Delaware | 5075 Kimberly Way Loudon, Tennessee 37774 | 46-4024640 | ||
(State or other jurisdiction of incorporation or organization) | (Address of principal executive offices, including zip code) | (I.R.S. Employer Identification No.) | ||
(865) 458-5478 | ||||
(Registrant’s telephone number, including area code) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Name and Principal Position | Year | Salary | Bonus | Stock Awards | Option Awards | Non-Equity Incentive Plan Compensation | Nonqualified Deferred Compensation Earnings | All Other Compensation | Total | ||||||||||||||||
Jack Springer | 2014 | $ | 339,423 | $ | 58,174 | $ | 1,263,289 | $ | — | $ | 288,750 | $ | — | $ | 2,600 | $ | 1,952,236 | ||||||||
Wayne Wilson | 2014 | $ | 206,157 | $ | 79,976 | $ | 836,519 | $ | — | $ | 122,500 | $ | — | $ | 19,600 | $ | 1,264,752 | ||||||||
Ritchie Anderson | 2014 | $ | 167,571 | $ | 17,361 | $ | 836,519 | $ | — | $ | 80,000 | $ | — | $ | 19,600 | $ | 1,121,051 |
Exhibit No. | Description | |
2.1 | Share Sale Agreement, dated October 2, 2014 among Malibu Australian Acquisition Corp., Malibu Boats, Inc., Xavier Stuart West and Malibu Boats Pty Ltd. | |
10.1 | Settlement Agreement dated September 29, 2014, by and among Malibu Boats, Inc., Marine Hardware, Inc., Tressmark, Inc. d/b/a/ Liquid Sports Marine, MH Window, LLC, John F. Pugh, Pacific Coast Marine Windshields Ltd. and Darren Bach. | |
10.2 | Third Amendment to Credit Agreement, dated October 1, 2014, by and among, Malibu Boats, LLC, Malibu Boats Holdings, LLC, the other guarantors party thereto, the lenders party thereto, and SunTrust Bank, as administrative agent, as issuing bank and as swingline lender. |
Malibu Boats, Inc. | ||||||
Date: October 3, 2014 | By: | /s/ Jack Springer | ||||
Jack Springer | ||||||
Chief Executive Officer |
Exhibit No. | Description | ||||
2.1 | Share Sale Agreement, dated October 2, 2014 among Malibu Australian Acquisition Corp., Malibu Boats, Inc., Xavier Stuart West and Malibu Boats Pty Ltd. | ||||
10.1 | Settlement Agreement dated September 29, 2014, by and among Malibu Boats, Inc., Marine Hardware, Inc., Tressmark, Inc. d/b/a/ Liquid Sports Marine, MH Window, LLC, John F. Pugh, Pacific Coast Marine Windshields Ltd. and Darren Bach. | ||||
10.2 | Third Amendment to Credit Agreement, dated October 1, 2014, by and among, Malibu Boats, LLC, Malibu Boats Holdings, LLC, the other guarantors party thereto, the lenders party thereto, and SunTrust Bank, as administrative agent, as issuing bank and as swingline lender. |
Share Sale Agreement |
BETWEEN |
MALIBU AUSTRALIAN ACQUISITION CORP. |
AND |
MALIBU BOATS, INC. |
AND |
XAVIER STUART WEST |
AND |
MALIBU BOATS PTY LTD |
2 | Condition Precedent | 9 | ||||
2.1 | Condition Precedent to Completion | 9 | ||||
2.2 | Reasonable endeavors | 9 | ||||
2.3 | Waiver of Condition Precedent | 9 | ||||
2.4 | End date | 9 | ||||
2.5 | Effect of termination | 9 | ||||
2.6 | Accounts form part of agreement | 9 | ||||
3 | Agreement to sell and purchase the Shares | 9 | ||||
3.1 | Sales and purchase of Shares | 9 | ||||
3.2 | Purchase price | 10 | ||||
3.3 | Scrip Consideration | 10 | ||||
3.4 | Scrip Consideration Restrictions | 10 | ||||
4 | Stocktake | 11 | ||||
4.1 | Conduct of stocktake | 11 | ||||
4.2 | Vale of Stock | 11 | ||||
4.3 | Disputes | 12 | ||||
4.4 | Final Stock value | 13 | ||||
5 | Pre-Completion Matters | 13 | ||||
5.1 | Payment of dividend | 13 | ||||
5.2 | Provision for cash reserves | 13 | ||||
5.3 | Related party indebtedness | 13 | ||||
5.4 | Surplus Assets | 14 | ||||
5.5 | Notice to Vendor | 14 | ||||
5.6 | Stocktake and financial matters | 14 | ||||
6 | Conduct of the Business until Completion | 14 | ||||
6.1 | Disposal of Assets | 14 | ||||
6.2 | Contractual Commitments | 14 | ||||
6.3 | Conduct of Business | 14 | ||||
6.4 | Capital structure | 15 | ||||
7 | Completion | 15 | ||||
7.1 | Time and place for Completion | 15 | ||||
7.2 | Vendor’s obligations on Completion | 15 | ||||
7.3 | Completion Board Meeting | 16 | ||||
7.4 | Obligations of Purchaser and Malibu US at Completion | 16 | ||||
7.5 | Company’s obligations at Completion | 16 | ||||
7.6 | Interdependence | 17 | ||||
7.7 | Acknowledgement | 17 | ||||
8 | Post Completion | 17 |
8.1 | Title, property and risk of the Shares | 17 | ||||
8.2 | Vendor’s obligation until registration of the Shares | 17 | ||||
8.3 | Access to records for Vendor after Completion | 17 | ||||
8.4 | Customer enquiries | 17 | ||||
8.5 | Restriction on use of business names, domain names and trade marks | 17 | ||||
9 | Completion Statement | 18 | ||||
9.1 | Cash reserves and Stock level at Adjustment Date | 18 | ||||
9.2 | Preparation of Completion Statement | 18 | ||||
9.3 | Review | 18 | ||||
9.4 | Access to information | 18 | ||||
9.5 | Disputes | 18 | ||||
9.6 | Payment of Adjustment Amount | 18 | ||||
10 | Dispute Resolution – Completion Statement / Adjustment Amount | 19 | ||||
10.1 | Disputes | 19 | ||||
10.2 | Dispute Notice | 19 | ||||
10.3 | Good faith discussions | 19 | ||||
10.4 | Appointment of Expert | 19 | ||||
10.5 | Qualifications and independence of Expert | 19 | ||||
10.6 | Expert Determination | 19 | ||||
10.7 | Exception | 20 | ||||
11 | Warranties | 20 | ||||
11.1 | Warranties | 20 | ||||
11.2 | Exceptions for disclosures and public records | 21 | ||||
11.3 | Fairly disclosed | 21 | ||||
11.4 | Indemnity | 21 | ||||
11.5 | Sole Remedy | 21 | ||||
11.6 | Purchaser's Warranties | 22 | ||||
11.7 | Malibu US’s Warranties | 22 | ||||
12 | Limitations of liability | 22 | ||||
12.1 | No reliance on and no liability for matters outside this agreement | 22 | ||||
12.2 | Purchaser and Malibu US’s acknowledgment | 22 | ||||
12.3 | Limitations of liability | 23 | ||||
12.4 | Maximum liability for claims | 23 | ||||
12.5 | Reimbursement for amounts recovered | 23 | ||||
12.6 | Third party claims | 23 | ||||
12.7 | Breach of Exclusive Manufacture and Distribution Agreement | 25 | ||||
12.8 | No double claims | 25 | ||||
12.9 | Adjustment to Purchase Price | 25 | ||||
12.10 | Forward-looking statements | 25 | ||||
12.11 | Mitigation | 25 | ||||
12.12 | Indirect and consequential loss | 25 | ||||
13 | Defective Products | 26 | ||||
13.1 | Acknowledgements | 26 | ||||
13.2 | Vendor’s exclusion of liability for Defective Products | 26 | ||||
14 | Restraint | 27 | ||||
14.1 | Definitions | 27 | ||||
14.2 | Non-competition | 27 | ||||
14.3 | Non-interference | 28 | ||||
14.4 | Non-solicitation of employees | 28 | ||||
14.5 | Exceptions | 28 | ||||
14.6 | Other prohibitions | 28 | ||||
14.7 | Independent restraints | 28 | ||||
14.8 | Restraints reasonable in scope and duration | 29 | ||||
15 | Guarantee and Indemnity | 29 | ||||
15.1 | Malibu US’s primary undertaking | 29 | ||||
15.2 | Extent of guarantee and indemnity | 29 | ||||
15.3 | Principal and independent obligation | 30 | ||||
15.4 | Enforcement against Malibu US | 30 | ||||
15.5 | Mitigation | 30 | ||||
16 | Confidentiality and Announcement | 30 | ||||
16.1 | Dictionary | 30 | ||||
16.2 | Confidentiality obligations | 31 | ||||
16.3 | Exceptions to confidentiality obligations | 31 | ||||
16.4 | Announcements | 31 | ||||
16.5 | Survival | 31 | ||||
17 | GST | 31 | ||||
17.1 | Definitions | 31 | ||||
17.2 | Consideration is GST Exclusive | 32 | ||||
17.3 | Taxable Supply | 32 | ||||
17.4 | Tax Invoice | 32 | ||||
17.5 | Penalties and Interest | 32 | ||||
17.6 | Reimbursement and Indemnity Payments | 32 | ||||
18 | Notices | 32 | ||||
18.1 | Form of Notice | 32 | ||||
18.2 | Address for service | 33 | ||||
19 | General | 33 | ||||
19.1 | Further assurances | 33 | ||||
19.2 | Non-merger of provisions | 33 | ||||
19.3 | Waiver | 33 | ||||
19.4 | Confidentiality | 34 | ||||
19.5 | Approvals and consents | 34 |
19.6 | No amendments without agreement | 34 | ||||
19.7 | Assignment | 34 | ||||
19.8 | Contra proferentem excluded | 34 | ||||
19.9 | Costs, expenses and stamp duty | 34 | ||||
19.10 | Independent Legal Advice | 34 | ||||
19.11 | Counterparts | 34 | ||||
19.12 | Enforcement of indemnities | 34 | ||||
19.13 | Exercise of rights | 35 | ||||
19.14 | Jurisdiction | 35 | ||||
19.15 | Attorneys | 35 | ||||
Schedule 1 | Details of the Company | 36 | ||||
Schedule 2 | Warranties | 37 | ||||
1 | Vendor | 37 | ||||
2 | Title to Shares | 37 | ||||
3 | Extent of interest in the Company | 37 | ||||
4 | The Company | 37 | ||||
5 | The Business and the Assets | 37 | ||||
6 | The Properties | 38 | ||||
7 | Financial Position | 39 | ||||
8 | Records | 39 | ||||
9 | Data Room and Disclosure Letter | 40 | ||||
10 | Plant and Equipment and Stock | 40 | ||||
11 | Contracts | 40 | ||||
12 | Intellectual property | 41 | ||||
13 | Employees | 41 | ||||
14 | Superannuation | 42 | ||||
15 | Environment and licensing | 42 | ||||
16 | Absence of litigation | 43 | ||||
17 | Compliance with laws | 44 | ||||
18 | Insurance | 44 | ||||
19 | No related party contracts | 44 | ||||
20 | Taxation | 44 | ||||
21 | Scrip Consideration | 45 | ||||
Schedule 3 | Purchaser’s Warranties | 48 | ||||
Schedule 4 | Malibu US’s Warranties | 49 | ||||
Schedule 5 | Plant and Equipment | 50 | ||||
Schedule 6 | Employees | 51 | ||||
Schedule 7 | New Property Leases | 52 | ||||
Schedule 8 | Key Person Employment Agreement | 53 | ||||
Schedule 9 | Completion Statement | 54 | ||||
Schedule 10 | Stock valuation principles | 55 | ||||
Schedule 11 | Third Party Intellectual Property | 56 | ||||
Execution Page | 57 | |||||
Annexure A | Disclosure Material | 59 | ||||
Annexure B | Unqualified audit opinion terms | 60 |
Annexure C | Disclosure Letter | 61 | ||||
Annexure D | Property Termination and Release Deed | 62 | ||||
Annexure E | Agreed Announcement | 63 | ||||
Annexure F | Mutual Release Deed | 64 |
A. | The Vendor is the legal and beneficial holder of the Shares. |
B. | The Vendor has agreed to sell, and the Purchaser has agreed to buy, the Shares on the terms and conditions of this agreement. |
C. | Malibu US is the ultimate holding company of the Purchaser. |
D. | In consideration of the Vendor entering into this agreement with the Purchaser, Malibu US has agreed to: |
(i) | issue the Scrip Consideration in accordance with the terms of this agreement and the applicable law; and |
(ii) | guarantee the obligations of the Purchaser under this agreement and indemnify the Vendor for any failure by the Purchaser to carry out those obligations. |
E. | This agreement has been prepared to reflect the following key commercial principles: |
(i) | Malibu US and the Purchaser have a high level of knowledge about the Business through the long term trading relationship between the Company and Malibu LLC, and have completed a due diligence investigation. The Vendor has agreed to provide a warranty package which reflects the Purchaser’s and Malibu US’s high level of knowledge about the Business. |
(ii) | The Vendor will have no ongoing liability for Defective Products. |
(iii) | The Purchaser has agreed to the Company committing to long term leases of the Properties (which are owned by entities associated with the Vendor). |
(iv) | The Vendor must ensure that there is no related party indebtedness between the Company and the Vendor (or any entities associated with the Vendor) at the Adjustment Date. |
(v) | The Vendor has agreed to ensure that the Company holds a certain minimum amount of cash and Stock as at the Adjustment Date. |
(vi) | The Vendor has agreed to consult to the Business in accordance with the Key Person Employment Agreement, following Completion. |
1 | Definitions and Interpretation |
1.1 | Dictionary |
(a) | the goodwill of the Company and the Business; |
(b) | all the stock-in-trade relating to the Business held by or in the possession of the Vendor and prepaid goods in transit, including all raw materials, factory supplies, components, work in progress, finished goods, packaging materials and spare parts; |
(c) | the Business Intellectual Property; |
(d) | the rights to use the Third Party Intellectual Property; |
(e) | the Plant and Equipment; |
(f) | the Business Records; and |
(g) | the Contracts, |
(a) | all information relating to the Company, the Business or the Assets, including any information in relation to the past, present or future commercial, financial, legal, business, strategic, technology or other affairs of the Company or of any customer of the Company and any other information that is of a confidential nature regarding the Company, the Business or any customer of the Company; and |
(b) | all information derived partly or wholly from any of the information referred to in paragraph (a) of this definition, including any note, correspondence, agreement, memoranda, opinion, summary or analysis generated from, based upon or incorporating such information, |
(a) | the Business Confidential Information; and |
(b) | any other Intellectual Property Rights owned by the Company, |
(a) | “Malibu Boats”; and |
(b) | “Malibu Boats WA” which, as at the date of this agreement, is registered in the name of Liftzone Pty Ltd (ACN 124 365 564). |
(a) | the date that is three Business Days after the date on which the Condition Precedent is satisfied by the Vendor or waived by the Purchaser in accordance with clause 2 (as the case may be); or |
(b) | such other date as the Vendor and Purchaser agree in writing. |
(a) | not of merchantable quality; or |
(b) | not in accordance with any applicable specification(s); or |
(c) | not fit for their intended purpose; or |
(d) | otherwise defective or dangerous in any way whatsoever. |
(a) | all information and documents provided by or on behalf of the Vendor to the Purchaser, Malibu US and/or their respective advisers in the Data Room, an index of which is set out in Annexure A; |
(b) | the Disclosure Letter; and |
(c) | the Accounts. |
