A. |
Australian Green Hydrogen Pty Ltd ACN 647 710 914 (AGH) is the owner of and developer of the "The Monarch Hydrogen Project" (MHP)
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B. |
MHP is a project to develop and produce hydrogen in Australia and secure first mover advantage in the Australian market.
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C. |
The projects initial stage is the construction of a 6-6.5 tonne per day modular plant that can scaled as required to meet market needs.
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D. |
AGH has been in discussions with and has engaged with John Cockerill, leading global engineers specialising in Hydrogen plants for the construction and design of a hydrogen plant with initial plans to be installed at Newcastle Port. MHP
has received a quotation for the build and is one of John Cockerill's early stage development projects in Australia.
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E. |
MHP has also engaged in and worked on a draft MOU with the Port of Newcastle (PON) in relation to the location of the plant. The PON has significant advantages as a location for the plant.
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F. |
MHP is also in discussions with H2 liquefaction and distribution solutions providers.
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G. |
The Vendors are the owners of all of the issued shares in AGH which owns all rights to the MHP ("AGH Shares").
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H. |
The Vendor has agreed to sell and the Buyer has agreed to purchase the AGH Shares for the consideration and on the terms and conditions as set out in this agreement.
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1.
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Definitions and interpretation
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1.1 |
Definitions
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(a) |
if determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and
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(b) |
for any other purpose, a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, NSW.
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(c) |
is present, unascertained, immediate, future or contingent;
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(d) |
is based in contract, tort, statute or otherwise; or
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(e) |
involves a third party or a party to this agreement.
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(f) |
Security Interest or other form of security for the payment of money or performance of obligations, including a mortgage, charge, lien, pledge, trust, power or title retention arrangement;
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(g) |
right, interest or arrangement which has the effect of giving another person a preference, priority or advantage over creditors including any right of set-off;
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(h) |
right that a person (other than the owner) has to remove something from land (including a profit a prendre), easement, public right of way, restrictive or positive covenant, lease or license to use or occupy; or
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(i) |
third party right or interest or any right arising as a consequence of the enforcement of a judgment,
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(a) |
in relation to any corporation:
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(1) |
its Liquidation;
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(2) |
an External Administrator is appointed in respect of the corporation or any of its property;
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(3) |
the corporation ceases or threatens to cease to carry on its business;
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(4) |
the corporation being deemed to be, or stating that it is, unable to pay its debts when they fall due;
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(5) |
any other ground for Liquidation or the appointment of an External Administrator occurs in relation to the corporation;
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(6) |
the corporation resolves to enter into Liquidation; or
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(7) |
an application being made which is not dismissed or withdrawn within ten Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause or consider anything described in
paragraphs (1) to (6) (inclusive) above;
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(b) |
in relation to an individual, that person becoming an insolvent under administration as defined in section 9 of the Corporations Act; and
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(c) |
present or future; or
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(d) |
State, federal or otherwise.
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(e) |
actual, contingent or prospective;
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(f) |
present or future;
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(g) |
qualified or unqualified; or
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(h) |
incurred jointly or severally with any other person.
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(i) |
a winding up or liquidation (whether voluntary or involuntary), provisional liquidation, dissolution, bankruptcy or other analogous proceeding; or
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(j) |
an arrangement, assignment, composition or moratorium with or for the benefit of creditors or any class or group of creditors (including an administration or arrangement under part 5.3A of the Corporations Act).
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(k) |
an interest in or right of the Buyer:
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(1) |
reserved over property (including any retention of title to property or any right to set off or withhold payment of any deposit or other money);
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(2) |
created or otherwise arising over property under a mortgage, charge, bill of sale (as defined in any relevant statute), lien, pledge, trust or right; or
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(3) |
by way of security for the payment of a debt or other monetary Obligation or the performance of or compliance with any other Obligation;
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(I) |
any instrument or transaction which reserves, constitutes or evidences the interests and rights referred to in paragraph (a); and
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(m) |
any other interest which constitutes a security interest as that term is defined in the PPS Act.
