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Exhibit 2.1
[BLAKE DAWSON WALDRON LAWYERS LETTERHEAD]
STARCH AUSTRALASIA
SHARE SALE AGREEMENT
GOODMAN FIELDER INGREDIENTS LIMITED
PENFORD HOLDINGS PTY LIMITED
28 AUGUST 2000
REF: DTR.RXA.02-1250-2644
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SHARE SALE AGREEMENT
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CONTENTS
1. INTERPRETATION 1
1.1 General definitions 1
1.2 Other definitions 10
1.3 Rules for interpreting this agreement 11
1.4 Business Days 12
1.5 Payments 12
1.6 Vendor's knowledge 12
2. AGREEMENT TO SELL AND BUY THE SHARES 12
2.1 Sale and purchase 12
2.2 Title, property and risk 12
2.3 FIRB approval 13
2.4 Material Adverse Change 13
3. CONDUCT PENDING COMPLETION 14
3.1 Ordinary course of business 14
3.2 Pre-Completion/Completion transactions 14
3.3 Purchaser Entities' Access prior to Completion 15
3.4 Insurance cover 16
4. COMPLETION 16
4.1 Time and place of Completion 16
4.2 Obligations of the Vendor at Completion 16
4.3 Obligations of Purchaser at Completion 17
4.4 Purchaser's obligation to register 18
4.5 Vendor's obligations until registration 18
5. POST COMPLETION ADJUSTMENT 18
5.1 Stocktake 18
5.2 Preparation and delivery of Completion Date Net Asset
Statement 19
5.3 Agreed Accounting Principles 19
5.4 Preparation and delivery of the Certificate 19
5.5 Working papers 19
5.6 Access and co-operation 19
5.7 Acceptance of Completion Date Net Asset Statement 19
5.8 Resolving dispute over the results of Completion Date Net
Asset Statement 20
5.9 Adjustment 20
5.10 Post Completion audits 21
5.11 Entitlement to Royalty Payments 21
5.12 Due date for Royalty Payments 21
5.13 Statement to be provided with each Royalty Payment 21
5.14 Date and value of sales for calculation of Royalty Payments 21
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5.15 Records of information in relation to Royalty Payments 22
5.16 Access and co-operation in relation to Royalty Payments 22
5.17 Purchaser's acknowledgment 22
6. WARRANTIES AND INDEMNITY BY VENDOR 22
6.1 Vendor's Warranties 22
6.2 Vendor's Warranty indemnity 23
6.3 Exceptions and qualifications 23
6.4 Purchaser's acknowledgments 25
6.5 Third party claims 26
6.6 Continuing warranties 27
6.7 Waiver of rights by Vendor 27
6.8 Disclosure of breach of Vendor's Warranty 27
7. TAXATION INDEMNITY 27
7.1 Definitions 27
7.2 Vendor's Tax indemnity 28
7.3 Exceptions and Qualifications 28
7.4 Repayment 29
7.5 Disputing Action re Assessment 29
7.6 Taxation returns and correspondence 30
7.7 Taxation audits 30
7.8 Repayments or Overprovisions 31
8. ENVIRONMENTAL INDEMNITY 31
8.1 Definitions 31
8.2 Vendor's Environmental indemnity 31
8.3 Exceptions and qualifications - generally 32
8.4 Exceptions and qualifications - Shell Depot 32
8.5 Plan of Work 33
8.6 Expert determination 33
8.7 Disputing Action re Environmental Issue 34
8.8 Carrying out the Plan of Work 35
8.9 Purchaser's mitigation of Environmental expenses 36
9. WARRANTIES AND INDEMNITY BY PURCHASER 36
9.1 Purchaser's Warranties 36
9.2 Purchaser's indemnity 36
10. LOSSES AND CLAIMS 36
10.1 Mitigation 36
10.2 Indemnity Tax effect 37
10.3 Payment and treatment of Claims against Vendor 37
10.4 Operation of indemnities 37
10.5 Claim under Ancillary Agreement 37
11. AUSTRALIAN SUPERANNUATION 37
ii.
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11.1 Definitions 37
11.2 Object of clause 11 38
11.3 The Company to cease participating in the Vendor's Fund 38
11.4 Purchaser's Fund 38
11.5 Membership of the Purchaser's Fund 39
11.6 Calculation of Transfer Amount 39
11.7 Obtaining consent to transfer 39
11.8 Consented transfer to Purchaser's Fund 39
11.9 Transfer to other superannuation arrangements 39
11.10 Purchaser must ensure membership in Purchaser's Fund 39
11.11 Transfer Amount to be paid in cheque or cash 39
11.12 Access to records 39
11.13 Purchaser's contributions 40
12. NEW ZEALAND SUPERANNUATION 40
12.1 Definitions 40
12.2 Object of clause 12 40
12.3 The Subsidiary to cease participating in the Vendor's NZ Fund 41
12.4 Purchaser's NZ Fund 41
12.5 Membership of the Purchaser's NZ Fund 41
12.6 Calculation of NZ Transfer Amount 41
12.7 Obtaining consent to transfer 41
12.8 Consented transfer to Purchaser's NZ Fund 41
12.9 Transfer to other superannuation arrangements 41
12.10 Purchaser must ensure membership in Purchaser's NZ Fund 42
12.11 NZ Transfer Amount to be paid in cheque or cash 42
12.12 Access to records 42
12.13 Purchaser's contributions 42
13. RESTRAINT 42
13.1 Definitions 42
13.2 Restraint obligation 43
13.3 Permitted involvement 43
13.4 Reasonableness of restraint 43
13.5 Severability 44
14. TRANSITIONAL SERVICES 44
15. NOTICES 44
15.1 Method of giving notices 44
15.2 Time of receipt 44
15.3 Address of parties 45
16. GENERAL 45
16.1 Governing law 45
16.2 Waiver of rights 45
16.3 Amendment 46
iii.
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16.4 Counterparts 46
16.5 Further assurance 46
16.6 Operation of this agreement 46
16.7 Costs generally 46
16.8 Stamp duty 46
16.9 No merger 47
16.10 Attorneys 47
16.11 Interest for failure to pay 47
16.12 Interest payable on judgment 47
16.13 Confidentiality 47
SCHEDULES
1 STOCKTAKE PROCEDURES 48
2 ACCOUNTS DATE NET ASSET STATEMENT 49
3 AGREED ACCOUNTING PRINCIPLES 50
4 CERTIFICATE 58
5 PURCHASER'S WARRANTIES 60
6 VENDOR'S WARRANTIES 61
7 DISCLOSURES 70
8 PROPERTY 71
9 PATENTS 73
iv.
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SHARE SALE AGREEMENT
DATE
PARTIES
GOODMAN FIELDER INGREDIENTS LIMITED ABN 11 000 147 580 (the "VENDOR")
PENFORD HOLDINGS PTY LIMITED ACN 094 279 339 a wholly owned subsidiary
of Penford Corporation (the "PURCHASER")
RECITALS
A. The Vendor is the legal and beneficial owner of the Shares.
B. The Vendor wishes to sell to the Purchaser and the Purchaser wishes to
buy from the Vendor the Shares on the terms and conditions of this
agreement.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 GENERAL DEFINITIONS
In this agreement, including the recitals, unless the context otherwise
requires:
"ACCOUNTS" means the unaudited consolidated profit and loss statement of
the Bodies Corporate for the accounting reference period ended on the
Accounts Date and the balance sheet of the Bodies Corporate as at the
Accounts Date.
"ACCOUNTS DATE" means 30 June 2000.
"ACCOUNTS DATE NET ASSET STATEMENT" means the unaudited consolidated net
asset statement of the Bodies Corporate as at the Accounts Date set out
in schedule 2.
"ACCOUNTING STANDARDS" means:
(a) the accounting standards required under the Corporations Law;
(b) if no accounting standard applies under the Corporations Law in
relation to an accounting practice, the standards acceptable to
the Australian Accounting Research Foundation, including:
(i) the Australian Accounting Concepts; and
(ii) applicable Australian Accounting Standards; and
(c) Urgent Issues Group consensus views.
"AFFILIATE" means, in relation to a body corporate:
(a) each of the body's related bodies corporate;
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(b) each of the body's directors;
(c) each of the body's substantial shareholders (as that term is
defined in section 708(4) of the Corporations Law, assuming the
body to be a "company" as defined in section 707(1) of the
Corporations Law as in force at the date of this agreement);
(d) each person in whom any of the persons identified in paragraphs
(a) to (c) above is concerned or interested directly or
indirectly (including through any interposed body corporate or
other legal entity) whether as trustee, principal, agent,
shareholder, unitholder, licensor, licensee or in any other
capacity; and
(e) each person with whom the body or any of the persons identified
in paragraphs (a) to (d) has entered into any license agreement,
joint venture agreement, partnership, alliance or other
combination which involves the exploitation of a Product or
under which the body or any of the persons identified in
paragraphs (a) to (d) above shares in economic benefits from the
exploitation of a Products.
"AGREED ACCOUNTING PRINCIPLES" means the accounting policies and
principles as set out in schedule 3 and, to the extent not inconsistent
with those accounting policies and principles, the Accounting Standards.
"AGREED FORM" means, in relation to any document, the document executed
by the relevant parties or the draft of that document agreed by the
Principal Parties and, for the purposes of identification, initialled by
them.
"ANCILLARY AGREEMENT" means each of:
(a) each Car Lease Novation Deed;
(b) each GF Intellectual Property Transfer Deed;
(c) Hi-maize Access Deed;
(d) Hi-maize Supply Agreement;
(e) Intellectual Property Umbrella Deed;
(f) Preferred Supplier Deed;
(g) each Supply Agreement;
(h) Trade Mark Licence Deed;
(i) Transitional Services Agreement; and
(j) Umbrella Guarantee and Indemnity.
"BEVTECH 1057" means resistant starch product conforming with the
Specifications.
"BEVTECH 1068" means resistant starch product conforming with the
Specifications.
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"BEVTECH PRODUCT" means resistant starch means the resistant starch
ingredient known at the date of this agreement as "Bevtech" resistant
starch (including the variants Bevtech 1057 and Bevtech 1068) and
manufactured from time to time pursuant to the Patents, including any
Improvements.
"BNP FACILITY" means the maize purchase facility provided by BNP Pacific
(Australia) Limited to the Company.
"BODY CORPORATE" means each of the Company and the Subsidiary.
"BUSINESS" means, in relation to a Body Corporate, the business, if any,
conducted by that Body Corporate as at the date of this agreement.
"BUSINESS DAY" means a day on which commercial banks are open for
general banking business in New South Wales.
"CALCULATION PERIOD" means each of the following periods:
(a) the First Period;
(b) each financial year from 1 July 2001 to 30 June 2007; and
(c) the Last Period.
"CAR LEASE NOVATION DEED" means, in respect of each novation deed
between Lease Plan Australia Limited ABN 57 006 923 011 or Orix
Australia Corporation Limited ABN 79 002 992 681, a GF Group entity and
an Employee, a deed in the Agreed Form conditional only on Completion
novating the relevant GF Group entity's rights and obligations to the
Company.
"CERTIFICATE" means the certificate of the Vendor's Auditors in relation
to the Completion Date Net Asset Statement and in the form of the
certificate set out in schedule 4.
"CLAIM" means any claim, demand or cause of action (whether at law, in
equity or based on statute).
"COMPANY" means Starch Australasia Limited ABN 48 003 780 229.
"COMPANY DEBT" means the amount owing by the Company at the Completion
Date to the GF Group (but excluding any trading debts arising in the
ordinary course of business) as certified by the Vendor to the Purchaser
on the Business Day immediately before the Completion Date.
"COMPLETION" means completion of the sale and purchase of the Shares
under clause 4.
"COMPLETION DATE" means the day on which Completion occurs, which will
be 29 September 2000 or any other date that is agreed in writing by the
Principal Parties.
"COMPLETION DATE NET ASSET STATEMENT" means the consolidated net asset
statement of the Bodies Corporate as at the Completion Date, prepared,
and agreed or determined, in accordance with clause 5.
3.