(a) | 813 Hope Court, North Albury, NSW 2640 (Lot 18 DP 1046388); and |
(b) | 823 Hope Court, North Albury, NSW 2640 (Lot 17 DP 1046388). |
(a) | being a body corporate: |
(i) | is insolvent as that term is defined in Section 9 of the Corporations Act; or |
(ii) | is the subject of an event described in Sections 459C(2) (a) to (f) or Section 585 of the Corporations Act (or it makes a statement from which a party to this agreement may reasonably deduce it is so subject); or |
(iii) | suffers the appointment of a controller, administrator, liquidator or provisional liquidator as those terms are defined in Section 9 of the Corporations Act; or |
(iv) | is dissolved; or |
(v) | has entered into any arrangement, compromise or assumption with, or assignment for the benefit of, its creditors or a class of them, other than to carry out an amalgamation or reconstruction while solvent; or |
(b) | is otherwise unable to pay its debts as and when they become due and payable, or has stopped, suspended or threatened to stop or suspend paying its debts as and when they become due and payable; or |
(c) | being a natural person: |
(i) | commits or suffers an act of bankruptcy; or |
(ii) | is an insolvent under administration; or |
(d) | suffers a similar event under the law of any jurisdiction. |
(a) | in relation to the Factory Complex, 21st Century Boats Pty Ltd (ACN 080 144 056) as trustee for the Hope Court Unit Trust; and |
(b) | in relation to the Storage Facility, 21st Century Superannuation Pty Ltd (ACN 163 910 487) as trustee for the 21st Century Superannuation Fund. |
(a) | a mortgage, a “security interest” (as that term is defined in the PPSA (whether or not attached or perfected in accordance with the PPSA), pledge, lien, hypothecation or title retention arrangement; |
(b) | a right of set off or right to withhold payment of a deposit or other money; |
(c) | a right of any person to purchase, occupy or use an asset (including under an option, agreement to purchase, licence, lease, or hire purchase); |
(d) | an easement, restrictive covenant, caveat or similar restriction over property (except an easement or covenant whose burden is noted on the certificate of title to the land concerned); and |
(e) | a trust or other third party interest, |
1.2 | Rules for interpretation |
(a) | the background, the schedules, the execution page and the annexures (if any) are each incorporated in and form part of this agreement; |
(b) | a reference to the singular includes the plural and vice versa; |
(c) | a reference to a given gender includes all other genders; |
(d) | other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning; |
(e) | words or phrases defined in the Corporations Act as at the date of this agreement have the corresponding meaning; |
(f) | use of the word including and similar expressions are not, nor are they to be interpreted as, words of limitation; |
(g) | a reference to a person includes a natural person, a company or other entities recognised by law; |
(h) | a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislation or legislative provision substituted for, that legislation or legislative provision; |
(i) | a reference to any governmental or statutory body includes any body which replaces, succeeds to the relevant powers and functions of, or which serves substantially the same purposes or objects as such body; |
(j) | a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time; |
(k) | a reference to any thing is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them; |
(l) | a reference to writing includes any mode of reproducing words, figures or symbols in tangible and permanently visible form and includes fax transmission; |
(m) | a reference to Australian dollars, dollars, $, A$, $A or AU$ is a reference to the lawful currency of the Commonwealth of Australia; |
(n) | a reference to United States dollars or US$ is a reference to the lawful currency of the United States of America; |
(o) | all references to parties are to the parties to this agreement; |
(p) | a reference to a party includes the party’s executors, administrators, successors and permitted assigns; |
(q) | a reference to time is to local time in the capital city of the State; |
(r) | if a period of time dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; |
(s) | if the time for performing an obligation under this agreement expires on a day which is not a Business Day, then time is extended until the next Business Day. |
1.3 | Vendor’s knowledge and awareness |
(a) | Where any statement in the Warranties is qualified by “knowledge”, including phrases such as “to the knowledge of the Vendor” and “as far as the Vendor is aware” or other words to that effect, that statement will be deemed: |
(i) | the actual knowledge and/or awareness of: |
(A) | the Vendor; and |
(B) | Jim Suidgeest; and |
(ii) | to include an additional statement that it has been made after reasonable enquiry, where reasonable to do so, of senior management of the Company and includes all matters, events or circumstances of which the persons named in clause 1.3(a)(i) should reasonably be aware or know after having made such enquiries. |
(b) | For the avoidance of doubt, the person named in this clause 1.3(a)(i)(B) does not bear any liability whatsoever in relation to any Claim or Loss or otherwise under this agreement. |
1.4 | Compliance with law |
(a) | This agreement is to be interpreted so that it complies with all applicable laws and if any provision does not comply then it must be read down so as to give it as much effect as possible. |
(b) | If it is not possible to give that provision any effect at all in a jurisdiction, however, then it is to be severed from this agreement for the purposes of that jurisdiction in which case the remainder of this agreement will continue to have full force and effect in that jurisdiction, but without affecting the validity or enforceability of that provision in any other jurisdiction. |
1.5 | Index and headings |
1.6 | Ordinary course of business |
(a) | it falls into place as part of the undistinguished common flow of business done; and |
(b) | it forms part of the ordinary course of business as carried on. |
2 | Condition Precedent |
2.1 | Condition Precedent to Completion |
2.2 | Reasonable endeavours |
2.3 | Waiver of Condition Precedent |
(a) | The Condition Precedent is for the benefit of the Purchaser and may only be waived by the Purchaser in writing. |
(b) | Any waiver of the Condition Precedent in accordance with clause 2.3(a) will be effective only to the extent specifically set out in that waiver. |
2.4 | End date |
2.5 | Effect of termination |
(a) | imposing obligations of confidentiality; and |
(b) | rights and obligations that accrue before the date that the agreement is terminated in accordance with clause 2.4. |
2.6 | Accounts form part of agreement |
3 | Agreement to sell and purchase the Shares |
3.1 | Sale and purchase of Shares |
3.2 | Purchase price |
(a) | On the Completion Date in accordance with clauses 7.4(a) to 7.4(b) (inclusive): |
(i) | Malibu US must issue the Scrip Consideration to the Vendor by transmitting an irrevocable instruction letter to the transfer agent for the issue of the Scrip Consideration on the Completion Date and using its best endeavours to cause such transfer agent to reflect the issuance of the Scrip Consideration in the Company’s books and records within 2 Business Days after the Completion Date (and in any event Malibu US must ensure that the Scrip Consideration is validly issued within 5 Business Days of Completion); and |
(ii) | the Purchaser must pay the Completion Amount to the Vendor. |
(b) | On the Completion Statement Date in accordance with clause 9.6: |
(i) | if the Adjustment Amount is a positive number, the Purchaser must pay the Adjustment Amount to the Vendor; or |
(ii) | if the Adjustment Amount is a negative number, the Vendor must pay the absolute value of the Adjustment Amount to the Purchaser. |
3.3 | Scrip Consideration |
(a) | the value of the Scrip Consideration in Australian dollars, being AU$3,500,000, will be converted to United States dollars at the Australian dollar to United States dollar exchange rate listed on the Reserve Bank of Australia Website on the Business Day prior to the Completion Date (US Dollar Amount); |
(b) | the issue price per share for calculating the Scrip Consideration will be the average closing price of shares in the Class A Common Stock of Malibu US for the 20 trading days immediately prior to, but not including, the Completion Date, as quoted on the Bloomberg Website (Scrip Value); |
(c) | the Vendor will be issued with the number of shares (rounded to the nearest whole number) in the Class A Common Stock of Malibu US that can be purchased with the US Dollar Amount at the Scrip Value; and |
(d) | any costs or expenses associated with issuing the Scrip Consideration to the Vendor will be borne by the Purchaser and/or Malibu US. |
3.4 | Scrip Consideration Restrictions |
(a) | Except for applicable US federal securities law requirements, 28.57% (by number rounded up to the nearest whole number) of the total Scrip Consideration shall be unrestricted and Vendor shall be able to Dispose of such percentage any time after the Completion Date. The Vendor agrees not to Dispose of the remaining Escrowed Consideration Shares in accordance with the remainder of this clause 3.4. |
(b) | Subject to clause 3.4(c) and 3.4(e) and any other restrictions imposed on the Vendor at law, the Vendor is entitled to Dispose of the Escrowed Consideration Shares at any date following the date that is 24 months after the Completion Date. |
(c) | The Vendor may, at its discretion, apply the Escrowed Consideration Shares to satisfy all or part of a Resolved Claim (as opposed to the Vendor satisfying the |
(i) | The value of each Escrowed Consideration Share applied to satisfy all or part of a Resolved Claim will be equal to the average closing price of Class A Common Stock of Malibu US, as quoted on the Bloomberg Website, for the 20 trading days immediately prior to, but not including, the date on which the parties agree the amount of the Resolved Claim. |
(ii) | If Escrowed Consideration Shares are applied to satisfy all or part of a Resolved Claim, an amount equal to the aggregate value of the Escrowed Consideration Shares returned to Malibu US, as determined in accordance with clause 3.4(c)(i), will be deemed to have been paid towards the Resolved Claim. |
(iii) | If the value of the Escrowed Consideration Shares applied does not satisfy the full amount of the Resolved Claim, the Vendor will pay the balance of the Resolved Claim to the Purchaser or Malibu US (as applicable). |
(d) | The amount of a Resolved Claim that is paid or satisfied in accordance with clause 3.4(c) is deemed to be a reduction in the Purchase Price. |
(e) | Certificates evidencing the shares of Class A Common Stock of Malibu US issued pursuant to this agreement as Scrip Consideration or any other written evidence of such shares must bear the following legend, any other legend required under the Transaction Documents, and any other legend required by applicable law: |
4 | Stocktake |
4.1 | Conduct of stocktake |
(a) | On the Adjustment Date, the Vendor must cause a stocktake of all items that would be included as "Stock" and must prepare and deliver to the Purchaser stock lists of all Stock so taken (Stock Lists). Representatives of the Vendor and the Purchaser must be present to verify details recorded on the Stock Lists. |
(b) | On completion of the stocktake, representatives of the Vendor and the Purchaser must agree and initial the Stock Lists. |
4.2 | Value of Stock |
(a) | The value of the Stock is to be determined as follows: |
(i) | by applying the principles set out in Schedule 10; and |
(ii) | (to the extent not inconsistent with the principles set out in Schedule 10) in accordance with the accounting principles and practices of the Company used in the preparation of the Accounts. |
(b) | The Vendor must compute and provide to the Purchaser a written itemisation of its calculation of the value of the Stock, as determined in accordance with clause 4.2(a), (Stock Notice) within 10 Business Days of the Adjustment Date. |
(c) | In addition, the Vendor must provide to the Purchaser, within 5 Business Days of the date of receipt by the Purchaser of the Stock Notice, all information and reasonable assistance to enable the Purchaser to validate the Vendor’s calculation of the value of the Stock. |
(d) | The Purchaser must either validate the Vendor's calculation of the value of the Stock, or notify the Vendor in writing of any disagreement as to the value of any item of Stock (Dispute Notice), by no later than 5 Business Days after the date of receipt by the Purchaser of the Stock Notice. If the Purchaser has not notified the Vendor in writing of any disagreement as to the value of any item of Stock within 5 Business Days after such receipt, the Purchaser will be deemed to have validated and accepted the Vendor's calculation of the value of the Stock as set out in the Stock Notice. |
4.3 | Disputes |
(a) | In the event of a disagreement between the Vendor and the Purchaser as to the value of any item of Stock (Stock Dispute), the disagreement must be submitted for determination to an independent and appropriately qualified person agreed between the parties as soon as practicable or, failing agreement within a further 3 Business Days, the parties must promptly request the Institute of Arbitrators and Mediators Australia to nominate an independent accountant of not less than 10 years’ standing, (the person agreed or nominated under this clause 4.3(a) being hereinafter called the Stock Expert). |
(b) | In respect of any Stock Dispute: |