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1.2 |
Interpretation
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(a) |
Unless the contrary intention appears, a reference in this agreement to:
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(1) |
this agreement or another document includes any variation or replacement of it despite any change in the identity of the parties;
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(2) |
one gender includes the others;
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(3) |
the singular includes the plural and the plural includes the singular;
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(4) |
a person, partnership, corporation, trust, association, joint venture, unincorporated body, Government Body or other entity includes any other of them;
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(5) |
an item, recital, clause, subclause, paragraph, schedule or attachment is to an item, recital, clause, subclause, paragraph of, or schedule or attachment to, this agreement and a reference to this agreement includes any schedule or
attachment;
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(6) |
a party includes the party's executors, administrators, successors, substitutes (including a person who becomes a party by novation) and permitted assigns;
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(7) |
any statute, ordinance, code or other law includes regulations and other instruments under any of them and consolidations, amendments, re- enactments or replacements of any of them;
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(8) |
money is to Australian dollars, unless otherwise stated; and
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(9) |
a time is a reference to the time in Sydney, New South Wales - Australia unless otherwise specified.
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(b) |
The words include, including, such as, for example and similar expressions are not to be construed as words of limitation.
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(c) |
Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
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(d) |
Headings and any table of contents or index are for convenience only and do not affect the interpretation of this agreement.
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(e) |
A provision of this agreement must not be construed to the disadvantage of a party merely because that party or its advisers were responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
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2.
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Sale and Purchase
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2.1 |
Sale and Purchase
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2.2 |
Vendors’ Obligations
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2.3 |
Buyer's Obligations
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2.4 |
Simultaneous actions at Completion
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(a) |
the Obligations of the Vendors and the Buyer under this agreement are interdependent;
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(b) |
unless all obligations of the parties are complied with and fully effective, Completion will not occur; and
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(c) |
all actions required to be performed are taken to have occurred simultaneously on the Completion Date.
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2.5 |
Title, property and risk
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(a) |
until Completion remain solely with the Vendors; and
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(b) |
pass to the Buyer with effect on and from Completion.
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3. |
Post-Completion
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3.1 |
Post-Completion notices
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4. |
Vendors Warranties
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4.1
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Vendors Warranties
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(a) |
Each of AGH and the Vendors represents and warrants to the Buyer that as at the Agreement Date and the Completion Date each of the Vendors Warranties is true and accurate in all material respects.
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(b) |
Each of AGH and the Vendors indemnifies the Buyer against all Liabilities arising directly or indirectly from or incurred in connection with any incorrect or misleading Vendor's Warranty.
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(c) |
Each Vendors Warranty must be construed independently and is not limited or extended by reference to any other Warranty.
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4.2 |
Buyer's actions where breach of Vendors Warranties occurs or is alleged
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(a) |
If the Buyer becomes aware of any breach or potential breach of any Vendors Warranty the Buyer must notify the Vendors of the breach or potential breach.
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(b) |
If a payment is made by the Vendors for a breach of any of the Vendors Warranties, the payment is to be treated as a reduction in the Purchase Price.
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(c) |
If the Buyer has provided notice of a breach of warranty and it cannot be remedied within 30 days then the Buyer shall have the right to terminate this agreement and cancel the Performance shares
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4.3 |
Continuing Warranties
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5. |
Buyer Warranties
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(a) |
The Buyer represents and warrants to the Vendors that as at the Agreement Date and the Completion Date each of the Buyer Warranties is true and accurate in all material respects.
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(b) |
The Buyer indemnifies the Vendors against all Liabilities arising directly or indirectly from or incurred in connection with any incorrect or misleading Buyer's Warranty.
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(c) |
Each Buyer Warranty must be construed independently and is not limited or extended by reference to any other Warranty.
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6. |
GST
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6.1 |
GST exclusive amounts
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6.2 |
Sale of a going concern
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6.3 |
Recovery of any GST payable on the supply
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6.4 |
Tax invoice
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6.5 |
Adjustment events
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6.6 |
Reimbursements
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7. |
Confidentiality
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7.1 |
Agreement confidential
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7.2 |
Exceptions
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(a) |
to the extent required by law, applicable stock exchange requirements or to enable the proper performance of a party’s Obligations under this agreement;
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(b) |
that is generally available in the public domain other than as a result of a breach of this agreement by such party;
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(c) |
to its (and its Related Bodies Corporates') respective directors, officers, employees, lawyers, auditors, tax advisers and financiers, and the financier's lawyers, on a need to know basis, provided that the Vendors shall use its reasonable
endeavours to ensure that the persons to whom this information is disclosed are made aware of the confidential nature of the Confidential Information;
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(d) |
to a bona fide prospective buyer of shares in, or assets of, the party, and such prospective buyer's directors, officers, employees, professional advisers and financiers (Representatives), provided
that such prospective buyer has executed a confidentiality undertaking in respect of any Confidential Information provided to it and its Representatives; and
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(e) |
to any other third party (with the prior written consent of the other parties, such consent not to be unreasonably withheld), provided such third party is, prior to disclosure, under an Obligation to keep the information disclosed to it
confidential pursuant to a confidentiality undertaking in a form acceptable to the other party acting reasonably.