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"CONTAMINATED" means:
(a) in Australia, that land is affected or degraded by the presence
of any chemical or substance not naturally occurring in or above
levels naturally occurring in land or groundwater (including any
dangerous good, hazardous substance or waste); and
(b) in New Zealand, that land is affected or degraded by the
presence of any contaminant, as defined in section 2 of the
Resource Management Act 1991 (NZ), or hazardous substance, as
defined in section 2 of the Hazardous Substances and New
Organisms Act 1996 (NZ).
"CULTURE-PRO" means the resistant starch ingredient known at the date of
this agreement as "Culture-Pro" resistant starch (including the
"Culture-Pro" variant conforming with the Specifications) and
manufactured from time to time pursuant to the Patents, including any
Improvements.
"DISCLOSURE" means each disclosure listed in schedule 7.
"DISPUTING ACTION" means, in respect of a matter, any action to cause
the matter to be withdrawn, reduced, clarified or amended or to avoid,
dispute, resist, object to, defend, appeal against, settle or compromise
the matter or any adjudication of it.
"DUE DILIGENCE MATERIAL" means:
(a) all documents listed in the index distributed to the Purchaser
with the due diligence CD-ROM on 2 June 2000;
(b) all documents listed in the index headed "the Company documents
released to Penford as answers to Q&A", dated 28 August 2000;
(c) the Information Memorandum; and
(d) the document headed "Q&A Record" dated 28 August 2000,
copies of which have been signed on behalf of each of the Principal
Parties for the purposes of identification on the date of this
agreement.
"EMPLOYEE" means any person employed as at Completion by a Body
Corporate.
"ENVIRONMENT":
(a) in Australia means all components of the earth, including
(i) land, air and water;
(ii) any layer of the atmosphere;
(iii) any organic or inorganic matter and any living organism;
(iv) the aesthetic characteristics of the components of the
earth, including appearance, sound, odour, taste and
texture; and
(v) ecosystems with any combinations of the above; and
4.
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(b) in New Zealand, has the same meaning as "Environment" in section
2 of the Resource Management Act 1991 (NZ).
"ENVIRONMENTAL ASPECT" means the interaction, relationship or impact of
a structure, building, operation or activity with the Environment,
including for example:
(a) impacts of structures, buildings, operations or activities on
planning schemes, items of heritage or endangered species;
(b) structures, buildings, operations or activities causing or
having caused Pollution or Contamination; and
(c) structures, buildings, operations or activities otherwise having
an adverse effect on the Environment.
"ENVIRONMENTAL CLAIM" means any Claim relating to:
(a) Contamination or Pollution on or from the Properties;
(b) all other Environmental Aspects of or in relation to the
Properties and the Business; and
(c) any Environmental Law as it applies to the Properties.
"ENVIRONMENTAL LAW" includes any common law or statute, regulation,
by-law, proclamation or other regulation (whether of a local authority,
of a State or of the Commonwealth or New Zealand Parliament), or
licence, permit, approval, consent, deed, agreement or condition, issued
or made pursuant to any such common law or statute, regulation, by-law,
proclamation or other regulation, that has as its object, purpose or
effect any one or more of:
(a) the protection of the Environment;
(b) the prevention, control, abatement or investigation of Pollution
or Contamination or their effects;
(c) the regulation of waste, dangerous goods or hazardous
substances; and
(d) the authorisation and control of any Environmental Aspect.
"EXCLUDED PRODUCT SALES" means any sale or supply of a Product by a Body
Corporate or an Affiliate of a Body Corporate to another Body Corporate
or an Affiliate of a Body Corporate if the other Body Corporate or
Affiliate does not, and does not intend to, use the Product in a process
of manufacture.
"FIRB APPROVAL" means the approval referred to in clause 2.4(a).
"FIRST PERIOD" means the period from Completion until 30 June 2001.
"GF GROUP" means Goodman Fielder and each of its subsidiaries.
"GF INTELLECTUAL PROPERTY TRANSFER DEEDS" means the deeds referred to in
clause 2(a) and clause 2(b) of the Intellectual Property Umbrella Deed
to transfer ownership of certain
5.
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intellectual property from GF Group entities to the Purchaser
immediately after Completion.
"GOODMAN FIELDER" means Goodman Fielder Limited ABN 44 000 003 958.
"GOVERNMENT AUTHORITY" means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
"GST" means:
(a) the same as in the GST Law; and
(b) any other goods and services tax, or any Tax applying to this
transaction in a similar way.
"GST LAW" means:
(a) in Australia, the same as "GST law" means in A New Tax System
(Goods and Services Tax) Act 1999 (Cth); and
(b) in New Zealand, the Goods and Services Tax Act 1985 (New
Zealand);
"HI-MAIZE" means resistant starch product conforming with the
Specifications.
"HI-MAIZE 1043" means resistant starch product conforming with the
Specifications.
"HI-MAIZE ACCESS DEED" means a deed in the Agreed Form between Goodman
Fielder, Quality Bakers Australia Limited, the Purchaser and the Company
for Quality Bakers Australia Limited's and Goodman Fielder's (including
GF Group entities) access to the supply of Hi-maize and related
resistant starch applications after Completion.
"HI-MAIZE PRODUCT" means the resistant starch ingredient known at the
date of this agreement as Hi-maize resistant starch (including the
variants Hi-maize and Hi-maize 1043) and manufactured from time to time
pursuant to the Patents, including any Improvements.
"HI-MAIZE SUPPLY AGREEMENT" means an agreement in the Agreed Form
between the Company, Goodman Fielder Mills Limited, Quality Bakers
Australia Limited and The Uncle Tobys Company Limited for the supply of
Hi-maize and related resistant starch applications.
"IMPROVEMENT" means any improvement, modification, adaptation,
innovation, invention or development in or to or derived wholly or
partly from any of the Inventions or Patents:
(a) made by or on behalf of the Company or the Purchaser (or any
Affiliate of either of them) in its own right or in conjunction
with any other party; or
6.
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(b) licensed to or by the Company or the Purchaser (or any Affiliate
of either of them),
including all Intellectual Property rights and confidential information
of the Company or the Purchaser (or any Affiliate of either of them) or
licensed to or by the Company or the Purchaser (or any Affiliate of
either of them) relating to any of those things.
"INDEPENDENT ACCOUNTANT" under clause 5.8 means an accountant nominated
by the President of the Institute of Chartered Accountants in Australia
at the request of a Principal Party, or any other person who is agreed
in writing by the Principal Parties.
"INFORMATION MEMORANDUM" means the information memorandum dated March
2000 relating to the Business.
"INTELLECTUAL PROPERTY UMBRELLA DEED" means a deed in the Agreed Form
that is conditional only on Completion between the Vendor, Goodman
Fielder and the Purchaser under which:
(a) the Vendor and Goodman Fielder agree to endeavour to transfer
certain interests of the Vendor and Goodman Fielder in certain
Co-operative Research Centres to the Purchaser; and
(b) Goodman Fielder agrees to execute, and procure that each
relevant GF Group entity executes, on Completion the GF
Intellectual Property Transfer Deeds and the Trade Mark Licence
Deed.
"INVENTION" means each of the inventions the subject of one or more of
the Patents.
"LAST PERIOD" means the period from 1 July 2007 to the 7th anniversary
of Completion.
"LOSS" means, in relation to any person, a damage, loss, cost, expense
or liability suffered or incurred by that person.
"MATERIAL ADVERSE CHANGE" means any event (whether considered in
isolation or viewed collectively with other events) which occurs between
execution of this agreement and Completion which results in a $10
million or greater diminution in the consolidated net assets of the
Bodies Corporate (considered collectively) as referenced against the net
asset position shown in the Accounts Date Net Asset Statement, but
excludes anything:
(a) disclosed in a Disclosure;
(b) known by (or ought reasonably to be known by) any Purchaser
Entity from any source, including its due diligence
investigations and knowledge of the industry sector in which the
Business operates;
(c) which, no later than 4pm (Sydney time) on the Business Day which
is 3 Business Days prior to the date of execution of this
agreement, is revealed in any information made available to the
public by any of the following Government Authorities in
Australia or New Zealand:
(i) the Australian Securities Commission and the New Zealand
Companies Office;
(ii) the Australian Stock Exchange and the New Zealand Stock
Exchange;
7.
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(iii) IP Australia and the Intellectual Property Office of New
Zealand;
(iv) the New South Wales Land Titles Office and the New
Zealand Land Titles Office; and
(v) local councils in Australia and regional and district
councils in New Zealand with authority over any
Property;
(d) which in substance involves the Purchaser having an opinion
different from the Vendor as to the valuation of any asset of
the Bodies Corporate as shown in the Accounts Date Net Asset
Statement;
(e) which is able to be recovered by the Purchaser or a Body
Corporate from any third party in accordance with clause 6.5 or
in any other manner including:
(i) amounts for which it is able to claim a Tax deduction,
rebate or credit; and
(ii) amounts which it is able to recover from an insurer;
(f) arising out of something consented to by the Purchaser under
clause 3; or
(g) attributable to the acts or omissions of, or on behalf of, a
Purchaser Entity.
"NZ EMPLOYEE" means any person employed as at Completion by the
Subsidiary.
"PATENTS" means the patents and patent applications (and any patents
granted as a result of those applications) set out in schedule 9 or any
one of them or any combination of them, and all patents applied for
anywhere after the Completion Date which are based on or derived from
any of such patents or patent applications or any Improvements.
"PAYMENT THRESHOLD" means:
(a) for the First Period, $7.8 million divided by 365 multiplied by
the number of days in the First Period;
(b) for each financial year from 1 July 2001 to 30 June 2007, $7.8
million; and
(c) for the Last Period, $7.8 million divided by 365 multiplied by
the number of days in the Last Period.
"PENFORD CORPORATION" means Penford Corporation, a corporation duly
incorporated in the State of Washington, United States of America of 777
108th Avenue, NE Suite 2390, Bellevue, Washington, 98004, USA.
"PERIOD" means a period of 7 years commencing on the Completion Date and
terminating on the 7th anniversary of the Completion Date.
"POLLUTION" means the release, emission or discharge into the
Environment of a substance which directly or indirectly causes or has
the potential to cause damage or harm to any aspect of the Environment,
and includes:
(a) pollution of air;
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(b) pollution of waters;
(c) offensive noise; and
(d) pollution of land.
"PRINCIPAL PARTIES" means the Vendor and the Purchaser.
"PREFERRED SUPPLIER DEED" means a deed in the Agreed Form between the
Company and Goodman Fielder for the supply of products by the Company to
GF Group entities after Completion.
"PRODUCT" means each Hi-maize Product, Bevtech Product and Culture-Pro.
"PRODUCT SALES" means gross receipts (excluding GST or any similar Tax
applying to the sale of goods) from all sales of Products by a Body
Corporate or any Affiliate of a Body Corporate anywhere in the world
excluding Excluded Product Sales.
"PROPERTY" means in relation to any of the Bodies Corporate, the
interests in real property which are held or attributable to the Body
Corporate as noted in schedule 8.
"PURCHASER'S AUDITORS" means Ernst & Young, LLP (with assistance from
the Melbourne office of Ernst & Young, Australia).
"PURCHASER ENTITY" means any of the Purchaser, a related body corporate
of the Purchaser, and a director, officer, employee or representative of
or adviser to the Purchaser or such related body corporate.
"PURCHASE PRICE" means $98 million (exclusive of GST) (less the Company
Debt) as adjusted under either clause 5 or clause 10.3 or both.
"PURCHASER'S WARRANTIES" means the representations and warranties in
schedule 5.
"RAW MATERIALS" means all materials purchased by a Body Corporate for
the Business in respect of which no fabricating or processing or other
work has been carried out by the Vendor, Goodman Fielder or a Body
Corporate (whether or not those materials are in a raw or processed
form) and includes:
(a) component parts, raw materials, the Vendor and packaging
purchased from third parties; and
(b) indirect materials used generally in the Business and not
forming or intended to form part of a finished product.
"ROYALTY PAYMENT" means, in relation to a Calculation Period, 0.05 x
(the value of Product Sales in that Calculation Period less the Payment
Threshold).
"SHARES" means the 2 fully paid ordinary shares in the Company owned by
the Vendor.