(i) | the Stock Expert is to be instructed to determine the value of the item(s) of Stock in dispute having regard to the provisions of this agreement including, in particular, the valuation principles set out in clause 4.2(a); |
(ii) | each party: |
(A) | must deliver a copy of the Stock Lists, the Stock Notice, the relevant Dispute Notice and an extract of any relevant provisions of this agreement to the Stock Expert within 1 Business Day after the date of appointment of the Stock Expert (Appointment Date); |
(B) | will be entitled to make one submission in writing to the Stock Expert, which must be delivered to the Stock Expert and the other party as far as practicable simultaneously and within 5 Business Days after the Appointment Date; |
(C) | will be entitled to make one reply in writing to the submission of the other party, which reply must be delivered to the Stock Expert and the other party as far as practicable simultaneously and within 5 Business Days after the date of receipt of the first-mentioned submission; |
(D) | will not be entitled to make any further submission or reply unless the Stock Expert requests both parties to provide a further submission or reply; and |
(E) | will not be entitled to make any submission except in writing. |
(iii) | the Stock Expert is to be instructed to determine the value of such items of Stock by no later than 10 Business Days after his or her appointment or such longer period as the Vendor and the Purchaser may agree; |
(iv) | the parties must promptly supply the Stock Expert with any information, assistance and co-operation requested in writing by the Stock Expert in connection with its determination of the Stock Dispute; |
(v) | all correspondence and documents issued between the Stock Expert and a party must be simultaneously copied to the other party, unless the Stock Expert notifies in writing to a party that such copy should not be so provided; |
(vi) | the Stock Expert will act as an expert and not as an arbitrator and his or her written determination will be final and binding on the parties; and |
(vii) | the cost of such determination by the Stock Expert must be borne by the Vendor and the Purchaser as determined by the Stock Expert. |
4.4 | Final Stock value |
5 | Pre-Completion Matters |
5.1 | Payment of dividend |
(a) | declared a dividend equal to the amount of the Company’s cash at bank or on hand (Dividend); |
(b) | paid the Dividend to the Vendor, and |
(c) | procured that the Dividend was franked to the fullest extent possible. |
5.2 | Provision for cash reserves |
5.3 | Related party indebtedness |
(a) | to the Company by the Vendor or any person or entity associated with or controlled by the Vendor; or |
(b) | to the Vendor or any person or entity associated with or controlled by the Vendor by the Company. |
5.4 | Surplus Assets |
(a) | immediately prior to the Adjustment Date, the Company has no assets which do not relate to the operation of the Business (Surplus Assets); and |
(b) | to the extent that any Surplus Assets are disposed of by the Company between the date of this agreement and the Adjustment Date, that disposal must occur on arm’s length commercial terms. |
5.5 | Notice to Vendor |
5.6 | Stocktake and financial matters |
(a) | a stocktake of all stock-in-trade of the Company is conducted and verified by the Auditor; and |
(b) | the financial records of the Company are closed off to enable a balance sheet of the Company’s financial position (as at the Final Stocktake Date) to be prepared. |
6 | Conduct of the Business until Completion |
6.1 | Disposal of Assets |
6.2 | Contractual Commitments |
6.3 | Conduct of Business |
(a) | the Company: |
(i) | maintains and protects each of its Assets; and |
(ii) | carries on the Business in the normal and ordinary course of business and with due care, |
(b) | the Company consults the Purchaser in respect of, and before the making of any, material decision concerning the Company, the Shares, the Assets or the Business. |
6.4 | Capital structure |
(a) | declare or pay any dividend or make any distribution of its Assets, capital or profits; |
(b) | alter or agree to alter its constitution; |
(c) | pass any member's resolution; or |
(d) | alter its capital structure in any way. |
7 | Completion |
7.1 | Time and place for Completion |
7.2 | Vendor’s obligations on Completion |
(a) | share certificates: share certificates of the Vendor for the Shares or if not available a statutory declaration from the Vendor that any share certificate for the Shares is lost; |
(b) | transfers: completed transfers of the Shares to the Purchaser, signed by the Vendor; |
(c) | corporate records: the certificate of incorporation, common seal, and all corporate records of the Company including statutory registers, minute and other record books and share certificate books; |
(d) | accounts: ledgers, journals and books of account of the Company; |
(e) | resignations and release: written resignations of the secretary of the Company and all directors and public officers of the Company, effective on the appointment of the directors and public officer to be appointed pursuant to the resolutions referred to in clause 7.3(a)(ii) and clause 7.3(b), and the Mutual Release Deed; |
(f) | bank accounts: cheque books of the Company and a list of all bank accounts kept by the Company; |
(g) | leases: |
(i) | the Property Termination and Release Deeds, each signed by the Company and the relevant Landlord; and |
(ii) | the New Property Leases, signed by each relevant Landlord; and |
(h) | employment agreement: the Key Person Employment Agreement, signed by the Vendor. |
7.3 | Completion Board Meeting |
(a) | that a meeting of the directors of the Company is convened to: |
(i) | approve registration: approve the registration of the Purchaser as the holder of the Shares in the books of the Company, subject to payment of any stamp duty payable on the transfer of the Shares by the Purchaser; |
(ii) | appoint public officer: appoint the person nominated by the Purchaser as the public officer of the Company, subject to receipt by the Company of a written consent to act from that person, and note the resignation of the Vendor as the public officer of the Company; |
(iii) | change registered office: change the registered office of the Company to an address nominated by the Purchaser; |
(iv) | leases: approve and (if applicable) ratify the Company’s entry into the Property Termination and Release Deeds and the New Property Leases; |
(v) | employment agreement: approve the Company’s entry into the Key Person Employment Agreement; and |
(vi) | release: approve the Company’s entry into the Mutual Release Deed. |
(b) | that a resolution under section 249B of the Corporations Act is passed by the Vendor as the sole member of the Company to: |
(i) | increase the number of directors under the Company’s constitution; |
(ii) | appoint the persons nominated by the Purchaser as the directors of the Company, subject to receipt by the Company of a written consent to act from each of them; and |
(iii) | note the resignation of the Vendor as director and secretary of the Company. |
7.4 | Obligations of Purchaser and Malibu US at Completion |
(a) | the Purchaser must pay Completion Amount: the Purchaser must pay the Completion Amount to the Vendor on Completion; |
(b) | Malibu US must issue Scrip Consideration: on Completion Malibu US must deliver to the Vendor a copy of the irrevocable instruction letter to the transfer agent in relation to the issue of the Scrip Consideration, as anticipated by clause 3.2(a); and |
(c) | the Purchaser must deliver CDs containing contents of Data Room: on the Completion Date the Purchaser or Malibu US must deliver to the Vendor two non-password protected CDs which contain a complete, true and accurate record of the contents of the Data Room, signed by the Purchaser. |
7.5 | Company’s obligations at Completion |
(a) | leases: |
(i) | sign the New Property Leases; and |
(ii) | sign the Property Termination and Release Deeds; |
(b) | employment agreement: sign the Key Person Employment Agreement; and |
(c) | release: sign the Mutual Release Deed. |
7.6 | Interdependence |
(a) | The obligations of the Vendor and the Purchaser under this clause 7 are interdependent. |
(b) | Completion will not occur unless all of the obligations of the Vendor and the Purchaser under this clause 7 are complied with and fully effective. |
7.7 | Acknowledgement |
8 | Post Completion |
8.1 | Title, property and risk of the Shares |
8.2 | Vendor’s obligation until registration of the Shares |
8.3 | Access to records for Vendor after Completion |
(a) | keep on behalf of the Vendor any original records of the Company and the Business which the Vendor has handed over to the Purchaser on Completion; and |
(b) | subject to reasonable prior notice from the Vendor, give the Vendor full access during normal business hours to, and permit the Vendor to (at his own cost) take copies of, any of those records or any other original or copied records of the Company relating to the tax history of Business prior to Completion or the Vendor’s rights and obligations as a former shareholder, director and/or employee of the Company which the Purchaser possesses. |
8.4 | Customer enquiries |
8.5 | Restriction on use of business names, domain names and trade marks |
9 | Completion Statement |
9.1 | Cash reserves and Stock level at Adjustment Date |
(a) | At the Adjustment Date, the Vendor must use its best endeavours to procure that: |
(i) | the cash reserves at the bank or on hand for the Company are equal to the Target Cash Reserve Level; and |
(ii) | the Company has an amount of Stock equal to the Target Stock Level. |
(b) | The actual cash reserves (on hand and at bank) and Stock level at the Adjustment Date will be determined as part of the Completion Statement. |
9.2 | Preparation of Completion Statement |
9.3 | Review |
(a) | The Purchaser will have 10 Business Days after the date of receipt of the Completion Statement (Review Period) in which to accept or dispute the Completion Statement and/or the Adjustment Amount by written notice in accordance with clause 10.2. |
(b) | If the Purchaser does not notify the Vendor in writing during the Review Period of its acceptance or dispute of the Completion Statement and/or the Adjustment Amount, the Purchaser will be deemed to have accepted that Completion Statement and the Adjustment Amount as stipulated in that Completion Statement. |
9.4 | Access to information |
(a) | provide or ensure the timely provision of all information and assistance (including by the Auditors, and the Company’s accountants and senior personnel) which may be reasonably requested by the Purchaser and its representatives (including, without limitation, the Purchaser’s employees, agents, representatives, financial advisers, accountants and lawyers); and |
(b) | at reasonable times, permit the Purchaser and its representatives (including, without limitation, the Purchaser’s employees, agents, representatives, financial advisers, accountants and lawyers) to have full and free access to and take extracts from or copies of any books, accounts or other records, subject to compliance with any reasonable requirements of the Vendor in respect of such access. |
9.5 | Disputes |
(a) | If a dispute arises between the parties as a result of a notice given by the Purchaser pursuant to clause 9.3(a), the dispute resolution procedures set out in clause 10 will apply. |
(b) | For the avoidance of doubt, the Purchaser may not invoke the dispute resolution procedures set out in clause 10 in relation to any matter which has been resolved (or ought reasonably to have been resolved) in accordance with clause 4. |
9.6 | Payment of Adjustment Amount |
(a) | the fifth Business Day following the acceptance (or deemed acceptance) of the Completion Statement and the Adjustment Amount or determination, in the case of a dispute, under clause 10; and |
(b) | Completion, |
10 | Dispute Resolution - Completion Statement / Adjustment Amount |
10.1 | Disputes |
10.2 | Dispute Notice |
(a) | The Purchaser must give notice in writing to the Vendor, by no later than the end of the Review Period, specifying reasonable details of the Dispute and requiring resolution of the Dispute by the parties under this clause 10 (Dispute Notice). |
(b) | The Dispute Notice must state that a Dispute has arisen and identify the matters in dispute. |
10.3 | Good faith discussions |
(a) | Within 5 Business Days after the date on which a Dispute Notice is received by the Vendor, the Vendor must promptly meet and engage in good faith discussions with the Purchaser with the objective of resolving the Dispute by agreement. |
(b) | If, and only after a period of 5 Business Days after the date on which a Dispute Notice is received, the parties have not been able to resolve the Dispute, either party may, subject to its compliance with clause 10.3(a), refer the Dispute for determination in accordance with the provisions of clauses 10.4 to 10.6 (inclusive). |
10.4 | Appointment of Expert |
10.5 | Qualifications and independence of Expert |
(a) | have reasonable qualifications and practical experience in the area of the Dispute; |
(b) | have no interest or duty which conflicts or may conflict with his or her function as an Expert, he or she being required to fully disclose any such interest or duty before his or her appointment; |
(c) | not be a director, employee or shareholder of, or related to, any party; and |
(d) | not be an adviser or consultant to any party in connection with the negotiation, interpretation or enforcement of this agreement (without the prior consent of both parties). |
10.6 | Expert Determination |
(a) | Any person appointed as an Expert under clause 10.4 will be deemed to be and will act as an expert and not an arbitrator and the law relating to arbitration will not |
