date and the reasons for the Buyer’s view; and
|
|
(ii)
|
contains a copy of the draft Pre-Completion Return (including a copy of the workpapers to the extent that it relates to assessable income derived and allowable deductions incurred on or before Completion) that the Buyer intends to file with the relevant Tax Authority.
|
|
(d)
|
Within 10 Business Days after receipt of a written notice under clause 16.1(c) in respect of a Pre-Completion Return in relation to income tax and within 2 Business Days after receipt of a written notice under clause 16.1(c), the Sellers must provide a written notice to the Buyer which states that the Sellers:
|
|
(i)
|
intend to file a Pre-Completion Return, in which case clause 16.1(b) will not apply and the Buyer may not file the relevant Pre-Completion Return;
|
|
(ii)
|
requests amendments to the draft Pre-Completion Return provided by the Buyer, in which case the Buyer must make all the requested amendments to the draft Pre-Completion Return to the extent that they are reasonable and in accordance with Tax Law and practice, and then may file the amended Pre-Completion Return with the relevant Tax Authority; or
|
|
(iii)
|
accepts the draft Pre-Completion Return, in which case the Buyer may file the relevant Pre-Completion Return with the relevant Tax Authority.
|
|
(e)
|
If the Sellers do not respond within the period specified in the clause 16.1(d) the Buyer may file the draft Pre-Completion Return (in the form provided to the Sellers under clause 16.1(c)) with the relevant Tax Authority.
|
|
(f)
|
For the avoidance of doubt, clauses 16.1(c), 16.1(d) and 16.1(e) do not apply where the Sellers have failed to file a Pre-Completion Return by the lodgement due date.
|
16.2
|
Buyer’s obligations relating to Pre-Completion Returns
|
|
(a)
|
The Buyer must:
|
|
(i)
|
provide all information and assistance that may be reasonably requested by the Sellers in connection with the preparation and filing of the Pre-Completion Returns;
|
|
(ii)
|
execute all documents and give or make all notices and declarations as the Sellers may reasonably require in connection with the preparation and filing of the Pre-Completion Returns; and
|
|
(iii)
|
permit the Sellers to have access to and take extracts or copies from any of the Records for the purpose of preparing the Pre-Completion Returns.
|
|
(b)
|
To the extent permitted by Law, the Buyer must not, unless the Sellers give their prior written consent, which consent is not to be unreasonably withheld or delayed:
|
|
(i)
|
file any Pre-Completion Return with the relevant Governmental Agency, except the Buyer may file any Pre-Completion Return to the extent permitted by clause 16.1(b);
|
|
(ii)
|
amend, lodge any objection to or appeal any Pre-Completion Return;
|
|
(iii)
|
apply to a relevant Tax Authority for any opinion, ruling or other determination in relation to any Tax, event or omission covered by a Pre-Completion Return or to any event or omission on or before Completion; or
|
|
(iv)
|
furnish to a relevant Tax Authority any information in relation to any Pre-Completion Return or any event or omission on or before Completion.
|
16.3
|
Preparation of Overlap Returns by Buyer
|
|
(a)
|
prepare and file all Overlap Returns; and
|
|
(b)
|
bear all costs of preparing and filing the Overlap Returns.
|
16.4
|
Sellers obligations in relation to Overlap Returns
|
16.5
|
Sellers may review Overlap Returns in relation to Tax
|
|
(a)
|
provide a copy of the draft Income Tax Overlap Return (including a copy of the workpapers to the extent that it relates to assessable income derived and allowable deductions incurred on or before Completion) to that Seller at least 30 Business Days prior to lodging the Income Tax Overlap Return with the relevant Tax Authority; and
|
|
(b)
|
where that Seller gives written notice to the Buyer not more than 10 Business Days after receipt of the draft Income Tax Overlap Return requesting amendments to the Income Tax Overlap Return, make such adjustments to the Income Tax Overlap Return provided that the requested adjustments are reasonable and to the extent that the adjustments relate to assessable income derived and allowable deductions incurred on or before Completion.
|
16.6
|
Tax audits
|
|
(a)
|
within 30 Business Days of the Taxpayer receiving notice of or becoming aware of the Tax audit, the Taxpayer must give written notice to the Sellers;
|
|
(b)
|
the Taxpayer must consult with the Sellers in relation to any response to, or decision whether to respond to, the Tax Authority by the Taxpayer; and
|
|
(c)
|
the Sellers must at their own cost provide to the Buyer all information and assistance reasonably required by the Buyer in connection with the Tax audit.
|
16.7
|
Confidentiality
|
16.8
|
Code § Election Notice
|
17.
|
DISPUTE RESOLUTION
|
17.1
|
Dispute
|
|
(a)
|
If a dispute other than a Working Capital Dispute (Dispute) arises between the parties in connection with this Deed, except where urgent interlocutory relief is sought, the parties must use their reasonable endeavours to settle the Dispute under this clause 17.
|
|
(b)
|
To avoid doubt, this clause 17 does not apply to a Working Capital Dispute.