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7.3 |
Public announcements
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(a) |
Except as otherwise required by Law or applicable stock exchange requirements, no party will issue any press release or public statement relating to or concerning this agreement, or the matters contained in this agreement, without
obtaining the prior approval of the other party of the content and the manner of presentation and publication of the release or statement, which approval must not be unreasonably withheld, conditioned or delayed.
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(b) |
No approval for any press release or public statement is required if, and to the extent that, the disclosure is required by Law or applicable stock exchange rules (whether in Australia or overseas), provided that before making any such
announcement the party must first use its best endeavours to consult with the other parties about the content and the manner of presentation and publication of the announcement to the extent permitted by the relevant Law or applicable stock
exchange rules.
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8. |
Notices
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8.1 |
Form
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(a) |
in writing and in the English language;
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(b) |
be signed by the party or by an authorised officer of the sender.
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8.2 |
Manner
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(a) |
personally served on a party;
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(b) |
left at the party’s current address for service;
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(c) |
sent to the party's current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail; or
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(d) |
sent by electronic mail to the party's electronic mail address.
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8.3 |
Time
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(a) |
delivery in person, when delivered.
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(b) |
delivery by post:
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(1) |
in Australia to an Australian address, the fourth Business Day after posting; or
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(2) |
in any other case, on the tenth Business Day after posting; or
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(c) |
electronic mail, when the sender's computer reports that the message has been delivered to the electronic mail address of the addressee, but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next
Business Day in that place.
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8.4 |
Changes
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9. |
Miscellaneous
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9.1 |
Legal costs
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9.2 |
Amendment
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9.3 |
Waiver and exercise of Rights
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(a) |
A waiver of any provision of this agreement, or consent to any departure from the terms of this agreement, by any party will not be effective unless in writing, and then such waiver or consent will
be effective only in the specific instance and for the purpose for which it is given.
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(b) |
A failure to exercise or delay in exercising any Right, power or privilege under this agreement will not operate as a waiver of that Right, power or privilege or of any other Right, power or privilege under the agreement.
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(c) |
A single or partial exercise or waiver by a party of a Right relating to this agreement does not prevent any other exercise of that Right or the exercise of any other Right.
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(d) |
A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a Right.
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9.4 |
Severability
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9.5 |
Further assurance
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9.6 |
Counterparts
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9.7 |
Indemnities
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9.8 |
Entire understanding
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(a) |
This agreement contains the entire understanding between the parties as to the subject matter of this agreement and replaces and supersedes the Binding Heads of Agreement.
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(b) |
All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this agreement are merged in and superseded by this agreement and are of no effect. No party is liable to
any other party in respect of those matters.
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(c) |
No oral explanation or information provided by any party to another:
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(1) |
affects the meaning or interpretation of this agreement; or
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(2) |
constitutes any collateral agreement, warranty or understanding between any of the parties.
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9.9 |
Governing law
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1. |
Buyer Warranties
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(a) |
It is a company duly incorporated and validly existing under the laws of the place of its incorporation.
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(b) |
It has the legal Right and power to enter into this agreement and to observe and perform its Obligations under this agreement.
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(c) |
Except as otherwise provided in this agreement, all necessary authorisations, licences, consents, permissions, permits or non-objections for the execution, delivery and performance by it of this agreement in accordance with its terms have
been obtained.
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(d) |
The execution, delivery and performance of this agreement by it has been duly and validly authorised by all necessary corporate action on its part.
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(e) |
This agreement is valid and binding on it and is enforceable against it in accordance with its terms.
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(f) |
No Insolvency Event has occurred in respect of the Buyer and there are no facts, matters or circumstances which may result in such any Insolvency Event occurring.
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1. |
Standing
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(a) |
It is a company duly incorporated and validly existing under the Laws of the place of its incorporation.
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(b) |
It has the legal Right and power to enter into this agreement and to perform its Obligations under this agreement.
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(c) |
The execution, delivery and performance of this agreement by it has been duly and validly authorised by all necessary corporate action on its part.
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(d) |
This agreement is valid and binding on it and is enforceable against it in accordance with its terms.