(b) | The determination will be held in the capital city of the State unless the parties otherwise agree. |
(c) | Each party: |
(i) | must deliver a copy of the Completion Statement, the Dispute Notice and an extract of any relevant provisions of this agreement to the Expert within 2 Business Days after the date of appointment of the Expert (Appointment Date); |
(ii) | will be entitled to make one submission in writing to the Expert, which must be delivered to the Expert and the other party as far as practicable simultaneously and within 5 Business Days after the Appointment Date; |
(iii) | will be entitled to make one reply in writing to the submission of the other party, which reply must be delivered to the Expert and the other party as far as practicable simultaneously and within 5 Business Days after the date of receipt of the first-mentioned submission; |
(iv) | will not be entitled to make any further submission or reply unless the Expert requests both parties to provide a further submission or reply; and |
(v) | will not be entitled to make any submission except in writing. |
(d) | The parties will: |
(i) | give the Expert all information, assistance and co-operation that the Expert may reasonably require in connection with its determination of the Dispute; and |
(ii) | be entitled to be legally represented in respect of any representations that they may wish to make to the Expert, whether orally or in writing. |
(e) | All correspondence and documents issued between the Expert and a party must be simultaneously copied to the other party, unless the Expert notifies in writing to a party that such copy should not be so provided. |
(f) | The costs of the Expert and any advisers to the Expert will be borne by the parties, in such manner as determined by the Expert. |
(g) | The parties must instruct the Expert to determine the Dispute by no later than 20 Business Days after his or her appointment or such longer period as the Vendor and the Purchaser may agree, and the parties acknowledge that the decision of the Expert will be final and binding on the parties. |
10.7 | Exception |
11 | Warranties |
11.1 | Warranties |
(a) | Subject to the provisions of clauses 11.2, 12 and 13, the Vendor warrants to the Purchaser and Malibu US that each Warranty is true and accurate, both at the date of this agreement and at Completion, except that: |
(i) | a Warranty which states it is made as at or on only one of those dates, or as at some other date, is made only as at that date; and |
(ii) | warranties 7, 20.2 and 20.9 in Schedule 2 are only given as at Completion. |
(b) | Each of the Warranties is to be construed independently of the others and is not limited by reference to any other Warranty. |
(c) | The Vendor acknowledges that the Purchaser and Malibu US enter into this agreement and complete this agreement in reliance on each of the Warranties. |
11.2 | Exceptions for disclosures and public records |
(a) | any damage or loss to the Purchaser or Malibu US; or |
(b) | the Warranties to be false; or |
(c) | the Warranties to be breached, |
(d) | fairly disclosed in this agreement or in the Disclosure Material; or |
(e) | one which would have been disclosed or revealed at the date of this agreement or at Completion by searches of the public registers maintained by the Australian Securities & Investments Commission, the National Personal Insolvency Index, IP Australia and the PPSR; |
(f) | disclosed in the Phase 1 Environmental Site Assessment report in relation to the Factory Complex and Storage Facility dated 16 September 2014 prepared by ENVIRON Australia Pty Ltd; or |
(g) | within the knowledge of the Purchaser, Malibu US, Malibu LLC or their respective advisers in relation to any actual or potential breach of a Warranty. |
11.3 | Fairly disclosed |
11.4 | Indemnity |
11.5 | Sole Remedy |
(a) | The sole remedy of the Purchaser and Malibu US for a breach of any of the Warranties is for damages or compensation in accordance with this clause 11, and in no event will the Purchaser or Malibu US be entitled to rescind or terminate this agreement. |
(b) | The sole remedy of the Vendor for a breach of any of the warranties given by the Purchaser pursuant to clause 11.6 or given by Malibu US pursuant to clause |
11.6 | Purchaser's Warranties |
11.7 | Malibu US’s Warranties |
12 | Limitations of liability |
12.1 | No reliance on and no liability for matters outside this agreement |
(a) | constitutes the entire agreement and basis of the transaction between the parties in relation to its subject matter; |
(b) | supersedes any other agreement, letter, correspondence (oral or written, express or implied) entered into prior to this agreement in respect of the matters dealt with in this agreement; and |
(c) | was not entered into by the parties in reliance on any agreement, understanding, warranty or representation of any party not expressly contained or referred to in this agreement or another Transaction Document. |
12.2 | Purchaser and Malibu US’s acknowledgment |
(a) | the Purchaser, Malibu US and their advisers have undertaken a due diligence investigation in relation to the Company, the Shares, and the Business; |
(b) | the Purchaser and Malibu US have a high level of knowledge about the Company and the Business, by reason of the long-term business relationship between Malibu LLC and the Company under the terms of the Exclusive Manufacture and Distribution Agreement and its predecessor agreement(s); |
(c) | the Vendor has provided to the Purchaser, Malibu US or their advisers, for the purpose of that investigation, all information necessary for the Purchaser and Malibu US to make an informed assessment of the assets, liabilities, financial position, profits, losses and prospects of the Company and which is material for disclosure to an intending purchaser of the Shares or the Business for value; |
(d) | it is reasonable and appropriate that the Vendor only gives the Warranties and no other representations, warranties or undertakings in relation to the Company, the Shares and the Business and that those Warranties are subject to matters fairly disclosed in this agreement or the Disclosure Material; |
(e) | they enter into this agreement solely as a result of their own due diligence, investigations, inquiries, advice, and knowledge concerning the Company, the Shares and the Business; and |
(f) | they do not rely on any representation or warranty made by or on behalf of the Vendor which is not set out in this agreement. |
12.3 | Limitations of liability |
(a) | where the Loss or Claim is as a result of or in consequence of any act, omission, transaction or arrangement of or on behalf of the Purchaser, Malibu US, Malibu LLC or the Company after Completion; or |
(b) | unless: |
(i) | the amount finally awarded or agreed as being payable in respect of the Loss or Claim in question is not less than AU$120,000; and |
(ii) | the aggregate amount finally awarded or agreed as being payable in respect of all Losses and Claims under or in connection with this agreement exceeds AU$360,000, in which event the Vendor is only liable for so much of that amount exceeding AU$360,000; or |
(c) | unless the Purchaser or Malibu US has given written notice to the Vendor setting out specific details of the Loss or Claim within 24 months after the Completion Date. |
12.4 | Maximum liability for claims |
12.5 | Reimbursement for amounts recovered |
(a) | reimburse the Vendor for amounts paid by the Vendor to the Purchaser in respect of any Loss or Claim under or in connection with this agreement to the extent to which the same is recovered by the Purchaser or the Company from any third party, including but not limited to suppliers, manufacturers or insurers; and |
(b) | take all reasonable steps (and must ensure that the Company takes all reasonable steps following Completion) to seek recovery from all relevant third parties. |
12.6 | Third party claims |
(a) | the Purchaser or Malibu US (as applicable) will give prompt written notice of the Third Party Claim to the Vendor; |
(b) | within 30 Business Days after the date of receipt by the Vendor of a notice under clause 12.6(a), the Vendor must decide whether he wishes to assume, at his own cost, the conduct of the defence of the Third Party Claim and notify the Purchaser or Malibu US (as applicable) in writing of his decision. If the Vendor has not notified the Purchaser or Malibu US (as applicable) in writing of his decision within that 30 Business Day period, the Vendor will be deemed to have declined to assume the conduct of the defence of that Third Party Claim; |
(c) | the Purchaser or Malibu US (as applicable) will not (and must procure that the Company does not) admit, compromise, settle or pay any such Third Party Claim or take any other steps which may in any way prejudice the defence or challenge thereof without the prior written consent of the Vendor, except as may be reasonably required in order to prevent any judgment against the Purchaser, Malibu US or the Company: |
(i) | in the 30 Business Day period after the date of receipt by the Vendor of a notice under clause 12.6(a), unless the Vendor advises the Purchaser or Malibu US (as applicable) on an earlier date in accordance with clause 12.6(b) that he does not wish to assume the conduct of the defence of the Third Party Claim; and |
(ii) | after the expiry of that 30 Business Day period, if the Vendor advises the Purchaser or Malibu US (as applicable) in accordance with clause 12.6(b) that he wishes to assume the conduct of the defence of the Third Party Claim; |
(d) | if the Vendor advises the Purchaser or Malibu US (as applicable) under clause 12.6(b) that he wishes to assume the conduct of the defence of a Third Party Claim: |
(i) | the Purchaser or Malibu US (as applicable) will ensure (and will procure that the Company ensures) that the Vendor and his representatives are given reasonable access to such officers and employees, and the documents and records of the Purchaser or Malibu US (as applicable) and the Company as may be reasonably required by the Vendor, at the cost of the Vendor, in relation to that Third Party Claim, except that nothing in this clause 12.6(d)(i) requires the Purchaser or Malibu US (as applicable) to allow the Vendor to have access to anything which: |
(A) | is the subject of legal professional privilege; or |
(B) | has been prepared for the purpose of, or in contemplation of, the Purchaser or Malibu US (as applicable) making a Claim against the Vendor under this agreement; and |
(ii) | in conducting any proceedings or actions in respect of that Third Party Claim, the Vendor and the Purchaser or Malibu US (as applicable) must: |
(A) | act in good faith; |
(B) | liaise with each other in relation to, and keep each other informed as to the progress and details of, the defence of that Third Party Claim; |
(C) | provide each other with reasonable access to a copy of any notice, correspondence or other document relating to that Third Party Claim; and |
(D) | act reasonably in all the circumstances, including having due regard to the likelihood of success and the effect of the proceedings or actions on the goodwill or reputation of the Company, the Business or any party; and |
(iii) | the Vendor indemnifies the Purchaser or Malibu US (as applicable) in respect of, and must pay an amount to the Purchaser or Malibu US (as applicable) equal to, any Claim or Loss which the Purchaser, Malibu US (as applicable) or any of their related bodies corporate suffers, incurs or becomes liable for at any time as a result of any action taken by, on |
(e) | the Purchaser or Malibu US (as applicable) will ensure that neither it nor the Company will do or cause to be done anything in relation to the Third Party Claim which compromises or prejudices the Vendor’s rights under this clause 12.6. |
12.7 | Breach of Exclusive Manufacture and Distribution Agreement |
(a) | arises or results from any breach by Malibu LLC of the Exclusive Manufacture and Distribution Agreement (whether such breach occurred either prior to or after Completion); or |
(b) | is or was within the knowledge of the Purchaser, Malibu US or Malibu LLC given Malibu LLC’s relationship with the Company under the Exclusive Manufacture and Distribution Agreement. |
12.8 | No double claims |
(a) | The Purchaser and / or Malibu US cannot recover the same Loss for breach of a Warranty, for the enforcement of an indemnity under this agreement, for breach of this agreement, or for any matter which is reflected in the Adjustment Amount. |
(b) | This clause 12.8 does not prevent the Purchaser or Malibu US, if it is entitled to make a Claim under this agreement, from commencing that Claim. However, if for any reason more than one amount is paid to the Purchaser and / or Malibu US in respect of the same Loss, the Purchaser or Malibu US (as applicable) must procure that the additional amount is immediately repaid to the Vendor, as applicable, so as to give full effect to clause 12.8(a). |
12.9 | Adjustment to Purchase Price |
12.10 | Forward-looking statements |
12.11 | Mitigation |
12.12 | Indirect and consequential loss |
(a) | the Vendor is not liable to the Purchaser, Malibu US or the Company under or in connection with this agreement for any loss, expense or liability attributable (directly or indirectly) to loss of profit or opportunity (whether direct or indirect) of |
(b) | the Purchaser, Malibu US and the Company are not liable to the Vendor under or in connection with this agreement for any loss, expense or liability attributable (directly or indirectly) to loss of profit or opportunity (whether direct or indirect) of the Vendor, or for any indirect or consequential losses of any nature whatsoever. |