|
17.2
|
General Dispute Notice
|
17.3
|
Parties to try to settle Dispute
|
17.4
|
Arbitration
|
|
(a)
|
If a Dispute has not been resolved by the disputing parties within 10 Business Days of the date of the General Dispute Notice (Notice Period), either party may submit the Dispute to ACICA for determination in accordance with this clause 17.4.
|
|
(b)
|
The arbitrator of any Dispute referred to ACICA will be an independent person appointed by ACICA.
|
|
(c)
|
The arbitration will be held in Melbourne, Victoria and must be conducted in accordance with the laws of Victoria, Australia and according to the ACICA Arbitration Rules.
|
|
(d)
|
Subject to clause 17.4(e), each party to the Dispute will bear its own costs connected to the arbitration.
|
|
(e)
|
Half of the costs of the arbitration and the arbitration centre will be borne by the Sellers and half of those costs will be borne by the Buyer.
|
|
(f)
|
The arbitrator’s determination in relation to the matter shall be final and binding on the parties to the dispute.
|
|
(g)
|
If the Dispute relates to a Claim under a warranty or indemnity in this Deed then:
|
|
(i)
|
the purpose of the arbitration referred to ACICA will be to determine the monetary amount of the Liability incurred arising out of the Claim which is the subject of the Dispute Notice; and
|
|
(ii)
|
the arbitrator’s determination under clause 17.4(e) must state in writing the monetary amount of the Liability incurred arising out of the Claim which is the subject of the Dispute Notice (Determined Amount).
|
|
(h)
|
No later than 20 Business Days after a determination by the arbitrator referred to under clause 17.4(e), the party against whom the determination is made must pay an amount equal to the Determined Amount to the other party.
|
17.5
|
Relief
|
|
(a)
|
Nothing in this clause 17 will limit the ability of any party to seek urgent injunctive relief or other equitable relief in relation to any Claim or Liability, or if any Seller or Additional Restrained Party is in breach or threatens to breach, or if the Buyer reasonably believes that any Seller or Additional Restrained Party will breach clauses 14 or 15 respectively.
|
|
(b)
|
Failure by a party to a Dispute to attempt to comply with this clause 17 may be pleaded as a bar to proceedings initiated by that party, except in the case of proceedings requesting urgent relief.
|
18.
|
GST
|
18.1
|
Interpretation
|
|
(a)
|
Unless the context suggests otherwise, expressions used in this clause 18 have the same meanings given to those expressions in the GST Law.
|
|
(b)
|
Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 18.
|
18.2
|
General
|
18.3
|
GST payable
|
|
(a)
|
To the extent that any supply made under or in connection with this Deed is a taxable supply by a party (Supplier), the GST exclusive consideration otherwise payable or to be provided by any other party (Recipient) for that supply is increased by an additional amount equal to that other consideration multiplied by the rate at which GST is imposed in respect of the supply, and that additional amount is payable by the Recipient at the same time as the other consideration is payable or to be provided.
|
|
(b)
|
The Supplier must provide the Recipient with a valid tax invoice before being entitled to receive payment of the additional amount under clause 18.3(a).
|
18.4
|
Recovery of GST payable
|
18.5
|
Reimbursement or indemnity payment
|
18.6
|
Variation of GST
|
19.
|
COSTS AND STAMP DUTY
|
19.1
|
Costs
|
19.2
|
Stamp duty
|
|
(a)
|
The Buyer must pay all stamp duty payable in connection with the sale of the Shares under this Deed when due.
|
|
(b)
|
The Buyer indemnifies the Seller against any Liability to the extent that the Liability is for stamp duty payable in connection with the sale of the Shares under this Deed, the sale of the Additional Sellers’ shares under the Additional Sellers Deed, the share transfer forms delivered by the Sellers at Completion pursuant to clause 4.2(a)(i), the W&I Policy, Indemnity and Access Amendment Deed and any deed or agreement entered into pursuant to clause 4.6 (including any fines and penalties).
|
20.
|
NOTICES
|
|
(a)
|
Subject to clause 20, notices may be served either by delivery to a party personally, by posting to the party's last known address by pre-paid ordinary mail or facsimile or email, or if the address is outside Australia, by pre-paid air mail for facsimile to the party's last known address for service.
|
|
(b)
|
If a communication is given by:
|
|
(i)
|
post, it is taken as received if posted within Australia to an Australian address 3 Business Days (in place of receipt) after posting;
|
|
(ii)
|
facsimile, when the sender's facsimile machine produces a report that the fax was sent in full to the addressee, the report will be prima facie evidence that the facsimile was received by the addressee in legible form at the time indicated on that report; or
|
|
(iii)
|
by email, it is taken as received where the sender receives a delivery confirmation report which records the time that the email was delivered to the addressee’s last notified email address, unless the sender receives a delivery failure notification indicating that the electronic mail has not been delivered to the addressee.
|
|
(c)
|
Each party may from time to time change its particulars for service by notice to each other party, however, the particulars for services initially are as follows:
|
Sellers
|
|
|
RA Investments I Comm. V.