"SHELL DEPOT" means the land sold by The Shell Company of Australia
Limited to Geo. Fielder & Company Limited under a contract for sale of
land dated 28 May 1969, which was disclosed to the Purchaser Entity in
the Disclosures.
9.
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"SPECIFICATIONS" has the same meaning as in the Hi-maize Access Deed.
"STOCK" means the Raw Materials, work-in-progress and finished stock
used or to be used or sold in connection with or as part of the Business
wherever located.
"SUBSIDIARY" means Starch New Zealand Limited.
"SUPPLY AGREEMENT" means an agreement in the Agreed Form for the supply
of each of the following specified goods between the Company and the
specified parties:
(a) glucose, syrup solids and unmodified maize starch - The Uncle
Tobys Company Limited ABN 76 000 008 962;
(b) wheat flour and gluten - Goodman Fielder Mills Limited ABN 24
000 008 739; and
(c) gluten - Quality Bakers Australia Limited ABN 45 004 205 449.
"TAX" means any income tax, GST (or other goods and services tax),
capital gains tax, superannuation guarantee charge, recoupment tax, land
tax, sales tax, payroll tax, fringe benefit tax, group tax, profit tax,
interest tax, property tax, undistributed profits tax, withholding tax,
municipal rates, stamp duties and other duties, charges, levies and
impositions, assessed or charged, or assessable or chargeable, by or
payable to any governmental taxation or excise authority (in Australia,
New Zealand or elsewhere) and includes any additional tax, interest,
penalty, charge, fine, fee or other amount imposed or made on or in
relation to a failure to file a relevant return or to pay the relevant
tax.
"TOTAL PURCHASE PRICE" means the Purchase Price plus all the Royalty
Payments.
"TRADE MARK LICENCE DEED" means the deed referred to in clause 2(c) of
the Intellectual Property Umbrella Deed to license the Purchaser to use
certain trade marks of GF Group members.
"TRANSITIONAL SERVICES AGREEMENT" means an agreement in the Agreed Form
between the Company and GF Group Services Pty Limited ABN 22 003 889 996
for the supply by the GF Group of certain services after Completion.
"UMBRELLA GUARANTEE AND INDEMNITY" means an agreement in the Agreed Form
between Penford Corporation, the Vendor, Goodman Fielder, GF Australia
Limited, Goodman Fielder Mills Limited, Quality Bakers Australia Limited
and The Uncle Tobys Company Limited under which Penford Corporation
guarantees to the other parties to that agreement the obligations of the
Company and the Purchaser under this agreement and (conditional only on
Completion) the other Ancillary Agreements.
"VENDOR'S AUDITORS" means the Sydney office of Ernst & Young, Australia.
"VENDOR'S WARRANTY" means each representation and warranty in schedule
6.
1.2 OTHER DEFINITIONS
Certain terms are defined in the remaining clauses of this agreement and
(without limitation) clause 1.3(i) applies to those definitions.
10.
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1.3 RULES FOR INTERPRETING THIS AGREEMENT
The following rules apply in interpreting this agreement, except where
the context makes it clear that a rule is not intended to apply:
(a) headings are for convenience of reference only and do not affect
interpretation;
(b) a reference to:
(i) legislation (including subordinate legislation) is to
that legislation as amended, re-enacted or replaced, and
includes any subordinate legislation issued under it;
(ii) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision
as amended, supplemented, replaced or novated;
(iii) a party to this agreement or to any other document or
agreement includes a permitted substitute or a permitted
assign of that party; and
(iv) a person includes any type of entity or body of persons,
whether or not it is incorporated or has a separate
legal identity, and any executor, administrator or
successor in law of the person.
(c) a word denoting the singular number includes the plural number
and vice versa;
(d) if an example is given of anything (including a right,
obligation or concept), such as by saying that it includes
something else, the example does not limit the scope of that
thing;
(e) a word denoting a gender includes all genders;
(f) a reference to a recital, clause, schedule or annexure is to a
recital, clause, schedule or annexure of or to this agreement;
(g) if a word is defined, another part of speech has a corresponding
meaning;
(h) the word "AGREEMENT" includes an undertaking or other binding
arrangement or understanding, whether or not in writing;
(i) where an expression is defined anywhere in this agreement, it
has the same meaning throughout;
(j) a reference to a "RELATED BODY CORPORATE" of a body corporate is
to a body corporate which is related to it under section 50 of
the Corporations Law as in force at the date of this agreement;
(k) a reference to a "SUBSIDIARY" of a body corporate is to:
(i) a body corporate which is a subsidiary of it under
section 46 of the Corporations Law as in force at the
date of this agreement;
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(ii) a corporation which is a subsidiary of another
corporation if that other corporation has appointed or
is in a position to appoint a director or directors who
are in a position to cast, or control the casting of,
more than one half of the maximum number of votes that
might be cast at a meeting of the board of directors of
the first mentioned corporation;
(l) a reference to "DOLLARS" or "$" is to an amount in Australian
currency.
1.4 BUSINESS DAYS
If the day on or by which a person must do something under this
agreement is not a Business Day:
(a) if the act involves a payment that is due on demand, the person
must do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day.
1.5 PAYMENTS
Any payment required to be made by a Principal Party to the other under
this agreement must be made in cash, by telegraphic transfer of cleared
funds, or by unendorsed bank cheque.
1.6 VENDOR'S KNOWLEDGE
In this agreement, a reference to the Vendor's knowledge means the
actual knowledge of:
(a) the managing director, finance director and company secretary of
the Vendor;
(b) each director and company secretary of the Bodies Corporate;
(c) the general manager, operations manager and senior finance
executive of each of the Bodies Corporate; and
(d) Brian Nicholson and Dr Ian Brown,
such persons having caused reasonable enquiries to be made of relevant
officers and employees of the Vendor and the Bodies Corporate.
2. AGREEMENT TO SELL AND BUY THE SHARES
2.1 SALE AND PURCHASE
Subject to clauses 2.3 and 2.4, the Vendor as legal and beneficial owner
agrees to sell to the Purchaser and the Purchaser agrees to buy from the
Vendor the Shares (together with all benefits, rights and entitlements
accrued or attaching to the Shares as at Completion) free from any
security or third party interest for the Total Purchase Price and
otherwise on the terms and conditions of this agreement.
2.2 TITLE, PROPERTY AND RISK
The title to, property in and risk of the Shares:
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(a) until Completion, remains solely with the Vendor; and
(b) on and from Completion, passes to the Purchaser.
2.3 FIRB APPROVAL
(a) Clause 2 (other than this clause 2.3) of this agreement is
conditional on approval being given by, or on behalf of, the
Treasurer of the Commonwealth of Australia under the Foreign
Acquisitions and Takeovers Act 1975 to the acquisition of the
Shares by the Purchaser, either unconditionally, or subject to
conditions or requirements which are acceptable to the
Purchaser.
(b) The Purchaser must promptly make and pursue an application to
the Foreign Investment Review Board on behalf of the Federal
Treasurer for the approval referred to in clause 2.3(a) and must
keep the Vendor informed of its efforts to obtain that approval.
The Vendor must, if requested by the Purchaser, provide all
reasonable assistance to enable the Purchaser to obtain that
approval.
(c) For the purposes of clause 2.3(a), the Federal Treasurer will be
deemed to have approved the acquisition of the Shares by the
Purchaser:
(i) if a notice is issued under the Foreign Acquisitions and
Takeovers Act 1975 stating that the Commonwealth
Government does not object to the acquisition of the
Shares; or
(ii) if notice of the proposed acquisition of the Shares is
given to the Foreign Investment Review Board on behalf
of the Federal Treasurer under the Foreign Acquisitions
and Takeovers Act 1975 and the Treasurer is, by lapse of
time, not empowered to make an order under the Foreign
Acquisitions and Takeovers Act 1975 in relation to the
acquisition of the Shares.
(d) The Purchaser must use its reasonable endeavours to fulfil the
condition set out in clause 2.3(a).
2.4 MATERIAL ADVERSE CHANGE
(a) Completion is conditional on there being no Material Adverse
Change between execution of this agreement and Completion.
(b) The Purchaser may elect by written notice to the Vendor to
terminate this agreement without liability if a Material Adverse
Change occurs between execution of this agreement and
Completion.
(c) The benefit of the condition in clause 2.4(a) is solely for the
Purchaser. The Purchaser may waive the condition in its
discretion or subject to such conditions as it considers
appropriate, however if the Vendor rejects any such conditions
(which it may do in its absolute discretion) clause 2.4(b) is
deemed to apply.
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3. CONDUCT PENDING COMPLETION
3.1 ORDINARY COURSE OF BUSINESS
Except with the consent of the Purchaser (which the Purchaser may not
unreasonably withhold or delay), between execution of this agreement and
Completion the Vendor must procure that the Bodies Corporate:
(a) operate the Business in its ordinary course and on a basis
consistent with its operation prior to execution of this
agreement;
(b) do not materially increase the total number of employees of the
Bodies Corporate;
(c) do not enter any new contract with a term greater than 1 year or
incur expenditure in excess of $50,000 that is not currently
budgeted for or anticipated in the Disclosures; and
(d) do not do any act or execute any agreement or other instrument
which will or might reasonably be expected to amount to a breach
of any Warranty.
3.2 PRE-COMPLETION/COMPLETION TRANSACTIONS
Prior to or at Completion:
(a) the Purchaser and the Vendor must enter, and procure that the
Company enters, into any transaction necessary to ensure that
neither Goodman Fielder nor any GF Group member (except a Body
Corporate) has any liability after Completion under:
(i) the BNP Facility; and
(ii) the guarantee (the "BNP GUARANTEE") provided by Goodman
Fielder to BNP Pacific (Australia) Limited in respect of
the BNP Facility,
except for any breach of the BNP Facility or the BNP Guarantee
which has not been disclosed to the Purchaser Entity prior to
execution of this agreement;
(b) subject to compliance by the Vendor with all applicable laws,
the Vendor may effect transactions with the Bodies Corporate so
that the Bodies Corporate have no cash at bank as at Completion,
including transactions by way of dividend or repayment of any
financial accommodation referred to in paragraph (c);
(c) the Vendor must procure that:
(i) any guarantee provided by a GF Group entity except a
Body Corporate in respect of an obligation of a Body
Corporate is released;
(ii) any credit card or purchase card of a GF Group entity
except a Body Corporate used by a Body Corporate is
cancelled;
(iii) the Company is removed from the offset arrangement
between Goodman Fielder and Westpac Banking Corporation
Limited in respect of GF Group entity bank accounts; and
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(iv) the Company is removed from any GF Group GST grouping
arrangement; and
(d) the Vendor must notify the Purchaser of the amount of the
Company Debt on the Business Day immediately before the
Completion Date.
3.3 PURCHASER ENTITIES' ACCESS PRIOR TO COMPLETION
Until Completion the Vendor must:
(a) ensure the Bodies Corporate permit certain Purchaser Entities,
being:
(i) Ernst & Young LLP;
(ii) Ernst & Young Australia, Melbourne office;
(iii) Jeffrey Cook;
(iv) Keith Fujinaga;
(v) Sue Iverson;
(vi) Paige Irving (Assistant Corporate Controller);
(vii) Greg Horn (General Manager of Penford's Foods Division);
(viii) Wally Kunerth (Chief Science Officer);
(ix) Mike Patrick (Vice-President Operations of Penford's
Foods Division); and
(x) Chuck Duthler (Director of Environmental Health &
Safety),
to have reasonable access during normal business hours to the
Businesses including the premises on which the Businesses are
conducted, any information in relation to the Businesses (except
where to do so would prejudice any legal professional privilege
which may attach to the information or disrupt the Businesses)
and any personnel employed or engaged in the Businesses; and
(b) allow the Purchaser or:
(i) Ernst & Young LLP;
(ii) Ernst & Young Australia, Melbourne office;
(iii) Jeffrey Cook;
(iv) Keith Fujinaga;
(v) Sue Iverson; and
(vi) Paige Irving (Assistant Corporate Controller),
to consult the Vendor's Auditors with respect to the Bodies
Corporate as the Purchaser reasonably requires,
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<PAGE> 21
as long as such persons do not unreasonably interfere with the
ordinary and proper conduct of the Businesses.