13 | Defective Products |
13.1 | Acknowledgements |
(a) | the Purchaser is a subsidiary of Malibu LLC which is a designer and manufacturer of boats, and which has supplied the Company with all boat designs, moulds, and associated tooling used by the Company in the Business; |
(b) | the Purchaser, Malibu US and their respective personnel have significant knowledge, expertise and skill in the manufacture and distribution of boats of the same kind as are manufactured and distributed by the Company; |
(c) | the Purchaser and Malibu US have conducted a due diligence investigation in relation to the operational systems and procedures, including the quality control procedures, used by the Company in the Business and have requested all information that they consider necessary or appropriate in respect of any actual or potential historical product liability issues of any kind whatsoever; and |
(d) | the Vendor has supplied to the Purchaser and Malibu US all information requested by them as part of that due diligence investigation. |
13.2 | Vendor’s exclusion of liability for Defective Products |
(a) | the Purchaser, Malibu US and the Company acknowledge and agree that to the maximum extent permissible by law the Vendor has no obligation or liability whatsoever to the Purchaser, Malibu US or the Company (including without limitation under the Warranties) for any Loss or Claim suffered or incurred at any time by the Company, Malibu US, the Purchaser or their respective associates in respect of Defective Products; and |
(b) | to the maximum extent permissible by law: |
(i) | the Vendor excludes and disclaims any and all obligations and liabilities to the Purchaser, Malibu US, the Company, or their respective associates for and in respect of Defective Products; and |
(ii) | the Purchaser, Malibu US and the Company unconditionally and irrevocably release the Vendor from any and all obligations and liabilities for and in respect of Defective Products; and |
(c) | the Purchaser, Malibu US and the Company must indemnify (and keep indemnified) the Vendor in respect of any Loss or Claim of any nature whatsoever suffered or incurred at any time by the Vendor in respect of any Defective Products, except that the Purchaser, Malibu US and the Company are not liable to indemnify the Vendor under this clause 13.2(c) in respect of any loss, expense or liability attributable (directly or indirectly) to loss of profit or opportunity (whether direct or indirect), or for any indirect or consequential losses of any nature whatsoever. |
14 | Restraint |
14.1 | Definitions |
(a) | Affiliates means any persons or entities controlled by the Vendor, including without limitation: |
(i) | the Landlords; and |
(ii) | Indmar Marine Engines Pty Ltd (ACN 116 455 915). |
(b) | engage in means to carry on, participate in, provide finance or services or otherwise be directly or indirectly involved (including through any interposing entity) as a shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(c) | Restrained Customer means a person who: |
(i) | as at the relevant date, is a customer of the Company, or is a potential customer with whom the Company or a representative of the Company has held discussions or provided proposals regarding the supply of goods to that customer by the Company; or |
(ii) | was at any time during the 12 months immediately prior to the date of Completion, a customer of the Company; |
(d) | Restrained Business means a business or activity which is the same as, or similar to, or is or is reasonably likely to be in competition with, the Business or any material part of it; |
(e) | Restraint Period means the following period commencing from and subject to the occurrence of Completion: |
(i) | 120 months, or if that is held to be unenforceable; |
(ii) | 96 months, or if that is held to be unenforceable; |
(iii) | 60 months, or if that is held to be unenforceable; |
(iv) | 36 months, or if that is held to be unenforceable; |
(v) | 12 months; |
(f) | Restraint Area means: |
(i) | Australia, New Zealand and all countries in the Asia-Pacific region, or if that is held to be unenforceable; |
(ii) | Australia and New Zealand, or if that is held to be unenforceable; |
(iii) | Australia, or if that is held to be unenforceable; |
(iv) | Victoria, New South Wales and Queensland, or if that is held to be unenforceable; or |
(v) | Victoria and New South Wales. |
14.2 | Non-competition |
14.3 | Non-interference |
(a) | solicit, canvass, approach or accept any approach from any person that is a Restrained Customer with a view to obtaining the custom of that person in a Restrained Business; or |
(b) | interfere, directly or indirectly, with the relationship between the Company and any of its customers, clients, employees or suppliers, |
14.4 | Non-solicitation of employees |
14.5 | Exceptions |
(a) | holding 5% or less, in number of the ordinary voting shares of a public listed company; |
(b) | recruiting a person through a recruitment agency (except if the agency targets any of the persons referred to in clause 14.4) or as a response to a newspaper, web page or other employment advertisement that has been published to the general public; |
(c) | acting as a director or officer, or performing services as an employee or contractor, of the Company; or |
(d) | doing anything with the prior written consent of the Purchaser. |
14.6 | Other prohibitions |
(a) | at any time after Completion, represent itself as being in any way associated with or interested in the Company or the Business (except as the prior owner of the Company); or |
(b) | at any time from the date of this agreement, without limitation to its obligations under clause 8.5: |
(i) | disclose or use to its advantage, or the disadvantage of any Business, the name of any Restrained Customer; or |
(ii) | make, cause to be made or be associated with, any statement or comment which disparages, brings into disrepute or adversely affect the reputation of the Company, any of its related bodies corporate, any of their respective officers, or the Business. |
14.7 | Independent restraints |
14.8 | Restraints reasonable in scope and duration |
(a) | all the prohibitions and restrictions contained in this clause 14 are reasonable in the circumstances and necessary to protect the goodwill and confidential information of the Company, and its relationship and connection with its customers, employees and suppliers; |
(b) | damages may not be an adequate remedy if the Vendor or any Affiliate breaches this clause 14; and |
(c) | the Purchaser and any of its related bodies corporate may apply for injunctive relief if: |
(i) | the Vendor or any Affiliate breaches or threatens to breach any part of this clause 14; or |
(ii) | it believes the Vendor or any Affiliate is likely to breach any part of this clause 14. |
15 | Guarantee and Indemnity |
15.1 | Malibu US’s primary undertaking |
(a) | guarantees to the Vendor the due and punctual performance and observance by the Purchaser of the Purchaser’s obligations under this agreement (including any or all amounts payable by the Purchaser under this agreement) (Guaranteed Obligations); and |
(b) | subject to clause 15.5, agrees to indemnify the Vendor against, and to pay to the Vendor on demand an amount equal to all Losses or Claims (including but not limited to legal and professional fees and expenses), under or in connection with this agreement which the Vendor may now or in the future suffer or incur as a result of the failure of the Purchaser to perform the Guaranteed Obligations, except to the extent that the Loss or Claim is caused by the Vendor. |
15.2 | Extent of guarantee and indemnity |
(a) | an amendment of this agreement, whether with or without Malibu US's knowledge or consent, other than an amendment to this clause 15; or |
(b) | a rule of law or equity to the contrary; or |
(c) | an insolvency event affecting a person or the death of a person; or |
(d) | a change in the constitution, membership, or partnership of a person; or |
(e) | the partial performance of the Guaranteed Obligations, except to the extent that the Guaranteed Obligations are partially performed; or |
(f) | the Guaranteed Obligations not being enforceable at any time (whether by reason of a legal limitation, disability or incapacity on the part of the Purchaser and whether this agreement is void ab initio or is subsequently voided) against the Purchaser; or |
(g) | the Vendor granting any time or other indulgence or concession to, compounding or compromising with, or wholly or partially releasing the Purchaser or Malibu US of an obligation; or |
(h) | any other thing happening that might otherwise release, discharge, prejudice or affect the obligations of Malibu US under this agreement. |
15.3 | Principal and independent obligation |
(a) | a principal obligation and is not to be treated as ancillary or collateral to another right or obligation; and |
(b) | independent of and not in substitution for or affected by another security interest or guarantee or other document or agreement which the Vendor or another person may hold concerning the Guaranteed Obligations. |
15.4 | Enforcement against Malibu US |
15.5 | Mitigation |
16 | Confidentiality and Announcement |
16.1 | Dictionary |
(a) | was in the public domain when it was given to the Recipient; |
(b) | becomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this agreement; |
(c) | was in the Recipient's possession when it was given to the Recipient and had not been acquired in some other way (directly or indirectly) from the Discloser; or |
(d) | was lawfully received from another person who had the unrestricted legal right to disclose that information free from any obligation to keep it confidential. |
16.2 | Confidentiality obligations |
(a) | Subject to clause 16.2(b), each Recipient: |
(i) | must keep the Confidential Information confidential and not disclose it or allow it to be disclosed (directly or indirectly) in any form to a third party; and |
(ii) | must take or cause to be taken all precautions necessary to maintain the secrecy and confidentiality of the Confidential Information. |
(b) | On and subject to Completion: |
(i) | the Purchaser may disclose Business Confidential Information except to the extent that such information relates to the Vendor; and |
(ii) | the Vendor must keep confidential, on the same basis as set out in clause 16.2(a), all Business Confidential Information. |
16.3 | Exceptions to confidentiality obligations |
(a) | the Discloser has first agreed in writing to the particular disclosure, use, or copying; |
(b) | the information is disclosed to an officer or employee of the Recipient, a professional adviser, banker or financial adviser of the Recipient, or to someone whose consent is required under this agreement or for a transaction contemplated by it, to the extent that such person needs to know the information in order to enable the Recipient to properly perform their obligations under this agreement or any other Transaction Document, in which case the Recipient must ensure that such person keeps the information secret and confidential and does not divulge or disclose the information to any other person; or |
(c) | disclosure of any Confidential Information is required to comply with any applicable law or requirement of any Governmental Agency or regulatory body (including the rules of any relevant securities exchange). |
16.4 | Announcements |
(a) | After Completion, the Purchaser or Malibu US may make an announcement to any applicable securities exchange and the media in the form set out in Annexure E, or in such other form as the parties agree, and may send a notice to the customers, dealers and suppliers of the Company in such form as is mutually agreed between the parties. |
(b) | Subject to clause 16.4(a), no announcement, press release or other communication of any kind relating to the negotiations of the parties or the subject matter or terms of this agreement must be made or authorised by or on behalf of a party without the prior written approval of each other party unless that announcement, press release or communication is required to be made by law, the rules of any recognised securities exchange or any order of any court, tribunal, authority or regulatory body. |
16.5 | Survival |
17 | GST |
17.1 | Definitions |
17.2 | Consideration is GST Exclusive |
17.3 | Taxable Supply |
(a) | the GST Exclusive Consideration; and |
(b) | the amount of GST payable by the Supplier in respect of that supply including any penalties or interest payable by the Supplier, |
17.4 | Tax Invoice |
17.5 | Penalties and Interest |
17.6 | Reimbursement and Indemnity Payments |
(a) | If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. |
(b) | A party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise. |
18 | Notices |
18.1 | Form of Notice |
(a) | is in legible writing, in English and addressed to the intended recipient; and |
(b) | is signed by the sender (if an individual) or by an authorised representative of the sender; and |
(c) | is given to the addressee by: |
(i) | delivery in person; or |
(ii) | post to, or leaving at, that party’s address for service; or |
(iii) | sending by fax to the party’s address for service; or |
(iv) | sending by email to the party’s email address; and |
(d) | is regarded as being given by the sender and received by the addressee: |
(i) | if by delivery in person or by being left at the party’s address for service, upon delivery; |
(ii) | if by post, two (2) Business Days from and including the date of posting by ordinary prepaid post in respect of an address for service within the Commonwealth of Australia and twenty one (21) Business Days in respect of other any address; or |