Riverside Capital Appreciation Fund V Investments Comm. V.
|
||
Address:
|
7, Avenue Lloyd George, Brussels, 1000, Belgium
|
|
Attention:
|
Peter Parmentier
|
|
Facsimile:
|
+32 (2) 626 2122
|
Email:
|
pap@riversideeurope.com
|
|
Robyn Walsh
|
||
Address:
|
Level 6, 486 Albert Street
East Melbourne VIC 3002
|
|
Attention:
|
Robyn Walsh
|
|
Facsimile:
|
03 9650 2255
|
|
Email:
|
walshr@mlcoa.com.au
|
|
Buyer
|
||
Address:
|
ExamWorks
3280 Peachtree Road
Suite 2625
Atlanta GA 30305
|
|
Attention:
|
Mr Miguel Fernandez de Castro
Chief Financial Officer
|
|
Facsimile:
|
1 404 846 1554
|
|
Email:
|
miguel.fernandez@examworks.com
|
20.2
|
Change of address
|
20.3
|
No effect on other rights
|
21.
|
MISCELLANEOUS
|
21.1
|
Alterations
|
21.2
|
Approvals and consents
|
21.3
|
Assignment
|
21.4
|
Survival
|
21.5
|
Counterparts
|
21.6
|
No merger
|
21.7
|
Further action
|
21.8
|
Waiver
|
21.9
|
Severance
|
|
(a)
|
the provision will be read down to the extent necessary to avoid that result; and
|
|
(b)
|
if the provision cannot be read down, to that extent, it will be severed without affecting the validity and enforceability of the remainder of this Deed.
|
21.10
|
Power of attorney
|
21.11
|
Entire agreement
|
22.
|
GOVERNING LAW AND JURISDICTION
|
22.1
|
Law of Victoria
|
22.2
|
Parties to submit to jurisdiction
|
Executed by RA Investments I Comm. V.
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of authorised representative
PETER PARMENTIER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of authorised representative (block letters)
|
)
)
)
)
)
)
)
)
)
)
|
Executed by Riverside Capital Appreciation Fund V Investments Comm. V.
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of authorised representative
PETER PARMENTIER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of authorised representative
(block letters)
|
)
)
)
)
)
)
)
)
)
)
)
|
Signed, sealed and delivered by Robyn Walsh in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
NIAMH NOLAN DEACY
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Robyn Walsh
|
Executed by EW Pacific Pty Ltd
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Director
J. MIGUEL FERNANDEZ DE CASTRO
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of Director
(block letters)
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Director/ Company Secretary
CLARE ARGUEDAS
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of Director/ Company Secretary
(block letters)
|
Signed, sealed and delivered by Stu Baxter in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
KELCEY JAY POE
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Stu Baxter
|
Signed, sealed and delivered by Simon Feiglin in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
ELIZABETH JANE MOFFAT
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Simon Feiglin
|
Additional Sellers Deed
|
||
Those persons listed in Part A of Schedule 1
(together the Additional Sellers)
|
||
EW Pacific Pty Ltd
|
||
(Buyer)
|
||
relating to the sale and purchase of
MedHealth Holdings Pty Limited
ACN 141 218 215
(Company)
|
||
Jones Day
Level 41, Aurora Place
88 Phillip Street
Sydney NSW 2000
Tel: 61 2 8272 0500
Fax: 61 2 8272 0599
www.jonesday.com
|
Share Sale Deed
|
Operative provisions | 4 |
1.
|
INTERPRETATION
|
4
|
1.1
|
Definitions
|
4
|
1.2
|
Principal Sellers Deed Definitions
|
6
|
1.3
|
Interpretation
|
6
|
1.4
|
Reasonable endeavours
|
6
|
1.5
|
Cleared funds
|
7
|
2.
|
SALE OF SHARES
|
7
|
2.1
|
Sale and purchase
|
7
|
2.2
|
No partial sale
|
7
|
2.3
|
Waiver of pre-emption rights
|
7
|
3.
|
PURCHASE PRICE
|
7
|
4.
|
COMPLETION
|
7
|
4.1
|
Completion date and place
|
7
|
4.2
|
Additional Sellers’ obligations
|
7
|
4.3
|
Buyer's obligations
|
7
|
4.4
|
Simultaneous Completion and interdependency
|
8
|
5.
|
WARRANTIES AND INDEMNITIES
|
8
|
5.1
|
Buyer’s warranties
|
8
|
5.2
|
Additional Sellers’ Warranties and indemnities
|
8
|
5.3
|
Reliance by Buyer
|
8
|
6.
|
LIMITATION ON LIABILITIES
|
8
|
6.1
|
General limitations
|
8
|
6.2
|
Contingent Claims
|
9
|
6.3
|
Maximum claim amount and several and proportionate liability
|
9
|
6.4
|
Mitigation
|
10
|
6.5
|
Related Benefits
|
10
|
6.6
|
No Double Recovery
|
10
|
6.7
|
Refund of Purchase Price
|
10
|
6.8
|
Independent limitations
|
10
|
6.9
|
Excluded Warranties
|
10
|
6.10
|
Circumstances where limitations do not apply
|
10
|
6.11
|
Excluded Conduct
|
10
|
7.