3.4 INSURANCE COVER
Until Completion the Vendor will maintain its existing insurance
coverage in respect of the Bodies Corporate (as disclosed to the
Purchaser Entity prior to execution of this agreement) and, to the
extent that any Claim is made against any insurance policy in respect of
any Loss suffered or incurred by the Bodies Corporate, the Vendor will
cause the proceeds of any such insurance claim to be:
(a) paid to the relevant Body Corporate; or
(b) if the Loss arises out of an asset that has been damaged or
destroyed, used to replace or repair the relevant asset.
4. COMPLETION
4.1 TIME AND PLACE OF COMPLETION
Subject to clauses 2.3 and 2.4, Completion is to occur on the Completion
Date at 8.00am at the offices of Blake Dawson Waldron, Sydney or at any
other time or place agreed by the Principal Parties.
4.2 OBLIGATIONS OF THE VENDOR AT COMPLETION
At Completion the Vendor must:
(a) deliver or cause to be delivered to the Purchaser:
(i) the share certificates in respect of the Shares and the
shares held by the Company in the Subsidiary;
(ii) an instrument of transfer of the Shares in favour of the
Purchaser or its nominee which has been duly executed in
blank by the holder and is in registrable form;
(iii) the certificate of incorporation of each Body Corporate
(and any certificate of incorporation on change of name
of any Body Corporate);
(iv) any common seal (and any duplicate common seal, share
seal or official seal) of each Body Corporate, if
available;
(v) all available original copies of the constitution of
each Body Corporate;
(vi) the books of account of each Body Corporate (which are
deemed to be delivered at the premises at which they are
held);
(vii) the minute books and other records of meetings or
resolutions of members and directors of each Body
Corporate;
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(viii) all registers of each Body Corporate (including the
register of members, register of options, register of
directors, registers of directors' shareholdings,
register of directors' interests, and register of
charges);
(ix) a duly completed authority for the alteration of the
signatories of each bank account of each Body Corporate
in the manner required by the Purchaser by notice before
the Completion Date;
(x) the written resignations of each director, secretary,
auditor and public officer of each Body Corporate in
accordance with clause 4.2(b);
(xi) one original counterpart of each Ancillary Agreement
duly executed by any person who is, before Completion, a
member of the GF Group (other than any Ancillary
Agreement that before Completion has been so executed
and provided to the Purchaser); and
(xii) evidence of the resolution referred to in clause
4.3(c)(ii);
(b) procure that duly convened meetings of the directors of each
Body Corporate (as appropriate) are held and procure at those
meetings:
(i) for the Company only, the approval of the registration
and the registration (subject to payment of stamp duty)
of the transfer of the Shares and the issue of a new
share certificate for the Shares in name of the
transferee;
(ii) the appointment as additional directors, secretaries,
auditor and public officers of the Body Corporate of the
persons nominated by the Purchaser by notice to the
Vendor before the Completion Date (and in the case of
the Subsidiary, procure the Company to give notice in
writing to the Subsidiary appointing as directors of the
Subsidiary the persons nominated by the Purchaser);
(iii) the retirement of each existing director, secretary,
auditor and public officer of the Body Corporate with
effect from the end of that meeting;
(iv) the revocation of all existing authorities to operate
bank accounts; and
(v) the transaction of any other business relevant to
Completion of which the Purchaser may give reasonable
notice to the Vendor prior to the Completion Date; and
(c) procure that a special resolution in writing in accordance with
section 122 of the Companies Act 1993 (New Zealand) be passed
which approves (with effect from the conclusion of Completion)
the replacement of the Subsidiary's existing constitution with a
new constitution in the form proposed by the Purchaser.
4.3 OBLIGATIONS OF PURCHASER AT COMPLETION
At Completion the Purchaser must:
(a) subject to receipt by the Purchaser of the Vendors certification
under clause 3.2(d), pay all the Purchase Price to the Vendor in
respect of the Shares;
17.
<PAGE> 23
(b) cause sufficient consents to act to be available to allow each
Body Corporate to pass the resolutions required by clause
4.2(b)(ii);
(c) cause to be lodged with the Australian Securities and
Investments Commission:
(i) a notice of disposal (in the standard Australian
Securities and Investments Commission form); and
(ii) notice of a resolution of the board of Goodman Fielder
(evidence of which is to be provided by Goodman Fielder)
that the sale transaction contemplated by this agreement
is approved,
to remove the Company from the deed of cross guarantee entered
into by the Company and other GF Group entities pursuant to ASIC
Class Order 98/1418;
(d) deliver one original counterpart of each Ancillary Agreement to
which the Purchaser or any person other than a member of the GF
Group is a party, duly executed by that party (including each
Car Lease Novation Deed duly executed by Lease Plan Australia
Limited) to the Vendor (other than any Ancillary Agreement that
before Completion has been so executed and provided to the
Vendor);
(e) subject to receipt by the Purchaser of the Vendor's
certification under clause 3.2(d), discharge the Company Debt by
giving a bank cheque for the amount of the Company Debt to
Goodman Fielder;
(f) the Purchaser must ensure that as at Completion, arrangements
are in place so that the transactional bank accounts of the
Bodies Corporate are not in default once the GF Group guarantees
referred to in clause 3.2(c)(i) are revoked; and
(g) do and execute all other acts and documents which this agreement
requires the Purchaser to do or execute at Completion.
4.4 PURCHASER'S OBLIGATION TO REGISTER
The Purchaser must ensure that registration of the transfer of the
Shares takes place as soon as practicable after Completion.
4.5 VENDOR'S OBLIGATIONS UNTIL REGISTRATION
After Completion until the Shares are registered in the name of the
Purchaser or any nominee, the Vendor must convene and attend general
meetings of the Company, vote at those meetings and take all other
action as registered holder of the Shares in relation to the Company as
the Purchaser may lawfully require from time to time by notice to the
Vendor.
5. POST COMPLETION ADJUSTMENT
5.1 STOCKTAKE
(a) The Vendor must arrange for a physical stocktake of the Stock to
be carried out not more than 2 Business Days before the
Completion Date.
(b) The Stock must be valued on the basis of the principles in
schedule 1.
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(c) The Vendor must ensure that the Purchaser and the Purchaser's
Auditors are given unrestricted access during normal business
hours (and subject to usual security and safety requirements) to
observe the stocktake.
5.2 PREPARATION AND DELIVERY OF COMPLETION DATE NET ASSET STATEMENT
The Vendor must prepare the Completion Date Net Asset Statement in the
format of the Accounts Date Net Asset Statement, and deliver it to the
Purchaser as soon as practicable after, but no later than 30 Business
Days after, Completion.
5.3 AGREED ACCOUNTING PRINCIPLES
The Completion Date Net Asset Statement must be prepared and audited in
accordance with the Agreed Accounting Principles.
5.4 PREPARATION AND DELIVERY OF THE CERTIFICATE
The Vendor must procure that the Vendor's Auditors audit the Completion
Date Net Asset Statement for the purpose of preparing the Certificate.
The Certificate may only be subject to the qualifications set out in
schedule 4 and such other qualifications as may be agreed between the
Principal Parties in writing. The Vendor must deliver the Certificate to
the Purchaser with the Completion Date Net Asset Statement.
5.5 WORKING PAPERS
Promptly after delivery of the Certificate, the Vendor must procure that
the Vendor's Auditors provide access to a copy of the working papers of
their audit of the Completion Date Net Asset Statement to the
Purchaser's Auditors, and that the Vendor's Auditors are available at
all reasonable times before the Acceptance Notification Date (as defined
in clause 5.7(a)) to discuss the audit and the working papers with the
Purchaser's Auditors.
5.6 ACCESS AND CO-OPERATION
After Completion, the Purchaser must provide the Vendor and the Vendor's
Auditors with all necessary assistance and information, including giving
access during normal business hours to all books and records of the
Bodies Corporate, and making available the services of senior executives
and staff of any of the Bodies Corporate, to enable the Vendor to
prepare and the Vendor's Auditors to audit the Completion Date Net Asset
Statement.
5.7 ACCEPTANCE OF COMPLETION DATE NET ASSET STATEMENT
(a) Each Principal Party must notify the other whether or not it
accepts the Completion Date Net Asset Statement and the
Certificate on or before the date (the "ACCEPTANCE NOTIFICATION
DATE") which is 10 Business Days after the date on which the
Completion Date Net Asset Statement is delivered to the
Purchaser. If a Principal Party does not accept any item set out
in the Completion Date Net Asset Statement, it must give the
other Principal Party full details of its reasons in its notice.
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(b) If:
(i) a Principal Party does not give notice to the other in
accordance with clause 5.7(a); or
(ii) the aggregate value of all items not accepted by a
Principal Party does not exceed $250,000.00,
the Principal Party is taken to have accepted the Completion
Date Net Asset Statement and Certificate.
(c) If a Principal Party advises the other that it does not accept
the Completion Date Net Asset Statement and clause 5.7(b)(ii)
does not apply, the Principal Parties must use their reasonable
endeavours to agree to amendments to the Completion Date Net
Asset Statement. If they are unable to agree on the amendments
within 10 Business Days after the Acceptance Notification Date,
clause 5.8 applies.
5.8 RESOLVING DISPUTE OVER THE RESULTS OF COMPLETION DATE NET ASSET
STATEMENT
If the Principal Parties are unable to agree to amendments to the
Completion Date Net Asset Statement under clause 5.7(c), the
disagreement must be referred to the Independent Accountant as an expert
for determination (and not for arbitration) and:
(a) the Independent Accountant must be required to make the
determination within 15 Business Days after being engaged;
(b) the Principal Parties must promptly execute whatever reasonable
terms of engagement the Independent Accountant requires
(including any indemnity);
(c) the Principal Parties may make submissions to the Independent
Accountant within 2 Business Days of the engagement;
(d) the Purchaser must provide the Independent Accountant with
access during normal business hours to the books and records of
the Bodies Corporate;
(e) each Principal Party must provide all such assistance as it is
able to provide as reasonably requested by the Independent
Accountant;
(f) the determination made by the Independent Accountant is final
and binding on the Principal Parties and the Completion Date Net
Asset Statement and Certificate are taken to be amended
accordingly and accepted on the date of the determination; and
(g) the Principal Parties must equally bear the costs of the
Independent Accountant in making the determination.
5.9 ADJUSTMENT
If the amount of net assets shown in the Completion Date Net Asset
Statement is:
(a) greater than the amount of net assets shown in the Accounts Date
Net Asset Statement, the difference must be paid by the
Purchaser to the Vendor; and
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(b) less than the amount of net assets shown in the Accounts Date
Net Asset Statement, the difference must be paid by the Vendor
to the Purchaser,
together with interest at the rate of 8% per annum on the difference
(calculated from the Completion Date) within 2 Business Days of the date
that the Completion Date Net Asset Statement is accepted or taken to be
accepted by the Principal Parties.
5.10 POST COMPLETION AUDITS
For the purpose of assisting the Purchaser to comply with any financial
reporting obligations to which it may be subject in any jurisdiction
(including the United States of America), for a period of 6 months after
Completion with respect to the Bodies Corporate, the Vendor must
provide, at the Purchaser's cost, the Purchaser and the Purchaser's
Auditors with all necessary reasonable assistance and information,
including giving access to and making available during normal business
hours the services of senior executives and staff of any of the GF Group
who, by reason of their past involvement with the Bodies Corporate, may
reasonably be able to assist the Purchaser in complying with any such
reporting obligations.
5.11 ENTITLEMENT TO ROYALTY PAYMENTS
If the amount of Product Sales for a Calculation Period exceeds the
Payment Threshold, the Vendor is entitled to receive from the Purchaser,
and the Purchaser must pay the Vendor, the Royalty Payment for that
Calculation Period.
5.12 DUE DATE FOR ROYALTY PAYMENTS
(a) Subject to clauses 5.12(b) and 5.12(c), the Royalty Payment is
due on 30 June in each year of the Term and payable by 30
September of that year.
(b) The Royalty Payment for the First Period will be payable by 30
September 2001.