(iii) | if by fax or email, when legibly received by the addressee, with receipt being evidenced by a report generated by the sender’s machine confirming uninterrupted transmission / sending; |
18.2 | Address for service |
(a) | For the purposes of this clause 18, a party’s address for service shall be: |
(i) | if clause 18.2(a)(ii) does not apply, the party’s postal address or fax number set out below; or |
Party | Postal address | Attention | Email | Fax |
Vendor | * | Xavier Stuart West | * | N/A |
Purchaser | 5075 Kimberly Way, Loudon, TN, 37774, United States of America | Wayne Wilson | waynew@malibuboats.com | N/A |
Company | 813, Hope Court, North Albury, NSW 2640 | Wayne Wilson | waynew@malibuboats.com | N/A |
Malibu US | 5075 Kimberly Way, Loudon, TN, 37774, United States of America | Wayne Wilson | waynew@malibuboats.com | N/A |
(b) | If the party is a company, shall also include its registered office. |
19 | General |
19.1 | Further assurances |
19.2 | Non-merger of provisions |
19.3 | Waiver |
(a) | A single or partial exercise or waiver of a right relating to this agreement will not prevent any other exercise of that right or the exercise of any other right. |
(b) | A party will not be liable for any loss, cost or expense of any other party caused or contributed to by any waiver, exercise, attempted exercise or failure to exercise, or any delay in the exercise of, a right. |
19.4 | Confidentiality |
19.5 | Approvals and consents |
19.6 | No amendments without agreement |
19.7 | Assignment |
19.8 | Contra proferentem excluded |
19.9 | Costs, expenses and stamp duty |
(a) | Each party must bear its own costs and expenses arising out of and in connection with the negotiation, preparation and execution of this agreement. |
(b) | All stamp duty (including fines, penalties and interest) which may be payable on or in connection with this agreement and any instrument executed under this agreement must be borne by the Purchaser. |
19.10 | Independent Legal Advice |
19.11 | Counterparts |
(a) | This agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one and the same instrument. |
(b) | This agreement is not binding on any party unless one or more counterparts have been duly executed by, or on behalf of, each person named as a party to this agreement. |
(c) | A copy of a counterpart sent by facsimile machine or emailed as a PDF: |
(i) | must be treated as an original counterpart; |
(ii) | is sufficient evidence of the execution of the original; and |
(iii) | may be produced in evidence for all purposes in place of the original. |
19.12 | Enforcement of indemnities |
19.13 | Exercise of rights |
19.14 | Jurisdiction |
19.15 | Attorneys |
(a) | has been duly appointed; and |
(b) | has no notice of the power of attorney under the authority of which he or she executes the agreement having been revoked. |
Schedule 1 | Details of the Company |
Name: | MALIBU BOATS PTY LTD |
Australian Company Number: | 056 239 500 |
Place of incorporation: | NEW SOUTH WALES |
Date of registration: | 29 MAY 1992 |
Registered office: | 601 STANLEY STREET, ALBURY NSW 2640 |
Issued shares: | 10 fully-paid ordinary shares |
Directors: | XAVIER STUART WEST |
Secretaries: | XAVIER STUART WEST |
Shareholders: | XAVIER STUART WEST |
Schedule 2 | Warranties |
1 | Vendor |
1.1 | The Vendor has full legal capacity and power to: |
(a) | enter into this agreement and to carry out the transactions that this agreement contemplates; and |
1.2 | This agreement constitutes the legal, valid and binding obligations of the Vendor, enforceable against the Vendor in accordance with its terms, subject to any necessary stamping or registration. |
1.3 | The Vendor is not Insolvent and no circumstances exist which may reasonably be expected to result in the Vendor becoming Insolvent. |
2 | Title to Shares |
2.1 | The Vendor has full power and authority to transfer full legal and beneficial ownership of the Shares to the Purchaser on Completion. |
2.2 | The Vendor has full legal and beneficial right, title and interest in the Shares free from any Security Interest. |
2.3 | The Vendor has not disposed of, agreed to dispose of, or granted any option to purchase, any Share or any interest in any Share. |
3 | Extent of interest in the Company |
3.1 | The Shares are all of the issued shares in the capital of the Company, and are fully paid. |
3.2 | The Company has not issued any options or other securities convertible into shares in the Company. |
4 | The Company |
4.1 | The Company is a company limited by shares under the Corporations Act. |
4.2 | The Company has full legal capacity and power to own its property and to carry on the Business. |
4.3 | The Company is not Insolvent and no circumstances exist which may reasonably be expected to result in the Company becoming Insolvent. |
4.4 | The Company does not have any subsidiaries. |
4.5 | The Company is not a guarantor of the indebtedness of any third party. |
4.6 | The Company is not, and is not entering into this agreement, as the trustee of any trust or settlement. |
4.7 | The Company does not trade under a name other than its corporate name. |
5 | The Business and the Assets |
5.1 | The Company is the sole legal and beneficial owner of the Business and each of the Assets, free from any Security Interest (other than any existing retention of title arrangements over or in respect of Stock, the floor plan arrangements relating to the existing Security Interest held by GE Commercial Corporation (Australia) Pty Ltd (ACN 000 974 747) and the business loan and overdraft arrangement relating to the existing Security Interest held by National Australia Bank Limited (ACN 004 044 937)). |
5.2 | The Assets are used solely for the purpose of the Business and are not surplus to the requirements of the Business as at the date of this agreement. |
5.3 | On Completion, the Company will own, or have the right to use, all of the Assets that are material for the conduct of the Business as currently carried on. |
5.4 | Since the Accounts Date, the Company has not: |
(a) | disposed of, agreed to dispose of, or granted any option to purchase, any of the Assets, other than in the ordinary course of business; or |
(b) | entered into or incurred any contract or commitment requiring the payment of more than $120,000 on any one occurrence or more than $360,000 per annum for more than 12 months, other than in the ordinary course of business. |
5.5 | The Assets are all in the possession of or under the control of the Company (save and except for any products which are held from time to time at the premises of the Company’s independent dealer network). |
5.6 | There are no agreements, arrangements or understandings in force requiring any Asset to be shared with or made available to any other person. |
5.7 | No dealer of the Company has been terminated as a dealer by the Company in the five years prior to Completion. |
6 | The Properties |
6.1 | The Company does not own any freehold property. |
6.2 | On Completion the Company will have vacant possession and quiet enjoyment of the Properties. |
6.3 | As far as the Vendor is aware, there is no outstanding order or notice affecting any of the Properties. |
6.4 | As far as the Vendor is aware, the Properties are not contaminated. |
6.5 | As far as the Vendor is aware, there are no proposals made or intended to be made by any Governmental Agency that would adversely affect the Properties or their use in the Business. |
6.6 | As far as the Vendor is aware, the Properties are not subject to any defect which will, or would reasonably be likely to, decrease their ability to be used in the Business as currently carried on. |
6.7 | As far as the Vendor is aware, the Company holds all consents, licences, rights, interests and privileges necessary or appropriate for the conduct of the Business on the Properties as currently carried on, and has at all times observed and complied with the conditions and restrictions to such consents, licences, rights, interests and privileges. |
6.8 | As far as the Vendor is aware, all buildings or improvements on the Properties are in a condition and state of repair as to be substantially fit for the purpose for which they are currently used by the Company. |
6.9 | The New Property Leases, once executed, will be legally valid and subsisting and binding on any registered mortgagee of the freehold, and the Landlords have not granted any sub-lease, licence or exclusive or shared right to occupy or use any part of the Properties. |
6.10 | The Business is carried on only at the Properties. |
7 | Financial Position |
7.1 | The Accounts: |
(a) | present fairly, in all material respects: |
(i) | the financial position of the Company as at the Accounts Date and 30 June 2013; and |
(ii) | the financial performance and cash flows for each of the years ended on the Accounts Date and 30 June 2013; |
(b) | have been prepared in accordance with: |
(i) | Australian Accounting Standards; and |
(ii) | International Financial Reporting Standards, |
(c) | are not affected by any unusual, abnormal, exceptional or non-recurring items other than in respect of first time provisions made for annual leave, long service leave and warranty (such provision being reflected in the Accounts and the Notes to the Accounts); and |
(d) | disclose all material assets and material liabilities of the Company as at the Accounts Date. |
7.2 | Since the Accounts Date: |
(a) | there have been no material changes in the assets and liabilities of the Company from those disclosed in the Accounts; |
(b) | there has been no change in the accounting practices or procedures of the Company; |
(c) | no Asset has been revalued; and |
(d) | the Company has conducted the Business as a going concern in accordance with normal practice (having regard to the nature and working capital requirements of the Business) without any interruption or alteration in its nature, scope or manner. |
8 | Records |
8.1 | As far as the Vendor is aware, the Company’s records, data and files (whether in physical or electronic form) have been prepared and maintained in all material respects in accordance with applicable laws, and do not contain any material inaccuracies or discrepancies. |
8.2 | As far as the Vendor is aware, all records, data and files (whether in physical or electronic form) of the Company are within the Company’s possession and / or control. |
8.3 | The Business Records include: |
(a) | all information necessary to operate the Business as currently operated; |
(b) | as far as the Vendor is aware, all records required under, or to comply with (in all material respects) or support any return or Claim under, any applicable law (including any Tax Law and the Corporations Act). |
9 | Data Room and Disclosure Letter |
9.1 | Subject to warranty 9.2, as far as the Vendor is aware, the documents in the Data Room and any documents referred to in the Disclosure Letter were accurate in all material respects as at the date upon which those documents were prepared and provided to the Purchaser and Malibu US. |
9.2 | The documents in the Data Room provided in relation to: |
(a) | licences, approvals, permits and environmental matters involving the Company; |
(b) | employees and contractors of the Company; and |
(c) | Tax matters involving the Company, |
9.3 | As far as the Vendor is aware, the information contained in the schedules to this agreement is accurate in all material respects and not intentionally misleading. |
9.4 | All copies of documents provided by the Vendor to the Purchaser and Malibu US in the Data Room are true and complete copies of the original documents. |
10 | Plant and Equipment and Stock |
10.1 | Schedule 5 contains accurate details of all of the key items of Plant and Equipment. |
10.2 | Each item of the Plant and Equipment is located at one of the Properties, and is: |
(a) | in a good and safe state of repair and condition (fair wear and tear excepted); |
(b) | capable of doing the work for which it was purchased; |
(c) | used in and not surplus to the requirements of the Business; and |
(d) | as far as the Vendor is aware, complies in all material respects with all applicable laws, conforms with all standards and has not been repaired, altered, modified, operated or maintained in a way which would void or otherwise affect any product warranty provided by the supplier of that item. |
10.3 | Each item of Stock is of merchantable quality (except for any obsolete stock disclosed by the Vendor to the Purchaser and Malibu US in the Disclosure Material), in accordance with all applicable specifications and is fit for its intended purpose. |
11 | Contracts |
11.1 | As far as the Vendor is aware, the Company is not in default, or would not be in default but for the requirements of notice or lapse of time, under any Contract. |
11.2 | The Company has not received any written notice that is likely to materially affect its rights, or the exercise of any rights by it, under any agreement which is material to the conduct of the Business as currently conducted. |
11.3 | The Company has not given any power of attorney or non-compete undertaking in favour of any person. |
11.4 | With the exception of the Existing Property Leases, the Company has not entered into any agreement, arrangement or understanding with any of its related parties (as that term is defined in section 228 of the Corporations Act, as if the Company were a public company) other than on arm’s length terms. |
12 | Intellectual property |
12.1 | As far as the Vendor is aware, the Company does not own any registered or unregistered trade marks, designs or patents. |
12.2 | As far as the Vendor is aware, the Company does not, in the conduct of the Business, use any trade mark other than the trade marks licensed to it under the Exclusive Manufacture and Distribution Agreement and the unregistered trade marks set out in Schedule 11. |