|
CLAIMS PROCEDURE
|
11
|
7.1
|
Written notice of Claims
|
11
|
7.2
|
Claim Dispute
|
11
|
7.3
|
Recovery Amount
|
12
|
8.
|
RECORDS RETENTION
|
12
|
9.
|
CONFIDENTIALITY
|
13
|
9.1
|
Primary obligation
|
13
|
9.2
|
Permitted disclosure
|
13
|
9.3
|
Security and control
|
13
|
10.
|
DISPUTE RESOLUTION
|
13
|
10.1
|
Dispute
|
13
|
10.2
|
General Dispute Notice
|
13
|
10.3
|
Parties to try to settle Dispute
|
13
|
10.4
|
Arbitration
|
14
|
10.5
|
Relief
|
14
|
11.
|
GST
|
14
|
11.1
|
Interpretation
|
14
|
11.2
|
General
|
15
|
11.3
|
GST payable
|
15
|
11.4
|
Recovery of GST payable
|
15
|
11.5
|
Reimbursement or indemnity payment
|
15
|
11.6
|
Variation of GST
|
15
|
12.
|
COSTS AND STAMP DUTY
|
15
|
12.1
|
Costs
|
15
|
12.2
|
Stamp duty
|
15
|
13.
|
NOTICES
|
16
|
13.2
|
Change of address
|
17
|
13.3
|
No effect on other rights
|
17
|
14.
|
MISCELLANEOUS
|
17
|
14.1
|
Alterations
|
17
|
14.2
|
Approvals and consents
|
17
|
14.3
|
Assignment
|
17
|
14.4
|
Survival
|
17
|
14.5
|
Counterparts
|
17
|
14.6
|
No merger
|
17
|
14.7
|
Further action
|
17
|
14.8
|
Waiver
|
18
|
14.9
|
Severance
|
18
|
14.10
|
Power of attorney
|
18
|
14.11
|
Entire Agreement
|
18
|
15.
|
GOVERNING LAW AND JURISDICTION
|
18
|
15.1
|
Law of Victoria
|
18
|
15.2
|
Parties to submit to jurisdiction
|
18
|
SCHEDULE 1 | : THE PRINCIPAL SELLERS AND ADDITIONAL SELLERS |
19
|
SCHEDULE 2 |
: WARRANTIES
|
21
|
SCHEDULE 3 |
: BUYER'S WARRANTIES
|
22
|
Signing page | 23 |
Date
|
31 August 2012
|
Those persons listed in Part A of Schedule 1
(together the Additional Sellers)
EW Pacific Pty Ltd (ACN 160 098 162) of Level 6, 486 Albert Street East Melbourne VIC 3002.(the Buyer)
|
The Principal Sellers and the Additional Sellers together own the entire issued share capital of the Group in the proportions set out in Schedule 1.
|
B
|
The Principal Sellers have agreed to sell and the Buyer has agreed to purchase the Principal Shares in the Company on and subject to the terms and conditions set out in the Principal Sellers Deed.
|
C
|
The Additional Sellers have agreed to sell and the Buyer has agreed to purchase the Additional Shares in the Company on and subject to the terms and conditions set out in this Deed.
|
D
|
The completion of the sale of the Principal Shares and the Additional Shares shall occur simultaneously and are interdependent.
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
the number of fully paid class A preference shares in the Company set out next to the name of that Additional Seller in the second column of Schedule 1; or
|
|
(b)
|
all the class A preference shares in the Company held by the Additional Sellers.
|
|
(a)
|
the Company and Robyn Walsh; and
|
|
(b)
|
the Company and each Additional Seller,
|
|
(a)
|
the number of fully paid ordinary shares or class A preference shares in the Company set out next to the name of the Principal Seller in the second column of Schedule 1 of the Principal Sellers Deed; or
|
|
(b)
|
all the ordinary shares and class A preference shares in the Company held by the Principal Sellers.
|
1.2
|
Principal Sellers Deed Definitions
|
1.3
|
Interpretation
|
|
(a)
|
headings are included for convenience only and do not affect the interpretation of this Deed;
|
|
(b)
|
the singular includes the plural and vice versa, and a gender includes other genders;
|
|
(c)
|
another grammatical form of a defined word or expression has a corresponding meaning;
|
|
(d)
|
a reference to “this Deed” means this document including the schedules and appendices to it;
|
|
(e)
|
a reference to a clause, paragraph, schedule or appendix is to a clause or paragraph of, or schedule or appendix to, this Deed, and a reference to this Deed includes any schedule or appendix;
|
|
(f)
|
a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
|
|
(g)
|
a reference to $ or dollars is to Australian currency;
|
|
(h)
|
a reference to time is to Melbourne, Australia local time;
|
|
(i)
|
"including", "includes" and any similar expression are not words of limitation;
|
|
(j)
|
a reference to a party is to a party to this Deed, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
|
|
(k)
|
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
|
|
(l)
|
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
|
|
(m)
|
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Deed or any part of it; and
|
|
(n)
|
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
|
1.4
|
Reasonable endeavours
|
|
(a)
|
any obligation to commence any legal action or proceeding against any person to perform or provide the thing or to procure that thing is done or happens; or
|
|
(b)
|
to pay any money or to provide any financial compensation, valuable consideration or any other incentive to or for the benefit of any person except for payment of any applicable fee for lodgment or filing of any relevant application with any Governmental Agency.