(c) The Royalty Payment for the Last Period will be payable within
90 days after the 7th anniversary of Completion.
5.13 STATEMENT TO BE PROVIDED WITH EACH ROYALTY PAYMENT
With each Royalty Payment, the Purchaser must provide a statement
certified by the Purchaser's auditors of Product Sales for the
Calculation Period in respect of which the Royalty Payment is paid. The
statement must itemise each element of Product Sales as per the
definition of that term in clause 1.1 and the date and amount of each
sale by each Body Corporate and each Affiliate as per clause 5.14.
5.14 DATE AND VALUE OF SALES FOR CALCULATION OF ROYALTY PAYMENTS
For the purposes of this agreement (except where a sale or supply is an
Excluded Product Sale):
(a) a sale of a Product is taken to have occurred upon the earlier
of the receipt by a Body Corporate or an Affiliate of a Body
Corporate of payment for that Product, or the date of invoice
for that Product;
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(b) in respect of a Product for which no payment is charged, a sale
is taken to have occurred on the date of supply of that Product,
such sale being deemed to be at a price that, in the reasonable
opinion of the Vendor, the Product would have been sold if the
sale had been an arms length transaction conducted on commercial
terms; and
(c) all foreign currency denominated Product Sales must be
translated into Australian dollars at an exchange rate
determined in accordance with generally accepted accounting
practices including the application of AASB 1012.
5.15 RECORDS OF INFORMATION IN RELATION TO ROYALTY PAYMENTS
The Purchaser must keep at its principal trading office in Australia,
records and books of account relating to sales of Products giving true
and clear particulars for the calculation of Royalty Payments and must
at the reasonable request of the Vendor from time to time produce a
certificate by the Purchaser's auditors as to the truth and completeness
of those records and books of account.
5.16 ACCESS AND CO-OPERATION IN RELATION TO ROYALTY PAYMENTS
During, and for a period of 6 months after, the Period, the Purchaser
must provide the Vendor and the Vendor's auditors and accountants with
all necessary assistance and information, including giving access during
normal business hours to all books and records of the Bodies Corporate
and Affiliates of the Bodies Corporate, and making available the
services of senior executives and staff of any of the Bodies Corporate
and Affiliates of the Bodies Corporate, to enable the Vendor to confirm
that:
(a) the Product Sales are correctly identified and recorded; and
(b) any Royalty Payment has been correctly calculated.
5.17 PURCHASER'S ACKNOWLEDGMENT
The Purchaser acknowledges the obligations of the the Purchaser and the
Company provided for in clause 7 of the Hi-maize Access Deed. The
Purchaser must procure that the Company complies with those obligations.
The Purchaser's obligations under this clause 5.17 continue
notwithstanding Completion.
6. WARRANTIES AND INDEMNITY BY VENDOR
6.1 VENDOR'S WARRANTIES
In consideration of the Purchaser entering into this agreement, subject
to the other provisions of this agreement, the Vendor represents and
warrants to the Purchaser both at the date of this agreement and at the
Completion Date (except that where a Vendor's Warranty expressly refers
to only one of those dates, that Vendor's Warranty is given only as at
that date) that each of the Vendor's Warranties is true and accurate in
all material respects by reference to the facts and circumstances
applying at the relevant date. The Purchaser has entered into this
agreement in reliance on the Vendor's Warranties.
22.
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6.2 VENDOR'S WARRANTY INDEMNITY
Subject to clauses 6.3 and 10, the Vendor indemnifies the Purchaser
against any Loss of the Purchaser to the extent that the Loss arises
from any breach of any Vendor's Warranty.
6.3 EXCEPTIONS AND QUALIFICATIONS
(a) The Vendor is not liable, and the Purchaser must not make a
Claim against the Vendor, for any breach of a Vendor's Warranty
or under the indemnity in clause 6.2:
(i) (DISCLOSURES) if anything to the contrary is:
(A) disclosed in a Disclosure;
(B) known by (or ought reasonably to be known by)
any Purchaser Entity from any source, including
its due diligence investigations and knowledge
of the industry sector in which the Business
operates; or
(C) no later than 4pm (Sydney time) on the Business
Day which is 3 Business Days prior to the date
of execution of this agreement, revealed in any
information made available to the public by any
of the following Government Authorities in
Australia or New Zealand:
(I) the Australian Securities Commission and
the New Zealand Companies Office;
(II) the Australian Stock Exchange and the
New Zealand Stock Exchange;
(III) IP Australia and the Intellectual
Property Office of New Zealand;
(IV) the New South Wales Land Titles Office
and the New Zealand Land Titles Office;
and
(V) local councils in Australia and regional
and district councils in New Zealand
with authority over any Property;
(ii) (TIME LIMIT) unless the Purchaser notifies the Vendor in
writing of the Claim, giving all particulars of the
Claim which are then known to the Purchaser, within 3
months after becoming aware of facts giving rise to the
Claim and in any event by 31 December 2001;
(iii) (MINIMUM AMOUNT) unless that Claim is for an amount
assessed by the Purchaser in good faith to be at least
$250,000;
(iv) (AGGREGATE MINIMUM AMOUNT) unless the aggregate of all
Claims for breach of Vendor's Warranties and under the
indemnities in clauses 7.2 and 8.2 is for an amount
assessed by the Purchaser in good faith to be at
23.
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least $1 million and when the aggregate of all such
Claims exceeds $1 million they may be recovered by the
Purchaser in their entirety and not just in respect of
the excess above $1 million;
(v) (MAXIMUM LIABILITY) to the extent that that Claim, if
successful, would result in the aggregate liability of
the Vendor or Goodman Fielder for all Claims previously
made by the Purchaser or the Company under this
agreement and the GF Intellectual Property Transfer
Deeds exceeding half the Purchase Price (assuming all
such previous Claims which have not yet been satisfied
are successful);
(vi) (OTHER DAMAGES) to the extent that the Claim is for any
indirect damages, consequential loss, economic loss, or
loss of profits or punitive damages, however arising
provided that a direct diminution in the value of the
Shares or the Company's shares in the Subsidiary will
not be so considered;
(vii) (LIABILITY OTHERWISE COMPENSATED FOR) to the extent that
an amount or Loss in respect of which the Claim is
connected has or may be recovered by the Purchaser or a
Body Corporate from any third party in accordance with
clause 6.5 or in any other manner including:
(A) amounts for which it is able to claim a Tax
deduction, rebate or credit;
(B) amounts provided for in the Purchase Price
adjustment referred to in clause 5; and
(C) amounts which it is able to recover from an
insurer,
although the Purchaser may include its (or the Body
Corporate's) reasonable recovery costs in its Claim;
(viii) (CONSENT BY PURCHASER) arising out of something
consented to by the Purchaser under clause 3;
(ix) (ACTS OF PURCHASER) to the extent that the Claim is
attributable to the acts or omissions of, or on behalf
of, a Purchaser Entity;
(x) (CHANGE IN OWNERSHIP) once the share, asset or Business
to which a Claim relates ceases to be controlled by the
Purchaser;
(xi) (THIRD PARTY CLAIMS) if there is an actual or potential
third party Claim (as defined in clause 6.5(a)) in
respect of the Claim and the Purchaser does not comply
with clause 6.5 in all material respects in relation to
the third party Claim; and
(xii) (TAX OR ENVIRONMENTAL INDEMNITY) to the extent that the
substance of the Claim is covered by the Vendor's
indemnity in clause 7.2 or clause 8.2.
(b) (NO DUTY) The Vendor has no duty to disclose any information
(including without limitation any fact, matter or circumstance)
by reference to a specific Vendor's Warranty and the Purchaser
must rely on its own due diligence
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investigations to determine how any Disclosure may qualify the
Vendor's Warranties.
(c) (TRADE PRACTICES ACT) To the fullest extent permitted by law,
the Purchaser irrevocably waives any right it may have to make a
Claim in respect of any contravention of sections 51A, 52 or 53
of the Trade Practices Act 1974 (Cth) or corresponding State or
Territory or New Zealand legislation in respect of any
statement, representation, conduct or omission by or on behalf
of the Vendor or Goodman Fielder which is not expressly
contained in this agreement and indemnifies the Vendor against
any Loss of the Purchaser to the extent that the Loss arises
from the Purchaser making such a Claim.
(d) (NO RESCISSION OR TERMINATION) The Purchaser waives any right it
would otherwise have to rescind, terminate or refuse to Complete
this agreement because of any Vendor's Warranty being untrue or
inaccurate. This clause 6.3(d) does not limit the other remedies
which the Purchaser has (including a Claim for damages) if any
Vendor's Warranty is untrue or inaccurate.
(e) (EXCLUSIONS) Without limiting clause 6.3(f), the Vendor makes no
representations or warranties in relation to (including without
limitation, about the accuracy, completeness or truth of):
(i) any estimates, projections, forecasts, plans, budgets or
other forward-looking statements, whether in relation to
financial matters or anything else; (ii) any
Environmental Aspect except for warranties 9.4 to 9.9 in
schedule 6; or
(iii) the Disclosures, except as expressly set out in this
agreement.
(f) (NO OTHER WARRANTIES) The Vendor makes no warranties or
representations (express or implied) other than the Vendor's
Warranties.
6.4 PURCHASER'S ACKNOWLEDGMENTS
The Purchaser acknowledges that the Purchaser has had adequate
opportunity to:
(a) conduct due diligence investigations;
(b) undertake, and the Vendor has co-operated with the Purchaser in
undertaking, the investigations that the Purchaser has decided,
in its absolute discretion, to undertake in relation to
Environmental Aspects concerning the Property and the Bodies
Corporate and their Businesses;
(c) obtain independent legal, financial and technical advice in
respect of the purchase of the Shares, the Businesses and the
terms of this agreement, the Ancillary Agreements and related
documents; and
(d) satisfy itself in relation to matters arising from those
investigations and advice.
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6.5 THIRD PARTY CLAIMS
(a) (NOTIFICATION) The Purchaser must notify the Vendor of:
(i) any actual or potential Claim for breach of a Vendor's
Warranty arising as a result of any Claim by a third
party against the Purchaser or a Body Corporate; and
(ii) any actual or potential Claim which the Purchaser or a
Body Corporate may have against a third party for
recovery of a Loss which gives rise to a Claim against
the Vendor for breach of a Vendor's Warranty,
as soon as reasonably practicable after the Purchaser or the
Body Corporate becomes aware of the Claim by or against the
third party (a "THIRD PARTY CLAIM").
(b) (CONSULTATION) Promptly and before taking any action (including
making any admission) in respect of a third party Claim, the
Purchaser must consult, and procure the relevant Body Corporate
to consult, with the Vendor to ascertain what Disputing Action
in respect of the third party Claim, if any, is reasonable and
appropriate.
(c) (DISPUTING ACTION BY VENDOR) If required by the Vendor by notice
to the Purchaser, the Purchaser must and must procure the Body
Corporate to:
(i) subject to clause 6.5(d), provide reasonable assistance
to the Vendor to place itself in a position, and allow
the Vendor, to take Disputing Action on behalf of (and
in the name of) the Purchaser and the Body Corporate in
respect of the third party Claim; and
(ii) provide reasonable assistance to the Vendor as the
Vendor may reasonably require in order to do so,
including giving the Vendor access during normal
business hours to the books and records and relevant
Purchaser Entities.
(d) (PURCHASER CONSENT) The Vendor must not take any Disputing
Action in respect of a third party Claim without the consent of
the Purchaser. The Purchaser's consent must not be unreasonably
refused or delayed. The Purchaser must notify the Vendor of its
reasons for any refusal to consent. In determining whether the
Purchaser is reasonably refusing its consent, regard must be had
to any proposal made by the Vendor to address the Purchaser's
reasons.
(e) (COSTS) The costs of any Disputing Action in respect of a third
party Claim incurred by the Vendor (on its own behalf or on
behalf of the Purchaser or a Body Corporate) must be borne by
the Vendor. The reasonable costs of the Purchaser in complying
with clause 6.5(c) must be paid by the Vendor on demand by the
Purchaser.