12.3 | As far as the Vendor is aware, no person is infringing or has infringed the Business Intellectual Property. |
12.4 | The Company has an enforceable right or licence to use all Third Party Intellectual Property. |
12.5 | The Business Intellectual Property and the Third Party Intellectual Property comprises all the Intellectual Property Rights which are material for the conduct of the Business as currently carried on. |
12.6 | As far as the Vendor is aware, the conduct of the Business (including the use by the Company of the Business Intellectual Property and Third Party Intellectual Property) does not breach or infringe any Intellectual Property Rights, rights of confidentiality, or moral rights of any third party, and the Vendor is not aware of any allegation of any such breach or infringement. |
12.7 | The domain names that are the subject of the Domain Name Registrations are the only domain names used in the Business, and the Company is validly licensed to use them. |
13 | Employees |
13.1 | Schedule 6 contains a complete list of the employees employed by the Company as at 30 June 2014 and an accurate statement as at 30 June 2014 of their commencement date and period of service with the Company and their entitlement to wages, bonus arrangements, other remuneration, leave (including long service leave and annual leave, but excluding sick leave) and other entitlements. |
13.2 | The terms of all contracts, arrangements and understandings which are in place between the Company and its employees, contractors and consultants, and all Awards applicable to those employees, have been disclosed in the Disclosure Material. |
13.3 | No employee, director or consultant of the Company is eligible or entitled to participate in any share or option plan because of his or her status as an employee, director or consultant. |
13.4 | The Company has not: |
(a) | given a commitment (whether legally binding or not) to increase or supplement the remuneration, annual leave (including leave loading), long service leave, sick leave or any other compensation, gratuities or benefits of any employee beyond the amounts and entitlements listed in “28.07.14 Wage & Salary Review MKII” in the Smartsheet Data Room Index; or |
(b) | agreed to a share incentive scheme, share option scheme, bonus scheme, profit sharing scheme or other employee incentive scheme with any employee. |
13.5 | Except as disclosed in the Disclosure Material, no Awards apply to or cover any employees of the Company and the Company is not party to any enterprise agreement in relation to any of its employees. |
13.6 | As far as the Vendor is aware, the Company has complied with all its obligations under all agreements, statutes, Awards or codes of conduct in respect of its employees. |
13.7 | The Vendor is not aware of any actual or proposed industrial action by employees of the Company or dispute with any union or labour organisation. |
13.8 | The Company has paid all amounts due to each employee of the Company and all amounts payable by the Company to any third party for or in respect of those employees. |
13.9 | There are and have been no Claims against the Company by or on behalf of any past or present employee or contractor of the Company and, as far as the Vendor is aware, there are no circumstances likely to give rise to any such Claim. |
13.10 | As far as the Vendor is aware, the Company has complied, in all material respects, with all of its obligations under all agreements, statutes, Awards or codes of conduct in respect of its employees, and has maintained adequate and suitable records regarding their service (including all records required by law). |
13.11 | As far as the Vendor is aware, the Company has complied, in all material respects, with all applicable workplace (including occupational health and safety), discrimination and privacy laws. |
14 | Superannuation |
14.1 | The Company has paid all amounts required to be paid by law in respect of superannuation for its employees. |
14.2 | Other than the obligation to make employer contributions to the selected funds of the Company’s current employees at the statutory rate prescribed under the Superannuation Guarantee (Administration) Act 1992 (Cth) and associated legislation, the Company does not contribute to, or have any obligation, liability or duty to make any payment to or on behalf of any present or former employee or their dependants in respect of superannuation, retirement, life assurance, death or disability benefits, pensions, annuities or other allowances, gratuities or benefits. |
14.3 | The Company has complied with all of its obligations, duties and liabilities under the Superannuation Guarantee (Administration) Act 1992 (Cth) and associated legislation. |
15 | Environment and licensing |
15.1 | In this Section 15, the following definitions apply: |
(a) | Land, water, atmosphere, climate, sound, odour and taste; |
(b) | the biological factors of animals and plants; and |
(c) | the social factor of aesthetics affecting any human individually or in their social groupings. |
(a) | the surface of the earth; |
(b) | any material below the surface (including ground water); |
(c) | the atmosphere above land; and |
(d) | standing or running water. |
15.2 | As far as the Vendor is aware, the Company: |
(a) | has always previously complied with all Environmental Laws; |
(b) | is currently complying with all Environmental Laws; |
(c) | has not received any Environment Notices; and |
(d) | is not aware of any circumstances which might give rise to an Environment Notice being issued. |
15.3 | As far as the Vendor is aware, the Company: |
(a) | is not presently the owner or occupier of any Contaminated Land; |
(b) | has not previously Polluted any Land owned or occupied by it or any Land adjacent to Land owned or occupied by it; and |
(c) | is not now Polluting any Land owned or occupied by it or any Land adjacent to Land owned or occupied by it. |
15.4 | As far as the Vendor is aware, the Company: |
(a) | has always previously held and fully complied with all Approvals; and |
(b) | currently holds, and is fully complying with, all Approvals. |
15.5 | As far as the Vendor is aware, the Company has in place, and is complying with the terms of, systems and processes designed to comply with all Environmental Laws and those systems and processes have been designed with professional skill, care and diligence. |
16 | Absence of litigation |
16.1 | The Company is not, and has not in the past 3 years, been a party to any litigation, prosecution, investigation or other dispute resolution process or administrative or governmental proceedings and to the knowledge of the Vendor, there is no Claim against or dispute involving the Company which may give rise to the foregoing. |
16.2 | There is no unsatisfied judgment, order, arbitral award or decision of any court, tribunal or arbitrator, or unsatisfied settlement of proceedings in any court, tribunal or arbitration, against the Company. |
16.3 | The Company has not given an undertaking or written assurance (whether legally binding or not) to any court or Governmental Agency (including any competition authority) under any anti-trust or similar legislation in any jurisdiction. |
17 | Compliance with laws |
17.1 | To the knowledge of the Vendor, the Company has complied in all material respects with all applicable laws and regulations and all relevant requirements, policies or standards of any Governmental Agency. |
17.2 | The Company has not received notice of any investigation by any Governmental Agency, and, to the knowledge of the Vendor, no circumstances exist that may justify any such notice. |
17.3 | To the knowledge of the Vendor, the Company has at all times maintained and complied with all approvals, licences, consents, authorities and permits required to conduct the Business. |
18 | Insurance |
18.1 | There are no claims by the Company under any existing insurance policy, and to the knowledge of the Vendor, no event has occurred which is likely to give rise to a claim under any insurance policy. |
18.2 | Nothing has been done or omitted to be done which would make any of the Insurance Policies void or voidable or which would permit an insurer to cancel the Insurance Policy or refuse or materially reduce a claim or materially increase the premiums payable under the Insurance Policy. |
18.3 | To the knowledge of the Vendor, the Company has not received notice from any insurer that it is required to carry out any maintenance, repairs or other works in respect of its Assets. |
18.4 | The Company has effected and maintained all insurances required by law to be effected by it. |
18.5 | There are no premiums in respect of any Insurance Policy that are due but unpaid. |
19 | No related party contracts |
19.1 | Other than the New Property Leases and the Key Person Employment Contract, as at Completion there will be no contracts, agreements, arrangements or understandings between the Company and the Vendor (or any person or entity associated with or controlled by the Vendor). |
20 | Taxation |
20.1 | The Company has maintained proper and adequate records to enable it to comply in all material respects with its obligations to: |
(a) | prepare and submit any information, notices, computations, returns and payments required in respect of any Tax Law; |
(b) | prepare any accounts necessary for compliance with any Tax Law; and |
(c) | retain necessary records as required by any Tax Law. |
20.2 | The Company has paid, or the Accounts provide for, all Taxes which the Company is liable to pay in respect of the period up to and including the Accounts Date. |
20.3 | As at the date of this agreement, to the Vendor’s knowledge, there is no outstanding non-compliance by the Company of its obligations to submit all necessary information, notices, computations and returns to each relevant Governmental Agency in respect of Taxes for all periods up to the date of this agreement. |
20.4 | As at the date of this agreement, the Company is not involved in any audit of any of its income tax returns or Business/Instalment Activity Statements or any dispute with a |
20.5 | The Company is registered for GST under the New Tax System (Goods and Services Tax) Act 1999, and, as far as the Vendor is aware, has complied in all material respects with all laws, contracts, agreements or arrangements binding on it relating to GST (as defined in that Act) and, where the Company has the right to require another party to any such agreement or arrangement to pay to it an amount of GST, it has enforced that right. |
20.6 | There has been no dispute, and there are no outstanding disputes, between the Company and any Taxation authority. |
20.7 | The only liabilities for Tax of the Company arising since the Accounts Date are liabilities arising out of the normal business and trading activities of the Company. |
20.8 | The Company has submitted all necessary information, notices, computations and returns to the relevant Government Agency in respect of any Tax as and when required by Tax Law or such Governmental Agency and, as far as the Vendor is aware, all Tax returns made by the Company have complied in all material respects with the requirements of the relevant Tax authorities. |
20.9 | There is no material difference between the cost of Assets shown in the Accounts and the cost base of those Assets for Tax purposes. |
20.10 | All documents and transactions entered into by the Company which are required to be stamped have been duly stamped. |
20.11 | As far as the Vendor is aware, the Company has not entered into or been a party to any transaction which contravenes the anti-avoidance provisions of any Tax Law. |
20.12 | Nothing has occurred to deny or disallow the Company a Tax deduction in respect of any current year Tax losses, carry forward Tax losses under any Tax Law, as at the Accounts Date, or any Tax losses incurred between the Accounts Date and the Completion Date. |
20.13 | No debt owed to the Company has been, has been agreed to be or will be on Completion forgiven. |
20.14 | All transactions entered into between the Company and its related entities have been conducted on an arms-length and commercial basis. No excessive payments have been made by the Company to its related entities within the meaning of Division 7A of the Income Tax Assessment Act 1936 (Cth) and all loans to employees have been made on arm’s length terms and for the minimum interest rate prescribed by that Division 7A. |
21 | Scrip Consideration |
21.1 | The Vendor is acquiring the shares of Class A Common Stock of Malibu US received as Scrip Consideration for its own account and not as a nominee or agent for any other person, for investment purposes only and without a view to the resale or distribution of such securities or any interest therein in violation of the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any applicable securities laws of any other jurisdiction and the Vendor does not have any present intention of selling, granting any participation in, or otherwise distributing the same. By executing this agreement, the Vendor further represents that it does not have any contract with any person to, directly or indirectly, sell, transfer or grant participations, with respect to any shares of Class A Common Stock of Malibu US received as Scrip Consideration, and has not solicited any person for such purpose. |
21.2 | The Vendor understands and acknowledges that the shares of Class A Common Stock of Malibu US received as Scrip Consideration have not been and will not be registered under the Securities Act nor the securities laws of any other jurisdiction, nor is such registration contemplated and, therefore, that such securities cannot be resold unless they are |