|
1.5
|
Cleared funds
|
2.
|
SALE OF SHARES
|
2.1
|
Sale and purchase
|
2.2
|
No partial sale
|
2.3
|
Waiver of pre-emption rights
|
3.
|
PURCHASE PRICE
|
|
(a)
|
The purchase price for each Additional Seller’s Additional Shares is that Additional Seller’s Proportional Entitlement (Purchase Price).
|
|
(b)
|
The purchase price for the aggregate of the Additional Shares is the aggregate of the Additional Sellers’ Proportional Entitlements (Aggregate Purchase Price).
|
4.
|
COMPLETION
|
4.1
|
Completion date and place
|
4.2
|
Additional Sellers’ obligations
|
4.3
|
Buyer's obligations
|
4.4
|
Simultaneous Completion and interdependency
|
|
(a)
|
The sale and purchase of the Principal Shares and Additional Shares held by each Principal Seller and Additional Seller respectively must occur simultaneously.
|
|
(b)
|
The parties’ obligations at Completion are interdependent so that a thing done at Completion by a party is conditional on and is not taken as done until all things required at Completion are done.
|
5.
|
WARRANTIES AND INDEMNITIES
|
5.1
|
Buyer’s warranties
|
|
(a)
|
The Buyer:
|
|
(i)
|
represents and warrants to the Additional Sellers that each of the Buyer’s Warranties is correct and not misleading on the Completion Date; and
|
|
(ii)
|
indemnifies the Additional Sellers against any Liability to the extent that the Liability is for a breach of any Buyer Warranty.
|
|
(b)
|
The Buyer acknowledges that it has given the Buyer Warranties to the Additional Sellers with the intention of inducing the Additional Sellers to enter into this Deed with the Buyer, and that the Additional Sellers have entered into this Deed on the basis of, and in reliance on, the Buyer Warranties.
|
5.2
|
Additional Sellers’ Warranties and indemnities
|
|
(a)
|
represents and warrants to the Buyer that each of the Warranties (so far as they relate to that Additional Seller or that Additional Seller’s Additional Shares) is correct and not misleading on the Completion Date (except that a Warranty stated to be made at some other date, is made only at that date); and
|
|
(b)
|
indemnify the Buyer (subject at all times to any applicable provisions in clause 6) against any Liability to the extent that the Liability is for a breach of the Warranties.
|
5.3
|
Reliance by Buyer
|
6.
|
LIMITATION ON LIABILITIES
|
6.1
|
General limitations
|
|
(a)
|
(search results) to the extent that the fact, matter or circumstance giving rise to the Liability was disclosed on any public registers maintained by the Australian Securities and Investments Commission on 7 May 2012 or the personal property securities register maintained by the Insolvency and Trustee Service Australia on 10 May 2012.
|
|
(b)
|
(general) to the extent that the Liability:
|
|
(i)
|
arises as a result of the enactment or amendment of any Law after Completion (whether or not with any retrospective effect);
|
|
(ii)
|
arises as a result of the Buyer or any of its Related Entities applying different accounting methods or concepts in respect of one or more of the Group Companies after Completion, or as a result of a change in Accounting Standards or the Accounting Principles after Completion;
|
|
(iii)
|
is attributable to anything done or not done after Completion by the Buyer, its Related Entities or Representatives; or
|
|
(iv)
|
is in respect of any Forward Looking Information;
|
|
(c)
|
(consequential loss) to the extent that the Claim or Liability is for special, indirect or consequential loss or damage including loss of profit;
|
|
(d)
|
(recovered) to the extent that the Claim or Liability is made good or compensated for by way of payment received by the Buyer;
|
|
(e)
|
(compliance with claim procedure) to the extent that the Claim or Liability is for a breach of a Warranty or is under the Indemnity and to the extent to which:
|
|
(i)
|
the Buyer’s non-compliance with the Claim procedure set out in clause 7 has increased the Claim or Liability; or
|
|
(ii)
|
compliance with the Claim procedure set out in clause 7 would have decreased the Claim or Liability;
|
|
(f)
|
(change of ownership) to the extent that the Claim or Liability has arisen as a result of
|
|
(i)
|
a restructure of the Business, the Company or the Group after Completion; or
|
|
(ii)
|
a cessation or alteration of the Business after Completion; or
|
|
(g)
|
(time limits for Warranties) unless the Buyer has given written notice to the Additional Sellers notifying them of the Claim which gives rise to the Liability by no later than 7 years after the Completion Date (Warranty Expiry Date).