(f) (NO DISPUTING ACTION BY VENDOR) If the Vendor does not give a
notice to the Purchaser under clause 6.5(c) within 10 Business
Days after the Purchaser's notice under clause 6.5(a), the
Purchaser is free to take such action as it sees fit (consistent
with its obligations to mitigate its Loss under clause 10).
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(g) (MITIGATION GENERALLY) This clause 6.5 does not limit clause 10,
and clause 10 prevails if there is any inconsistency.
6.6 CONTINUING WARRANTIES
The Vendor's Warranties are continuing warranties and do not merge on
Completion. They remain in full force and effect notwithstanding
Completion until the end of the period specified in clause 6.3(a)(ii).
6.7 WAIVER OF RIGHTS BY VENDOR
In respect of the Purchaser (for itself and as trustee for each of the
Bodies Corporate and their respective officers, employees and advisers),
the Vendor irrevocably waives any rights which it may have had for any
misrepresentation or inaccuracy in, or omission of, any information or
advice supplied by any of the Bodies Corporate or their respective
officers, employees and advisers and relied upon by the Vendor in giving
any Vendor's Warranty.
6.8 DISCLOSURE OF BREACH OF VENDOR'S WARRANTY
Pending Completion the Vendor must immediately notify the Purchaser of
anything which may arise or become known to the Vendor which is or could
reasonably be expected to amount to:
(a) a breach of, or an inconsistency with, any Vendor's Warranty
(subject to clause 6.3); or
(b) a Material Adverse Change.
7. TAXATION INDEMNITY
7.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
"ASSESSMENT" means any assessment, penalty, fine, demand or other
document imposing, asserting or indicating an intention to assert any
liability issued by a Taxation Authority in respect of Tax of a Body
Corporate or of the Purchaser in relation to a Body Corporate.
"RELEVANT RATE" means:
(a) for Australian resident companies, the rate of tax payable by
Australian resident companies on taxable income; and
(b) for New Zealand resident companies, the rate of tax payable by
New Zealand resident companies on taxable income.
"REPAYMENT" means an amount that a Taxable Entity receives from a
Taxation Authority in respect of a payment made to the Taxation
Authority.
"TAXABLE ENTITY" means any of the Purchaser and each of the Bodies
Corporate.
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"TAXATION AUTHORITY" means any authority in Australia, New Zealand or
elsewhere which raises, levies or assesses any Tax.
"TAX LIABILITY" means any amounts payable by either or both of a Body
Corporate and the Purchaser in respect of any Assessment.
7.2 VENDOR'S TAX INDEMNITY
Subject to clauses 7.3 and 10, the Vendor indemnifies the Purchaser
against any Tax Liability where the Tax Liability arises (in whole or in
part, and if in part, to the extent that it arises):
(a) as a result of an event or omission which occurred on or before
Completion;
(b) as a result of or by reference to any income, profits or gains
earned, accrued or received on or before Completion;
(c) from the disallowance of an income tax deduction claimed before
Completion for any expenses, losses or other outgoings incurred
on or before Completion; or
(d) from the disallowance of a Tax credit or rebate of Tax, such as
a dividend rebate, claimed before Completion relating to a
matter referred to in paragraph (a), (b) or (c).
7.3 EXCEPTIONS AND QUALIFICATIONS
The Vendor is not liable, and the Purchaser must not make a Claim
against the Vendor, under the indemnity in clause 7.2:
(a) (DISCLOSURES) if the Tax Liability is:
(i) disclosed in a Disclosure, including where the Tax
Liability is provided for in the Accounts; or
(ii) known by (or ought reasonably to be known by) any
Purchaser Entity from any source, including its due
diligence investigations and knowledge of the industry
sector in which the Business operates;
(b) (COMPLIANCE WITH OBLIGATIONS) unless the Purchaser complies with
its obligations under this clause 7 in all material respects;
(c) (TIME LIMIT) unless the Purchaser notifies the Vendor in writing
of the Claim within 5 years after Completion;
(d) (CHANGE IN LAW) to the extent that the Claim arises from:
(i) any amendment to any legislation or legislative
provision;
(ii) any ruling of any Taxation Authority;
(iii) any change in the practice of any relevant Taxation
Authority; or
(iv) any variation in the rate of Tax charged, levied or
imposed,
28.
<PAGE> 34
which occurs after Completion (even if it purports to have
retrospective effect);
(e) (DISPUTING ACTION) if the Purchaser does not comply with clause
7.5 in all material respects in relation to the Assessment; and
(f) (OTHER) as stated in clause 6.3(a)(iii), (v), (vi), (vii), (ix)
and (x) (the wording of such paragraphs being deemed to be
repeated in this clause 7.3).
7.4 REPAYMENT
Where:
(a) a payment has been made by the Vendor under the indemnity in
clause 7.2; and
(b) the Taxable Entity receives a Repayment directly related to the
payment referred to in clause 7.4(a),
the Taxable Entity must within 10 Business Days after receipt, cause an
amount to be restored to the Vendor calculated as follows:
A = R - (I x T)
Where:
A is the amount to be restored to the Vendor;
R is the amount of the Repayment;
I is the amount of the component of the Repayment that is interest on
overpaid Tax; and
T is the Taxable Entity's Relevant Rate (expressed as a decimal number).
7.5 DISPUTING ACTION RE ASSESSMENT
(a) (NOTIFICATION) The Purchaser must notify the Vendor if a Taxable
Entity receives any Assessment to which the indemnity in clause
7.2 may apply, giving all particulars of the Assessment which
are then known to the Taxable Entity (including a copy of any
relevant Assessment or other correspondence from or to a Tax
Authority) within 10 Business Days of receipt of the Assessment.
(b) (CONSULTATION) Promptly and before taking any action (including
making any admission) in respect of the Assessment, the
Purchaser must notify, and procure the relevant Taxable Entity
to notify, the Vendor to ascertain what Disputing Action in
respect of the Assessment, if any, is reasonable and
appropriate.
(c) (DISPUTING ACTION BY VENDOR) If required by the Vendor by notice
to the Purchaser, the Purchaser must and must procure the
Taxable Entity to:
(i) subject to clause 7.5(d), provide reasonable assistance
to the Vendor to place itself in a position, and allow
the Vendor, to take Disputing Action on behalf of (and
in the name of) the Taxable Entity in respect of the
Assessment; and
29.
<PAGE> 35
(ii) provide reasonable assistance to the Vendor as the
Vendor may reasonably require in order to do so,
including by giving the Vendor access during normal
business hours to the books and records of the Taxable
Entity and relevant Purchaser Entities.
(d) (PURCHASER CONSENT) The Vendor must not take any Disputing
Action in respect of an Assessment without the consent of the
Purchaser. The Purchaser's consent must not be unreasonably
refused or delayed. The Purchaser must notify the Vendor of its
reasons for any refusal to consent. In determining whether the
Purchaser is reasonably refusing its consent, regard must be had
to any proposal made by the Vendor to address the Purchaser's
reasons.
(e) (COSTS) The costs of any Disputing Action in respect of an
Assessment incurred by the Vendor (on its own behalf or on
behalf of the Purchaser or the Taxable Entity) must be borne by
the Vendor. The reasonable costs of the Purchaser in complying
with clause 7.5(c) must be paid by the Vendor on demand by the
Purchaser.
(f) (NO DISPUTING ACTION BY VENDOR) If the Vendor does not give a
notice to the Purchaser under clause 7.5(c) within 10 Business
Days after the Purchaser's notice under clause 7.5(a), the
Purchaser is free to take such action as it sees fit (consistent
with its obligations to mitigate its Loss under clause 10).
(g) (MITIGATION GENERALLY) This clause 7.5 does not limit clause 10,
and clause 10 prevails if there is any inconsistency.
7.6 TAXATION RETURNS AND CORRESPONDENCE
The Purchaser must ensure that any Taxation return prepared by or on
behalf of any Taxable Entity after the Completion Date, and any
communication with a Taxation Authority, that relates in whole or in
part to a period prior to Completion is prepared and made:
(a) with due care, skill and diligence; and
(b) in consultation with the Vendor and with the Vendor's consent
(which consent must not be unreasonably refused or delayed) to
the extent that the Taxation return or correspondence contains
information relating to the period prior to Completion and the
Vendor will, to the extent it is able, provide or cause to be
provided, assistance to the Purchaser with respect to the
preparation of any such Taxation return at the Purchaser's cost.
7.7 TAXATION AUDITS
(a) The Principal Parties must co-operate and give each other all
reasonable assistance that they are able to provide in
connection with any Tax audit of a Taxable Entity after
Completion which relates to any period before Completion.
(b) The Vendor must pay on demand by the Purchaser all reasonable
costs of the Purchaser or any Taxable Entity in connection with
that part of the reasonable audit costs associated with any
period before Completion.
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7.8 REPAYMENTS OR OVERPROVISIONS
If a Body Corporate receives a Repayment which relates to a period prior
to Completion the Purchaser must, within 10 Business Days of such
receipt pay to the Vendor an amount calculated in accordance with clause
7.4 (in each case less any amount owing by the Vendor to the Purchaser
in respect of the indemnity in clause 7.2).
8. ENVIRONMENTAL INDEMNITY
8.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
"ENVIRONMENTAL ISSUE" has the meaning given to that term in clause
8.3(a).
"INDEPENDENT EXPERT" means, a person agreed to in writing by the
Principal Parties, or failing agreement, an accredited site auditor
(contaminated land) under the Contaminated Land Management Act 1997
(NSW) appointed by the President of the Australian Contaminated Land
Consultants Association Inc at the request of a Principal Party.
"PLAN OF WORK" means the plan provided by the Vendor under clause 8.5(b)
consented to or taken to be consented to by the Purchaser.
"REMEDIATION REQUIREMENT" means:
(a) any legally enforceable written direction or order imposed on a
Body Corporate under any Environmental Law; or
(b) any requirement lawfully imposed by a Government Authority on a
Body Corporate as a condition of any consent, licence or
authority reasonably required by a Body Corporate for the
continuing conduct of its business as it is conducted at the
date of this agreement,
that requires the clean up or remediation of Contamination or Pollution
on or from the Properties.
"WORKS" means any works which result from an Environmental Issue.
8.2 VENDOR'S ENVIRONMENTAL INDEMNITY
Subject to clauses 8.3, 8.4 and 10, the Vendor indemnifies the Purchaser
(for itself and as trustee for each of the Bodies Corporate) against any
Loss of the Purchaser or any of the Bodies Corporate arising out of:
(a) any Environmental Claim or Remediation Requirement caused by an
Environmental Aspect which occurred prior to Completion other
than a matter referred to in paragraph (c);
(b) any breach of any of warranties 9.4 to 9.9 in schedule 6 (the
"ENVIRONMENTAL WARRANTIES"); and
(c) any Environmental Claim or Remediation Requirement caused by
leaking, prior to Completion, of underground storage tanks at
the Shell Depot.
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8.3 EXCEPTIONS AND QUALIFICATIONS - GENERALLY
The Vendor is not liable, and the Purchaser must not make a Claim
against the Vendor, under the indemnity in clause 8.2(a) or clause
8.2(b):
(a) (DISCLOSURES) if the circumstances which may give rise to the
Environmental Claim, Remediation Requirement or the breach of
the Environmental Warranties (an "ENVIRONMENTAL ISSUE") are:
(i) specifically disclosed in a Disclosure;
(ii) known by (or ought reasonably to be known by) any
Purchaser Entity from any source, including its due
diligence investigations and knowledge of the industry
sector in which the Business operates; or
(iii) no later than 4pm (Sydney time) on the Business Day
which is 3 Business Days prior to the date of execution
of this agreement, revealed in any information made
available to the public by any of the following
Government Authorities in Australia or New Zealand:
(A) the New South Wales Land Titles Office and the
New Zealand Land Titles Office; and
(B) local councils in Australia and regional and
district councils in New Zealand with authority
over any Property;
(b) (BUDGETED EXPENSES) to the extent that any Works to rectify
Environmental Issues are included in a Body Corporate's budget
(as disclosed in the Disclosures) for a period which expires
after Completion;
(c) (PLAN OF WORK) to the extent that the Works performed or to be
performed pursuant to a Plan of Work have rectified or will
rectify the Environmental Issue in all substantial respects;
(d) (COMPLIANCE WITH OBLIGATIONS) unless the Purchaser complies with
its obligations under this clause 8 in all material respects;
(e) (TIME LIMIT) unless the Purchaser notifies the Vendor in writing
of the Claim within 4 years after Completion;
(f) (CHANGE IN LAW) if the Environmental Issue results from a change
in the law after Completion (even if it purports to have
retrospective effect); and
(g) (OTHER) as stated in clause 6.3(a)(iii), (v), (vi), (vii), (ix),
(x) and (xi) (the wording of such paragraphs being deemed to be
repeated in this clause 8.3).