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(e) |
The execution and performance of this agreement by it and the other transactions contemplated by this agreement do not violate or conflict with or result in a breach of or constitute a default under:
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(1) |
any Law or any judgment, ruling, order, authorisation, requirement or decree of any Governmental Body binding on it;
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(2) |
its constitution or other constituent documents; or
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(3) |
any other document or agreement which is binding upon it or its assets.
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(f) |
No meeting has been convened, resolution proposed or order made for the winding up, or the appointment of an administrator, of it, and no mortgagee or chargee has taken, attempted to take or indicated an intention to exercise its rights
under any security.
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(g) |
That as at the date of this Agreement AGH
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(1) |
is the 100% owner of all assets rights and IP rights of the Monarch Hydrogen Project
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(2) |
has no liabilities or potential liabilities other than as disclosed to the Buyer in writing.
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2. |
Title
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(a) |
In respect of all AGH Shares:
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(1) |
the AGH Shares are free from Encumbrances other than the Permitted Encumbrances;
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(2) |
to the best of the Vendors' knowledge, information and belief, it has complied with all Laws relating to the AGH Shares;
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(3) |
there are no outstanding amounts (including rental or rates) due in relation to AGH Shares;
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(4) |
no AGH Shares are the subject of a Claim by a trustee in bankruptcy or a liquidator;
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(5) |
there are no Claims, actions, suits, proceedings or investigations pending or threatened by or against it in respect of the transactions
contemplated hereby, at law or in equity or before any Commonwealth, State, municipal or other governmental department, commission, board, agency, instrumentality or authority and
further it does not know or have any reason to know of any basis for such Claim, action, suit, proceeding or investigation; and
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(6) |
there is no unsatisfied judgment, order or writ of execution which affects any of the AGH Shares or its ability to complete its Obligations under this agreement.
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3. |
Disclosure Material
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(a) |
As at the Completion Date, the Vendors have disclosed all information in their possession or under their control that could be reasonably expected to be disclosed to enable the Buyer as prudent purchaser to make a decision to enter into
this agreement and purchase the AGH Shares.
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(b) |
The information provided by or on behalf the Vendors regarding the AGH Shares is not misleading in any material respect.
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4. |
Solvency
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(a) |
No Insolvency Event has occurred in respect of the Vendors or AGH and there are no facts, matters or circumstances which may result in such any Insolvency Event occurring.
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(b) |
It is able to pay its debts as and when they fall due and no mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security of which it is the mortgagor or charger.
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(c) |
No External Administrator has been appointed, or is threatened or expected to be appointed, over the whole or a substantial part of the AGH Shares and, to the best of the Vendors' knowledge,
information and belief there are no circumstances justifying such an appointment.
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1) |
Tranche 1: 10,000,000 Performance Shares that are subject to the conditions that:
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a) |
at least $500,000 be raised by the Buyer to assist in the funding of a study into the commercial and operational aspects of MHP (Feasibility Study);
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b) |
the Feasibility Study shall be completed within 6 months thereof (or such other reasonable time as agreed between the parties); and
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c) |
the Feasibility Study delivers a commercially acceptable result.
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2) |
Tranche 2: 10,000,000 Performance Shares that are subject to the conditions that:
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a) |
Tranche 1 conditions have been satisfied; and
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b) |
AGH reaches agreement with Port of Newcastle in relation to securing the relevant location for the MHP or the Vendors secure another alternative location for the MHP acceptable to the Buyer.
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3) |
Tranche 3: 10,000,000 Performance Shares that are subject to the conditions that:
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a) |
Tranche 1 and Tranche 2 conditions have been satisfied; and
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b) |
AGH secures an offtake agreement for the MHP on reasonable commercial terms.
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Executed by Apaert Pty Ltd
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/s/ Phoebe Neylon
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Sole Director
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Phoebe Neylon
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Print full name of Director
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Executed by Hest Pty Ltd
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/s/ Susan Sommers
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Sole Director
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Director/Secretary
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Susan Sommers
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Print full name of Director
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Print full name of Director/Secretary
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Executed by Australian Green Hydrogen Pty Ltd
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/s/ Phoebe Neylon
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Sole Director
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Phoebe Neylon
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Print full name of Director
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Executed as a deed by Hunter Energy Limited
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/s/ James Myatt
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/s/ Warren Kember
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Sole Director
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Director/Secretary
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James Myatt
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Warren Kember
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Print full name of Director
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Print full name of Director/Secretary
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