|
6.2
|
Contingent Claims
|
|
(a)
|
The Additional Sellers will not be liable for any Liability for any breach of the Warranties or any Claim or Liability under an Indemnity to the extent that the Claim or Liability is contingent, prospective, not ascertained or not ascertainable unless legal proceedings in respect of the Claim or Liability have been issued and served by the Buyer on the Additional Sellers, by no later than 3 months after the Warranty Expiry Date.
|
|
(b)
|
For the purposes of clause 6.2(a) legal proceedings will not be deemed to have been commenced unless they have been properly issued and validly served upon the Additional Sellers.
|
6.3
|
Maximum claim amount and several and proportionate liability
|
|
(a)
|
a breach by that Additional Seller of the Warranties; or
|
|
(b)
|
under the Indemnity in connection with such a breach,
|
6.4
|
Mitigation
|
6.5
|
Related Benefits
|
6.6
|
No Double Recovery
|
6.7
|
Refund of Purchase Price
|
|
(a)
|
Any monetary compensation received by the Buyer as a result of any breach by the Additional Sellers of any of the Warranties or as a result of any Claim by the Buyer under the Indemnity will be in pro rata reduction and refund of the Purchase Price.
|
|
(b)
|
Any monetary compensation received by an Additional Seller as a result of any breach by the Buyer of any of the Buyer Warranties or as a result of any Claim by an Additional Seller under the Buyer Indemnity will be a pro rata increase in the Purchase Price.
|
6.8
|
Independent limitations
|
6.9
|
Excluded Warranties
|
6.10
|
Circumstances where limitations do not apply
|
6.11
|
Excluded Conduct
|
|
(a)
|
in deciding to enter into this Deed and proceed to Completion, it has not relied on any express or implied (whether written or oral) statement, representation, warranty, term, condition, forecast or promise made, or other conduct engaged in, by the Additional Sellers in connection with the sale of the Company (Excluded Conduct), which is not expressly set out in this Deed;
|
|
(b)
|
unless a statute provides otherwise, neither the Additional Sellers nor their Representatives have any Liability to the Buyer, their Related Entities or their Representatives for any Claim arising from, or connected with, any Excluded Conduct;
|
|
(c)
|
to the maximum extent permitted by Law, the Buyer and its Related Entities irrevocably waive and release the Additional Sellers and their Representatives from any Liability for, or in connection with, any Excluded Conduct; and
|
|
(d)
|
in deciding to proceed to Completion, it has done so after having conducted a full inspection and investigation of the Group and the Business to its satisfaction, including, without limitation, a full review and assessment of the Disclosures.
|
7.
|
CLAIMS PROCEDURE
|
7.1
|
Written notice of Claims
|
|
(a)
|
within 14 Business Days after the date when the matter first comes to the Buyer’s attention, give a written notice to the Additional Seller of all relevant details of the Claim (a Claim Notice), including:
|
|
(i)
|
the Additional Seller it claims has breached Warranty;
|
|
(ii)
|
full details of any facts, matters or circumstances in relation to the Claim;
|
|
(iii)
|
the Warranty or Indemnity that is the subject of the Claim; and
|
|
(iv)
|
the monetary amount of the Liability incurred (or estimated to be incurred) in respect of the Claim; and
|
|
(b)
|
provide the relevant Additional Seller with all information and documents reasonably requested to allow the relevant Additional Seller to determine whether or not to give a Claim Dispute Notice and if so to determine the contents of the Claim Dispute Notice.
|
7.2
|
Claim Dispute
|
|
(a)
|
in detail the reason why the Additional Seller disputes the Claim Notice; and
|
|
(b)
|
the monetary amount (if any) admitted by the Additional Seller as being owing to the Buyer for the Liability incurred or estimated to be incurred in respect of the Claim (together a Claim Dispute Notice), following which the Claim Dispute must be dealt with in accordance with clause 10.
|
7.3
|
Recovery Amount
|
|
(a)
|
written notice to the relevant Additional Seller if it receives any amount by way of payment, credit, compensation or recovery after the Completion Date in respect of any Liability which the Buyer has wholly or partially recovered from an Additional Seller within 10 Business Days of the amount being recovered (Recovery Amount); and
|
|
(b)
|
pay the Recovery Amount to the relevant Additional Seller within the same 10 Business Day period less all costs incurred by the Buyer or Group Company in recovering the Recovery Amount and any Tax payable by the Buyer or Group Company as a result of receiving the Recovery Amount.
|
8.
|
RECORDS RETENTION
|
|
(a)
|
The Buyer must retain or procure the retention of the Records for 7 years after the Completion Date.
|
|
(b)
|
Upon an Additional Seller or its Representatives’ prior written request on reasonable notice, the Buyer must make available to the Additional Seller or its Representatives for inspection or copying the Records reasonably required by the Additional Seller:
|
|
(i)
|
to enable the Additional Seller to prepare accounts, tax returns and other statutory returns relating wholly or partly to any period before Completion; or
|
|
(ii)
|
in connection with the prosecution or defence of any claim by or against any Additional Seller relating to a Group Company, the Business or this Deed.