8.4 EXCEPTIONS AND QUALIFICATIONS - SHELL DEPOT
The Vendor is not liable, and the Purchaser must not make a Claim
against the Vendor, under the indemnity in clause 8.2(c):
(a) (BUDGETED EXPENSES) to the extent that any Works to rectify
Environmental Issues are included in a Body Corporate's budget
(as set out in the document with
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barcode MAR.0033.281 disclosed in the Disclosures) for a period
which expires after Completion;
(b) (PLAN OF WORK) to the extent that the Works performed or to be
performed pursuant to a Plan of Work have rectified or will
rectify the Environmental Issue in all substantial respects;
(c) (COMPLIANCE WITH OBLIGATIONS) unless the Purchaser complies with
its obligations under this clause 8 in all material respects;
(d) (CHANGE IN LAW) if the Environmental Issue results from a change
in the law after Completion (even if it purports to have
retrospective effect);
(e) (MAXIMUM LIABILITY) to the extent that the Claim, if successful,
would result in the aggregate liability of the Vendor for all
Claims previously made by the Purchaser under the indemnity in
clause 8.2(c) exceeding $8 million (assuming that all such
previous Claims which have not been satisfied are successful);
and
(f) (OTHER) as stated in clause 6.3(a)(v), (vi), (vii), (ix), (x)
and (xi) (the wording of such paragraphs being deemed to be
repeated in this clause 8.4).
8.5 PLAN OF WORK
(a) The Purchaser must notify the Vendor if the Purchaser or a Body
Corporate becomes aware of any circumstance to which the
indemnity in clause 8.2 may apply as soon as reasonably
practicable after becoming so aware.
(b) The Vendor may (subject to clause 8.7) within 2 months of
receipt of the Purchaser's notice under clause 8.5(a) provide to
the Purchaser a plan outlining Works proposed by the Vendor to
address the Environmental Issue and the method and timing of the
proposed Works.
(c) Within 15 Business Days after receipt of the Vendor's plan (the
"CONSENT NOTIFICATION DATE"), the Purchaser must notify the
Vendor whether or not the Purchaser consents to the Vendor's
plan (which consent must not be unreasonably refused).
(d) If the Purchaser does not consent to the Vendor's plan, the
Principal Parties must use their reasonable endeavours to agree
to amendments to the plan. If they are unable to agree on the
amendments within 10 Business Days after the Consent
Notification Date, clause 8.6 applies.
8.6 EXPERT DETERMINATION
If the Principal Parties are unable to agree to amendments to the
Vendor's plan under clause 8.5(d), the dispute must be referred to the
Independent Expert as an expert for determination (and not for
arbitration) and:
(a) the Independent Expert must be required to make the
determination within 15 Business Days after being engaged;
(b) the Principal Parties must promptly execute whatever reasonable
terms of engagement the Independent Expert requires (including
any indemnity);
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(c) the Principal Parties may make submissions to the Independent
Expert within 2 Business Days of the engagement;
(d) the Purchaser must provide the Independent Expert with full
access during normal business hours to the relevant Property and
the books and records of the relevant Body Corporate and
relevant Purchaser Entities;
(e) each Principal Party must provide all such assistance as it is
able to provide as reasonably requested by the Independent
Expert;
(f) the determination made by the Independent Expert is final and
binding on the Principal Parties and the Vendor's plan is taken
to be amended accordingly and consented to by the Purchaser; and
(g) the Principal Parties must equally bear the costs of the
Independent Expert in making the determination.
8.7 DISPUTING ACTION RE ENVIRONMENTAL ISSUE
(a) (CONSULTATION) Promptly and before taking any action (including
making any admission) in respect of an Environmental Issue, the
Purchaser must consult, and procure the relevant Body Corporate
to consult with, the Vendor to ascertain what Disputing Action
in respect of the Environmental Issue, if any, is reasonable and
appropriate.
(b) (DISPUTING ACTION BY VENDOR) If required by the Vendor by notice
to the Purchaser, the Purchaser must and must procure the
relevant Body Corporate to:
(i) subject to clause 8.7(c), provide reasonable assistance
to the Vendor to place itself in a position, and allow
the Vendor, to take Disputing Action on behalf of (and
in the name of) the Purchaser and the relevant Body
Corporate in respect of the Environmental Issue; and
(ii) provide reasonable assistance to assist the Vendor as
the Vendor may reasonably require in order to do so,
including by giving the Vendor access during normal
business hours to the relevant Property, the books and
records of the Purchaser and the relevant Body Corporate
and relevant Purchaser Entities.
(c) (PURCHASER CONSENT) The Vendor must not take any Disputing
Action in respect of an Environmental Issue without the consent
of the Purchaser. The Purchaser's consent must not be
unreasonably refused or delayed. The Purchaser must notify the
Vendor of its reasons for any refusal to consent. In determining
whether the Purchaser is reasonably refusing its consent, regard
must be had to any proposal made by the Vendor to address the
Purchaser's reasons.
(d) (COSTS) The costs of any Disputing Action in respect of an
Environmental Issue incurred by the Vendor (on its own behalf or
on behalf of the Purchaser or the relevant Body Corporate) must
be borne by the Vendor. The reasonable costs of the Purchaser in
complying with clause 8.5(b) must be paid by the Vendor on
demand by the Purchaser.
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(e) (NO DISPUTING ACTION BY VENDOR) If the Vendor does not give a
notice to the Purchaser under clause 8.7(b) within 20 Business
Days after the Purchaser's notice under clause 8.5(a), clause
8.5(b) applies.
(f) (EXTENSION FOR VENDOR'S PLAN) If the Vendor gives a notice to
the Purchaser under clause 8.7(b) within 20 Business Days after
the Purchaser's notice under clause 8.5(a), the period specified
in clause 8.5(b) within which the Vendor may provide to the
Purchaser the plan of the proposed Works commences upon the
conclusion or abandonment by the Vendor of any Disputing Action.
8.8 CARRYING OUT THE PLAN OF WORK
(a) (COMMISSIONING OF WORKS) The Vendor must commission the Works
set out in the Plan of Work on behalf of, and as agent for, the
Purchaser. The Vendor must bear the cost of the Works, and the
amount of such costs shall be taken to be a liability of the
Vendor for the purposes of clause 6.3(a)(v) or clause 8.4(e) (as
the case may be).
(b) (COMPLIANCE WITH PLAN OF WORKS) The Vendor must undertake or
cause to be undertaken, and the Purchaser must supervise, the
Works specified in the Plan of Work materially in accordance
with the method and timing set out in the Plan of Work.
(c) (REPORTING TO VENDOR) The Purchaser must report to and consult
with the Vendor weekly on the progress of the Plan of Work.
(d) (PROPER WORKMANSHIP) The Vendor is responsible for ensuring that
the Plan of Work is carried out to a good and proper standard of
workmanship.
(e) (ASSISTANCE TO VENDOR) The Purchaser grants and must procure
that the relevant Body Corporate grants to the Vendor and anyone
acting on its behalf:
(i) a licence to enter upon the relevant Property;
(ii) reasonable access to any Purchaser Entity engaged in the
Plan of Work; and
(iii) reasonable access to any information, document, record
or plan relevant to the Plan of Work,
in order to do anything required or permitted pursuant to this
clause 8, and must ensure that the Purchaser Entities co-operate
with the Vendor and give the Vendor all reasonable assistance in
this regard.
(f) (DISRUPTION) The Purchaser acknowledges that the Works under the
Plan of Work may cause some inconvenience to and disruption of a
Body Corporate's activities on the relevant Property, but the
Vendor is not liable to the Purchaser or the relevant Body
Corporate for any Claim arising out of any such inconvenience or
disruption. The Purchaser must execute, and procure the relevant
Body Corporate to execute, any waiver, release or indemnity
reasonably requested by the Vendor to confirm that the Vendor is
not so liable.
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8.9 PURCHASER'S MITIGATION OF ENVIRONMENTAL EXPENSES
(a) The Purchaser must take, and must ensure that each Purchaser
Entity takes, all reasonable steps necessary to avoid an
Environmental Issue arising.
(b) Without limiting clause 8.9(a), the Purchaser must not and must
ensure that the Company, the Subsidiary and any Purchaser Entity
do not request, procure or seek to procure an Environmental
Issue or increase or exacerbate the scope of the Works to be
carried out as a result of an Environmental Issue.
(c) The Purchaser must consult with the Vendor and obtain the
Vendor's consent (which consent must not be unreasonably refused
or delayed) in relation to any communication with an authority
in relation to any Environmental Aspect.
(d) This clause 8.9 does not limit clause 10, and clause 10 prevails
if there is any inconsistency.
9. WARRANTIES AND INDEMNITY BY PURCHASER
9.1 PURCHASER'S WARRANTIES
In consideration of the Vendor entering into this agreement, the
Purchaser represents and warrants to the Vendor both at the date of this
agreement and at the Completion Date (except that where a Purchaser's
Warranty refers to only one of those dates, that Purchaser's Warranty is
given only as at that date) that each of the Purchaser's Warranties is
true and accurate in all material respects by reference to the facts and
circumstances applying at the relevant date.
9.2 PURCHASER'S INDEMNITY
Subject to clause 10, the Purchaser indemnifies and agrees to keep
indemnified the Vendor against:
(a) (PURCHASER'S WARRANTIES) any Loss of the Vendor to the extent
that the Loss arises from any breach of any of the Purchaser's
Warranties; and
(b) (ENVIRONMENTAL CLAIM) any Environmental Claim caused by an
Environmental Aspect that occurs after Completion.
10. LOSSES AND CLAIMS
10.1 MITIGATION
A party (the "INDEMNIFIED PARTY") indemnified under clause 6.2, 7.2, 8.2
or 9.2 or any other indemnity in this agreement (an "INDEMNITY CLAUSE")
must mitigate in accordance with general law any Loss to which the
Indemnity Clause applies. If the Indemnified Party mitigates its Loss
after the other party (the "INDEMNIFIER") has paid the Indemnified Party
under the Indemnity Clause in respect of that Loss, the Indemnified
Party must notify the Indemnifier and account to the Indemnifier to the
extent of the value of the benefit to the Indemnified Party of that
mitigation (less the Indemnified Party's reasonable costs of mitigation)
within 2 Business Days after the benefit is received.
36.
<PAGE> 42
10.2 INDEMNITY TAX EFFECT
(a) In addition to any amount payable under an Indemnity Clause (an
"INDEMNITY AMOUNT"), the Indemnifier must pay to the Indemnified
Party on demand an additional amount in respect of, or as a
result of, the Indemnified Party's receipt or derivation of an
Indemnity Amount which places the Indemnified Party in the
position it would have been in had the Loss not been incurred
and had the Indemnity Amount not been received or derived. In
calculating this additional amount, the Indemnifier and the
Indemnified Party must take into account any Tax assessable upon
or payable by the Indemnified Party and any Tax deduction,
rebate or credit which the Indemnified Party may claim.
(b) If the Indemnified Party is entitled to an input tax credit or
other credit in respect of a cost or expense recoverable under
the Indemnity Clause, the amount recoverable under the Indemnity
Clause does not include the amount of that input tax credit or
other credit.
10.3 PAYMENT AND TREATMENT OF CLAIMS AGAINST VENDOR
Any amount paid by the Vendor to the Purchaser under any of clauses 6.2
or 7.2 must be treated for all purposes by the Principal Parties as a
reduction in the Purchase Price.
10.4 OPERATION OF INDEMNITIES
Each indemnity in this agreement survives the expiry or termination of
this agreement.