21.3 | The Vendor understands that any offer or sale of the shares of Class A Common Stock of Malibu US received as Scrip Consideration by the Vendor, a distributor, any of their respective affiliates, or any person acting on behalf of any of the foregoing, if made prior to the expiration of a six-month period following the Completion Date, will be made pursuant to the following conditions: |
(a) | The purchaser of the securities (other than a distributor) certifies that it is not a U.S. person as defined in Rule 902 of Regulation S of the Securities Act and is not acquiring the securities for the account or benefit of any U.S. person or is a U.S. person who purchased securities in a transaction that did not require registration under the Securities Act; |
(b) | The purchaser of the securities agrees to resell such securities only in accordance with the provisions of Regulation S of the Securities Act, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and agrees not to engage in hedging transactions with regard to such securities unless in compliance with the Securities Act; |
(c) | The securities will contain a legend to the effect that transfer is prohibited except in accordance with the provisions of Regulation S of the Securities Act, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration; and that hedging transactions involving those securities may not be conducted unless in compliance with the Securities Act. |
21.4 | The Vendor is an “Accredited Investor,” as such term is defined in Rule 501 under the Securities Act, and has the business or financial experience or the business or financial experience of its professional adviser, who is unaffiliated with and who is not compensated by Malibu US or any affiliate of Malibu US or selling agent of Malibu US directly or indirectly, from which it could be reasonably assumed that Vendor has the capacity to protect its own interest in connection with the transaction and to evaluate the merits and risks of, and other considerations relating to, the purchase and ownership of shares of Class A Common Stock of Malibu US. In such evaluation, the Vendor has relied on its own independent investigation and has not relied upon any representations, warranties or agreements of any kind, either expressed or implied, including as to the accuracy or completeness of any of the information provided or made available to the Vendor or any of its representatives, other than those set forth in this agreement. |
21.5 | The Vendor has evaluated the risks of acquiring equity securities of Malibu US, understands there are substantial risks of loss incidental to the acquisition of the Scrip Consideration and has determined that the shares of Class A Common Stock of Malibu US received as Scrip Consideration are a suitable investment for the Vendor. |
21.6 | The Vendor acknowledges that it is a person who can bear the economic risk of its investment in the shares of Class A Common Stock of Malibu US received as Scrip Consideration. |
21.7 | The Vendor has received copies of Malibu US’ annual report on Form 10-K for the fiscal year ended June 30, 2014, filed with the U.S. Securities and Exchange Commission on September 25, 2014. The Vendor has also had an opportunity to discuss Malibu US’ business, management, financial affairs and the terms and conditions of the acquisition of the Scrip Consideration with, including the opportunity to ask questions of, and receive answers from, Malibu US’ management or its authorized representatives and has obtained all information it has requested to its satisfaction. |
21.8 | The Vendor understands that: |
(a) | No governmental agency has passed upon the shares of Class A Common Stock of Malibu US received as Scrip Consideration or made any findings or determination as to the fairness of the acquisition of the Scrip Consideration; and |
(b) | The representations, warranties, agreements, undertakings and acknowledgments made by the Vendor in this agreement will be relied upon by Malibu US and its agents and representatives in determining the Vendor’s suitability as an acquirer of the shares of Class A Common Stock of Malibu US received as Scrip Consideration and Malibu US’ compliance with various securities laws, and shall survive the Vendor becoming a shareholder of Malibu US. |
21.9 | The Vendor resides in *, Australia. The Vendor is not a U.S. person and is acquiring the shares of Class A Common Stock of Malibu US received as Scrip Consideration outside the United States in an offshore transaction meeting the requirements of Regulation S of the Securities Act. The Vendor is not acquiring the shares of Class A Common Stock of Malibu US received as Scrip Consideration for the account or benefit of any U.S. person. The Vendor hereby represents that it has satisfied the full observance of the laws of its jurisdiction of residence in connection with the acquisition of the shares of Class A Common Stock of Malibu US received as Scrip Consideration or any use of this agreement, including (i) applicable legal exchange requirements within its jurisdiction for the acquisition of such shares (ii) all foreign consents that may need to be obtained, and (iii) applicable income tax and other tax consequences, if any, that may be relevant to the acquisition, holding, redemption, sale or transfer of such shares. The Vendor’s subscription for, and continued beneficial ownership of, the shares of Class A Common Stock of Malibu US received as Scrip Consideration will not violate any applicable securities or other laws of the Vendor’s jurisdiction of residence. |
21.10 | The Vendor acknowledges that it is not acquiring the Scrip Consideration as a result of or pursuant to: (i) any advertisement, article, notice or other communications published in any newspaper, magazine or similar media (including any internet site whose information about Malibu US is not password protected) or broadcast over television or radio, (ii) any seminar or meeting whose attendees, including the Vendor, had been invited as a result of, subsequent to or pursuant to any of the foregoing, or (iii) any solicitation of a purchase of any of the shares of Class A Common Stock of Malibu US by a person other than a representative of Malibu US. The Vendor has not received any general solicitation or general advertising concerning Malibu US or the shares of Class A Common Stock of Malibu US. |
Schedule 3 | Purchaser’s Warranties |
1.1 | The Purchaser has taken all necessary action to authorise the execution, delivery and performance of this agreement in accordance with its terms and to carry out the transactions contemplated by this agreement. |
(a) | enter into this agreement and to carry out the transactions that this agreement contemplates; and |
(b) | own its property and to carry on its business. |
1.3 | This agreement constitutes the legal, valid and binding obligations of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to any necessary stamping or registration. |
1.4 | The Purchaser is not entering into this agreement as trustee of any trust or settlement. |
1.5 | The Purchaser is a wholly-owned subsidiary of Malibu LLC and Malibu LLC is a subsidiary of Malibu US. |
1.6 | The Purchaser is not Insolvent. |
Schedule 4 | Malibu US’s Warranties |
1.1 | Malibu US has taken all necessary action to authorise the execution, delivery and performance of this agreement in accordance with its terms and to carry out the transactions contemplated by this agreement. |
(a) | enter into this agreement and to carry out the transactions that this agreement contemplates; and |
(b) | own its property and to carry on its business. |
1.3 | This agreement constitutes the legal, valid and binding obligations of Malibu US, enforceable against Malibu US in accordance with its terms, subject to any necessary stamping or registration. |
1.4 | Malibu US is not entering into this agreement as trustee of any trust or settlement. |
1.5 | Malibu US is not Insolvent. |
1.6 | The Scrip Consideration of Malibu US securities to be issued pursuant to this agreement, when issued in accordance with the terms of this agreement, will be duly authorized, validly issued, fully paid and nonassessable. |
Schedule 5 | Plant and Equipment |
Schedule 6 | Employees |
Schedule 7 | New Property Leases |
Schedule 8 | Key Person Employment Agreement |
Schedule 9 | Completion Statement |
Schedule 10 | Stock valuation principles |
Schedule 11 | Third Party Intellectual Property |
SIGNED by XAVIER STUART WEST in the presence of: | ) ) | |
) | ||
/s/ JAMES THEODORE SUIDGEEST | /s/ XAVIER STUART WEST | |
Signature of Witness | Signature of XAVIER STUART WEST | |
JAMES THEODORE SUIDGEEST | ||
Name of Witness (Please print) |
EXECUTED by Malibu Australian Acquisition Corp. | ) | |
/s/ Jack Springer | ||
Signature of Officer | ||
Jack Springer | ||
Name of Officer (please print) | ||
CEO | ||
Title of Officer (please print) |
EXECUTED by MALIBU BOATS PTY LTD: | ) |
/s/ XAVIER STUART WEST | |
Signature of Sole Director and Company Secretary | |
XAVIER STUART WEST | |
Name of Sole Director and Company Secretary (please print) | |
EXECUTED by MALIBU BOATS, INC. | ||
/s/ Jack Springer | ||
Signature of Officer | ||
Jack Springer | ||
Name of Officer (please print) | ||
CEO | ||
Title of Officer (please print) |
Annexure A | Disclosure Material |
Annexure B | Unqualified audit opinion terms |
Annexure C | Disclosure Letter |
Annexure D | Property Termination and Release Deed |
Annexure E | Agreed Announcement |
Annexure F | Mutual Release Deed |
1.0 | PAYMENT AND DISMISSAL |
2.0 | LICENSE |
3.0 | COVENANTS |
4.0 | WARRANTIES |
5.0 | RELEASES |
6.0 | TERM |
7.0 | CONFIDENTIALITY |
8.0 | NOTICES |
PACIFIC COAST MARINE WINDSHIELDS LIMITED AND/OR DARREN BACH | |
917 Cliveden Ave #102, Delta, BC V3M 5R6, Canada | |
Attn: Darren Bach |
MALIBU BOATS, INC. | MH WINDOW, LLC |
5075 Kimberly Way, Loudon, TN 37774 | P.O. Box 3099 Redmond, WA |
Attn: Jack Springer | Attn: John Pugh |
MARINE HARDWARE, INC. | JOHN PUGH |
P.O. Box 3099 Redmond, WA | P.O. Box 3099 Redmond, WA |
Attn: John Pugh | Attn: John Pugh |
9.0 | NO ADMISSION OF LIABILITY |
10.0 | MISCELLANEOUS |
PACIFIC COAST MARINE WINDSHIELD LIMITED | DARREN BACH |
By: /s/ Darren Bach | By: /s/ Darren Bach |
Name: Darren Bach Its: President | Dated: September 29, 2014 |
Dated: September 29, 2014 |
MALIBU BOATS, INC. | JOHN PUGH |
By: /s/ Wayne Wilson | By: /s/ John Pugh |
Name: Wayne Wilson Its: Chief Financial Officer | Date: October 1, 2014 |
Dated: September 30, 2014 | |
MARINE HARDWARE, INC. | MH WINDOWS LLC |
By: /s/ John Pugh | By: /s/ John Pugh |
Name: John Pugh Its: President | Name: John Pugh Its: President |
Dated: October 1, 2014 | Dated: October 1, 2014 |
APPROVED AS TO FORM | ||
Dated: September 29, 2014 | Rohde & Van Kampen PLLC By: /s/ Nathan Pain for Robert E. Rohde, Counsel for Pacific Coast Marine Windshields Limited and Darren Bach | |
Dated: September 29, 2014 | O’Melveny & Myers LLP By: /s/ Darin W. Snyder Darin W. Snyder, Counsel for Malibu Boats, Inc., Tressmark, Inc. d/b/a/ Liquid Sports Marine |
Dated: September 29, 2014 | Lowe Graham Jones By: /s/ Mark P. Walters Mark P. Walters, Counsel for Marine Hardware, Inc., MH Window, LLC, and John F. Pugh |
PACIFIC COAST MARINE WINDSHIELDS LIMITED, a foreign corporation, Plaintiff, v. MALIBU BOATS, LLC, a California limited liability company, MARINE HARDWARE, INC., a Washington corporation, TRESSMARK, INC. d/b/a LIQUID SPORTS MARINE, a Florida corporation, MH WINDOWS, LLC, a Washington limited liability company, and JOHN F. PUGH, an individual, | Case No. 6:12-CV-00033-JA-DAB |
Dated: September __, 2014 | RESPECTFULLY SUBMITTED: ________________________ DARIN W. SNYDER, ESQ. (Pro Hac Vice) California Bar No.: 136003 dsnyder@omm.com BRIAN M. BERLINER, ESQ. (Pro Hac Vice) California Bar No.: 156732 bberliner@omm.com DAVID S. ALMELING, ESQ. (Pro Hac Vice) California Bar No. 235449 dalmeling@omm.com STEVEN P. BASILEO, ESQ. (Pro Hac Vice) California Bar No. 157780 sbasileo@omm.com O’MELVENY & MYERS LLP 400 S. Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Lead Counsel for Defendants Malibu Boats, LLC, and Tressmark, Inc. JEFFREY D. KEINER, ESQ. Florida Bar No.: 181678 jeffrey.keiner@gray-robinson.com TREVOR B. ARNOLD, ESQ. Florida Bar No.: 0545902 tarnold@gray-robinson.com GrayRobinson, P.A. Post Office Box 3068 Orlando, Florida 32802-3068 (407) 843-8880 Telephone (407) 244-5690 Facsimile Local Counsel for Defendants, Malibu Boats, LLC, and Tressmark, Inc. |
Dated: September __, 2014 | ________________________ Robert E. Rohde WA Bar No. 12809 Nathan Paine WA Bar No. 34487 Admitted Pro Hac Vice Rohde & Van Kampen PLLC 1001 Fourth Avenue, Suite 4050 Seattle, WA 98154 Telephone: (206)386-7356 Facsimile: (206)405-2825 E-mail: brohde@rohdelaw.com Lead Counsel for Plaintiff Pacific Coast Marine Windshields Limited |
Dated: September __, 2014 | ________________________ MARK P. WALTERS, WSBA No. 30819 mwalters@flhlaw.com FROMMER LAWRENCE & HAUG LLP 1191 Second Avenue, 20th Floor Seattle, WA 98101 Telephone: (206) 336-5690 Facsimile: (206) 336-5691 Counsel for Defendant MH Window LLC and John F. Pugh |
BORROWER: | MALIBU BOATS, LLC, |
PARENT: | MALIBU BOATS HOLDINGS, LLC, |
GUARANTORS: | MALIBU BOATS DOMESTIC INTERNATIONAL SALES CORP. |
ADMINISTRATIVE AGENT: | SUNTRUST BANK, |
LENDERS: | FIRST TENNESSEE BANK, N.A., |
LENDER | REVOLVING COMMITMENT | PRO RATA SHARE OF AGGREGATE REVOLVING COMMITMENTS |
SunTrust Bank | $12,000,000.00 | 40.000000000% |
First Tennessee Bank, N.A. | $8,000,000.00 | 26.666666700% |
Union Bank, N.A. | $8,000,000.00 | 26.666666700% |
United Community Bank | $2,000,000.00 | 6.666666600% |
TOTAL | $30,000,000.00 | 100.000000000% |
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