|
|
(c)
|
Upon the Buyer’s prior written request on reasonable notice, an Additional Seller must make available to the Buyer or its Representatives for inspection or copying the Records reasonably required by the Buyer:
|
|
(i)
|
to enable the Buyer to prepare accounts, tax returns and other statutory returns relating wholly or partly to any period before Completion; or
|
|
(ii)
|
in connection with the prosecution or defence of any claim by or against the Buyer or a Group Company relating to a Group Company, the Business or this Deed,
|
|
(d)
|
No Additional Seller is required to comply with any request under clause 8(c) to the extent that doing so will breach any obligation of confidentiality or result in a waiver of privilege in relation to that document. The cost of any inspection or copying of the Records will be borne by the Buyer.
|
9.
|
CONFIDENTIALITY
|
9.1
|
Primary obligation
|
|
(a)
|
subject to clauses 9.2 and 9.3, keep the Confidential Information confidential;
|
|
(b)
|
not use the Confidential Information for the Receiving Party’s own or another’s advantage, or to the competitive disadvantage of the party disclosing the Confidential Information (Disclosing Party); and
|
|
(c)
|
not copy or duplicate or allow the copying or duplication of any Confidential Information.
|
9.2
|
Permitted disclosure
|
|
(a)
|
A party may disclose Confidential Information:
|
|
(i)
|
to its professional advisers, bankers, financial advisers, equity or debt financiers or any of its employees to whom it is necessary to disclose the Confidential Information, if those persons undertake to keep the Confidential Information confidential;
|
|
(ii)
|
pursuant to any applicable law or court order, or to a Governmental Agency or stock exchange or in order to comply with its obligations under this Deed; or
|
|
(iii)
|
for the purposes of issuing, defending or participating in legal proceedings.
|
9.3
|
Security and control
|
|
(a)
|
take all reasonable proper and effective precautions to maintain the confidential nature of the Confidential Information; and
|
|
(b)
|
immediately notify the Disclosing Party of any potential, suspected or actual unauthorised access, disclosure, copying or use or breach of this clause 9.
|
10.
|
DISPUTE RESOLUTION
|
10.1
|
Dispute
|
10.2
|
General Dispute Notice
|
10.3
|
Parties to try to settle Dispute
|
10.4
|
Arbitration
|
|
(a)
|
If a Dispute has not been resolved by the disputing parties within 10 Business Days of the date of the General Dispute Notice (Notice Period), either party may submit the Dispute to ACICA for determination in accordance with this clause 10.4.
|
|
(b)
|
The arbitrator of any Dispute referred to ACICA will be an independent person appointed by ACICA.
|
|
(c)
|
The arbitration will be held in Melbourne, Victoria and must be conducted in accordance with the laws of Victoria, Australia and according to the ACICA Arbitration Rules.
|
|
(d)
|
Subject to clause 10.4(e), each party to the Dispute will bear its own costs connected to the arbitration.
|
|
(e)
|
Half of the costs of the arbitration and the arbitration centre will be borne by the Additional Seller and half of those costs will be borne by the Buyer.
|
|
(f)
|
The arbitrator’s determination in relation to the matter shall be final and binding on the parties to the dispute.
|
|
(g)
|
If the Dispute relates to a Claim under a warranty or indemnity in this Deed then:
|
|
(i)
|
the purpose of the arbitration referred to ACICA will be to determine the monetary amount of the Liability incurred arising out of the Claim which is the subject of the Dispute Notice; and
|
|
(ii)
|
the arbitrator’s determination under clause 10.4(e) must state in writing the monetary amount of the Liability incurred arising out of the Claim which is the subject of the Dispute Notice (Determined Amount).
|
|
(h)
|
No later than 20 Business Days after a determination by the arbitrator referred to under clause 10.4(e), the party against whom the determination is made must pay an amount equal to the Determined Amount to the other party.
|
10.5
|
Relief
|
|
(a)
|
Nothing in this clause 10 will limit the ability of any party to seek urgent injunctive relief or other equitable relief in relation to any Claim or Liability.
|
|
(b)
|
Failure by a party to a Dispute to attempt to comply with this clause 10 may be pleaded as a bar to proceedings initiated by that party, except in the case of proceedings requesting urgent relief.
|
11.
|
GST
|
11.1
|
Interpretation
|
|
(a)
|
Unless the context suggests otherwise, expressions used in this clause 11 have the same meanings given to those expressions in the GST Law.
|
|
(b)
|
Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 11.
|
11.2
|
General
|
11.3
|
GST payable
|
|
(a)
|
To the extent that any supply made under or in connection with this Deed is a taxable supply by a party (Supplier), the GST exclusive consideration otherwise payable or to be provided by any other party (Recipient) for that supply is increased by an additional amount equal to that other consideration multiplied by the rate at which GST is imposed in respect of the supply, and that additional amount is payable by the Recipient at the same time as the other consideration is payable or to be provided.
|
|
(b)
|
The Supplier must provide the Recipient with a valid tax invoice before being entitled to receive payment of the additional amount under clause 11.3(a).
|
11.4
|
Recovery of GST payable
|
11.5
|
Reimbursement or indemnity payment
|
11.6
|
Variation of GST
|
12.
|
COSTS AND STAMP DUTY
|
12.1
|
Costs
|
12.2
|
Stamp duty
|
|
(a)
|
The Buyer must pay all stamp duty payable in connection with the sale of the Additional Shares under this Deed when due.
|
|
(b)
|
The Buyer indemnifies each of the Additional Sellers against any Liability to the extent that the Liability is for stamp duty payable in connection with the sale of their Additional Shares under this Deed (including any fines or penalties).
|
13.
|
NOTICES
|
|
(a)
|
Subject to clause 13, notices may be served either by delivery to a party personally, by posting to the party's last known address by pre-paid ordinary mail or facsimile or email, or if the address is outside Australia, by pre-paid air mail for facsimile to the party's last known address for service.
|
|
(b)
|
Any notice or other written correspondence provided by a party to another party under this Deed, including without limitation, any notices or correspondence given pursuant to clauses 7 and 10, must be copied to the Additional Sellers’ Representative.
|
|
(c)
|
If a communication is given by:
|
|
(i)
|
post, it is taken as received if posted within Australia to an Australian address 3 Business Days (in place of receipt) after posting;
|
|
(ii)
|
facsimile, when the sender's facsimile machine produces a report that the fax was sent in full to the addressee, the report will be prima facie evidence that the facsimile was received by the addressee in legible form at the time indicated on that report; or
|
|
(iii)
|
by email, it is taken as received where the sender receives a delivery confirmation report which records the time that the email was delivered to the addressee’s last notified email address, unless the sender receives a delivery failure notification indicating that the electronic mail has not been delivered to the addressee.
|
|
(d)
|
Each party may from time to time change its particulars for service by notice to each other party, however, the particulars for services initially are as follows:
|
Additional
Sellers’
Representative
|
||
Address:
|
Level 6, 486 Albert Street
East Melbourne VIC 3002
|
|
Attention:
|
Adam Goldberger
|
|
Facsimile:
|
03 9650 2255
|
|
Email:
|
goldbergera@mlcoa.com.au
|
|
Additional Sellers
|
Notice details for each Additional Seller are set out in Schedule 1.
|
|
Buyer
|
||
Address:
|
ExamWorks
3280 Peachtree Road
Suite 2625
Atlanta GA 30305
|
Attention:
|
Mr Miguel Fernandez de Castro
Chief Financial Officer
|
|
Facsimile:
|
1 404 846 1554
|
|
Email:
|
miguel.fernandez@examworks.com
|
13.2
|
Change of address
|
13.3
|
No effect on other rights
|
14.
|
MISCELLANEOUS
|
14.1
|
Alterations
|
14.2
|
Approvals and consents
|
14.3
|
Assignment
|
14.4
|
Survival
|
14.5
|
Counterparts
|
14.6
|
No merger
|
14.7
|
Further action
|
14.8
|
Waiver
|
14.9
|
Severance
|
|
(a)
|
the provision will be read down to the extent necessary to avoid that result; and
|
|
(b)
|
if the provision cannot be read down, to that extent, it will be severed without affecting the validity and enforceability of the remainder of this Deed.
|
14.10
|
Power of attorney
|
14.11
|
Entire Agreement
|
15.
|
GOVERNING LAW AND JURISDICTION
|
15.1
|
Law of Victoria
|
15.2
|
Parties to submit to jurisdiction
|
Executed by EW Pacific Pty Ltd
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Director
J. MIGUEL FERNANDEZ DE CASTRO
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of Director
(block letters)
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Director/ Company Secretary
CLARE ARGUEDAS
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name of Director/ Company Secretary
(block letters)
|
Signed, sealed and delivered by Clive Sher in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
KAREN BUTLER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Clive Sher
|
Signed, sealed and delivered by Adam Goldberger in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
KAREN BUTLER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Adam Goldberger
|
Signed, sealed and delivered by Robert Jackson in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
ADAM GOLDBERGER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Robert Jackson
|
Signed, sealed and delivered by Suzan Drew in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
RAEWYN MICHELLE CARSE
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Suzan Drew
|
Signed, sealed and delivered by David Camilleri in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
KAREN BUTLER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of David Camilleri
|
Signed, sealed and delivered by Jennifer Boyd in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
PETER JOHN TREVETHAN
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Jennifer Boyd
|
Signed, sealed and delivered by Kymberley Pitstock in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
JESSICA LEE FONG
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Kymberley Pitstock
|
Signed, sealed and delivered by Corrine Law-Davis in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
KATIE DIMITRIADIS
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Corrine Law-Davis
|
Signed, sealed and delivered by Jane Yarham in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
CERI MCCUTCHEON
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Jane Yarham
|
Signed, sealed and delivered by Michelle Carse in the presence of:
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Witness
SUZAN DREW
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Full name of witness
|
)
)
)
)
)
)
)
)
)
)
)
|
/S/
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Michelle Carse
|