10.5 CLAIM UNDER ANCILLARY AGREEMENT
If any of the Purchaser, a Body Corporate or a related body corporate of
the Purchaser (the "PURCHASER'S GROUP") is entitled to make a Claim in
respect of a matter against any of the Vendor or Goodman Fielder under
this agreement or the GF Intellectual Property Transfer Deeds or any
number of them, the Purchaser must ensure that the Purchaser's Group
collectively makes only one Claim in respect of the matter. In any
event, the Vendor is not liable under this agreement in respect of the
matter if and to the extent that any member of the Purchaser's Group has
already Claimed in respect of the matter under this agreement or the GF
Intellectual Property Transfer Deeds.
11. AUSTRALIAN SUPERANNUATION
11.1 DEFINITIONS
In this agreement, including the recitals, unless the context otherwise
requires:
"COMPLYING SUPERANNUATION FUND" has the meaning given in the Income Tax
Assessment Act 1936 (Cth).
"PURCHASER'S FUND" means a Complying Superannuation Fund that is
identified by the Purchaser for membership by the Employees under clause
11.3.
"REGULATOR" means the Australian Securities and Investments Commission
and the Australian Prudential Regulatory Authority.
37.
<PAGE> 43
"SUPERANNUATION COMMITMENT" means any legal liability (whether arising
under an industrial instrument or otherwise) to make contributions to
any superannuation or retirement fund, pension scheme or other
arrangement which provides employees or their dependants with
superannuation or retirement benefits.
"TRANSFER AMOUNT" means the accrued benefit entitlements of an Employee
who is a member of the Vendor's Fund calculated as at the Completion
Date on the basis that the Company has ceased to be an "Associated
Employer", and adjusted for any positive or negative earnings from the
Completion Date to the Transfer Date, in accordance with the governing
rules of the Vendor's Fund.
"TRANSFER DATE" means the date of the transfer of the Transfer Amount
from the Vendor's Fund.
"VENDOR'S FUND" means the Goodman Fielder Superannuation Fund
established by the trust deed dated 26 June 1961 (as amended).
11.2 OBJECT OF CLAUSE 11
The parties intend that, subject to any necessary approvals by the
trustee of the Vendor's Fund and the trustee of the Purchaser's Fund:
(a) until the Completion Date, the Company will continue to
contribute and participate in the Vendor's Fund as an
"Associated Employer" under the governing rules of that fund;
(b) on the Completion Date, the Company will cease to be an
"Associated Employer" under the governing rules of the Vendor's
Fund;
(c) on the Transfer Date, each Employee who is a member of the
Vendor's Fund will cease to be a member of the Vendor's Fund;
and
(d) on the Transfer Date, a Transfer Amount in respect of each
Employee who is a member of the Vendor's Fund will be paid by
the trustee of the Vendor's Fund in accordance with the
governing rules of that fund to the trustee of the Purchaser's
Fund.
11.3 THE COMPANY TO CEASE PARTICIPATING IN THE VENDOR'S FUND
The Vendor must use its reasonable endeavours to ensure that the Company
ceases participating in the Vendor's Fund as "Associated Employers"
under the governing rules of that fund effective from the Completion
Date.
11.4 PURCHASER'S FUND
The Purchaser must, within 90 days after execution of this agreement,
identify a Complying Superannuation Fund for membership by the Employees
who are members of the Vendor's Fund which will provide benefits in
respect of each such Employee from the Completion Date.
38.
<PAGE> 44
11.5 MEMBERSHIP OF THE PURCHASER'S FUND
The Purchaser must offer each Employee who is a member of the Vendor's
Fund membership of the Purchaser's Fund within 90 days after execution
of this agreement.
11.6 CALCULATION OF TRANSFER AMOUNT
In relation to each Employee who is a member of the Vendor's Fund, as
soon as practicable after the Completion Date, the Vendor must use its
reasonable endeavours to procure the trustee of the Vendor's Fund to
calculate the Transfer Amount of that Employee in accordance with the
governing rules of the Vendor's Fund.
11.7 OBTAINING CONSENT TO TRANSFER
In relation to each Employee who is a member of the Vendor's Fund, as
soon as practicable after the Completion Date, the Purchaser must use
its reasonable endeavours to procure the Employee's consent to transfer
his or her Transfer Amount to the Purchaser's Fund.
11.8 CONSENTED TRANSFER TO PURCHASER'S FUND
The Vendor must use its reasonable endeavours to procure the trustee of
the Vendor's Fund to transfer to the trustee of the Purchaser's Fund the
Transfer Amount of each Employee who has consented to transfer his or
her Transfer Amount to the Purchaser's Fund.
11.9 TRANSFER TO OTHER SUPERANNUATION ARRANGEMENTS
In relation to an Employee who is a member of the Vendor's Fund but has
not consented to transfer his or her Transfer Amount to the Purchaser's
Fund, the Vendor will use its reasonable endeavours to procure the
trustee of the Vendor's Fund to transfer the Employee's Transfer Amount
to any other superannuation arrangement in accordance with the governing
rules of the Vendor's Fund.
11.10 PURCHASER MUST ENSURE MEMBERSHIP IN PURCHASER'S FUND
The Purchaser must use its reasonable endeavours to procure the trustee
of the Purchaser's Fund to accept the Transfer Amounts into the
Purchaser's Fund in respect of the Employees who have consented to the
transfer.
11.11 TRANSFER AMOUNT TO BE PAID IN CHEQUE OR CASH
The Transfer Amount must be paid by bank cheque or cash unless the
trustee of the Vendor's Fund and the trustee of the Purchaser's Fund
agree that other assets will be transferred.
11.12 ACCESS TO RECORDS
The Vendor must give, and must use its reasonable endeavours to procure
that the trustee of the Vendor's Fund gives, the Purchaser and the
trustee of the Purchaser's Fund access during normal business hours to
the records of the Vendor's Fund which they may reasonably require in
order for the Purchaser and the trustee of the Purchaser's Fund to take
over responsibility and the administration of the of the superannuation
39.
<PAGE> 45
arrangements in respect of the Employees who have consented as
contemplated by clause 11.7.
11.13 PURCHASER'S CONTRIBUTIONS
The Purchaser must ensure that either the Purchaser or the Company
contributes from the Completion Date to the Purchaser's Fund or other
nominated superannuation arrangement in respect of each Employee at the
rate at which the Company was contributing to the Vendor's Fund
immediately before the Completion Date.
12. NEW ZEALAND SUPERANNUATION
12.1 DEFINITIONS
In this agreement, including the recitals, unless the context otherwise
requires:
"EFFECTIVE DATE" means the date upon which the Subsidiary ceases to be a
"Participating Company" in the NZ Fund as a result of the Vendor's
notice given pursuant to clause 12.3.
"NZ TRANSFER AMOUNT" means the accrued benefit entitlements of a NZ
Employee who is a member of the NZ Fund calculated as at the Effective
Date on the basis that the Subsidiary has ceased to be a "Participating
Company" in the NZ Fund as at that date, and adjusted for any positive
or negative earnings from the Effective Date to the NZ Transfer Date, in
accordance with the governing rules of the NZ Fund.
"NZ TRANSFER DATE" means the date of the transfer of the NZ Transfer
Amount from the NZ Fund.
"NZ FUND" means the Goodman Fielder (NZ) Retirement Plan established by
the trust deed dated 19 October 1971.
"PURCHASER'S NZ FUND" means a Registered Superannuation Scheme that is
identified by the Purchaser for membership by the NZ Employees under
clause 12.3.
"REGISTERED SUPERANNUATION SCHEME" has the meaning given in the
Superannuation Schemes Act 1989 (NZ).
12.2 OBJECT OF CLAUSE 12
The parties intend that, subject to any necessary approvals by the
trustee of the NZ Fund and the trustee of the Purchaser's NZ Fund:
(a) until the Effective Date, the Subsidiary will continue to
contribute and participate in the NZ Fund as a "Participating
Company" under the governing rules of that fund;
(b) on the Purchaser notifying its own Registered Superannuation
Scheme (no later than 90 days after the execution of this
agreement) the Vendor will procure that notice is given to the
trustee of the NZ Fund that the Subsidiary will cease to be a
"Participating Company" under the governing rules of the NZ
Fund;
40.
<PAGE> 46
(c) on the NZ Transfer Date, each NZ Employee who is a member of the
NZ Fund will cease to be a member of the NZ Fund; and
(d) on the NZ Transfer Date, a NZ Transfer Amount in respect of each
NZ Employee who is a member of the NZ Fund, will be paid by the
trustee of the NZ Fund in accordance with the governing rules of
that fund to the trustee of the Purchaser's NZ Fund (subject to
the consent of each NZ Employee).
12.3 THE SUBSIDIARY TO CEASE PARTICIPATING IN THE VENDOR'S NZ FUND
On the Purchaser satisfying its obligations under clause 12.4, the
Vendor must procure that notice is given to the trustee of the NZ Fund
that the Subsidiary will cease to participate in the Vendor's NZ Fund as
a "Participating Company" under the governing rules of that fund
effective from the Effective Date. The Vendor will procure that the
notice is given in accordance with the relevant rules governing the NZ
Fund.
12.4 PURCHASER'S NZ FUND
The Purchaser must, as soon as reasonably practicable but no later than
90 days after the execution of this agreement, identify a Registered
Superannuation Scheme for membership by the NZ Employees who are members
of the NZ Fund which will provide benefits in respect of each such NZ
Employee from the Completion Date.
12.5 MEMBERSHIP OF THE PURCHASER'S NZ FUND
The Purchaser must offer each NZ Employee who is a member of the NZ Fund
membership of the Purchaser's NZ Fund on and from the Effective Date.
12.6 CALCULATION OF NZ TRANSFER AMOUNT
In relation to each NZ Employee who is a member of the NZ Fund, the
Vendor must use its reasonable endeavours to procure the trustee of the
NZ Fund to calculate the Transfer Amount of that NZ Employee in
accordance with the governing rules of the NZ Fund.
12.7 OBTAINING CONSENT TO TRANSFER
In relation to each NZ Employee who is a member of the NZ Fund, as soon
as practicable after the Completion Date, the Purchaser must use its
reasonable endeavours to procure the NZ Employee's consent to transfer
his or her NZ Transfer Amount to the Purchaser's NZ Fund.
12.8 CONSENTED TRANSFER TO PURCHASER'S NZ FUND
The Vendor must use its reasonable endeavours to procure the trustee of
the NZ Fund to transfer to the trustee of the Purchaser's NZ Fund the NZ
Transfer Amount of each NZ Employee who has consented to transfer his or
her NZ Transfer Amount to the Purchaser's NZ Fund.
12.9 TRANSFER TO OTHER SUPERANNUATION ARRANGEMENTS
In relation to a NZ Employee who is a member of the NZ Fund but has not
consented to transfer his or her NZ Transfer Amount to the Purchaser's
NZ Fund, the Vendor will use its reasonable endeavours to procure the
trustee of the NZ Fund to transfer the NZ
41.
<PAGE> 47
Employee's NZ Transfer Amount to any other superannuation arrangement in
accordance with the governing rules of the NZ Fund.
12.10 PURCHASER MUST ENSURE MEMBERSHIP IN PURCHASER'S NZ FUND
The Purchaser must use its reasonable endeavours to procure the trustee
of the Purchaser's NZ Fund to accept the NZ Transfer Amounts into the
Purchaser's NZ Fund in respect of the NZ Employees who have consented to
the transfer.
12.11 NZ TRANSFER AMOUNT TO BE PAID IN CHEQUE OR CASH
The NZ Transfer Amount must be paid by cheque or cash unless the trustee
of the NZ Fund and the trustee of the Purchaser's NZ Fund agree that
other assets will be transferred.
12.12 ACCESS TO RECORDS
The Vendor must give, and must use its reasonable endeavours to procure
that the trustee of the NZ Fund gives, the Purchaser and the trustee of
the Purchaser's NZ Fund access during normal business hours to the
records of the NZ Fund which they may reasonably require in order for
the Purchaser and the trustee of the Purchaser's NZ Fund to take over
responsibility and the administration of the superannuation arrangements
in respect of the NZ Employees who have consented as contemplated by
clause 12.7.
12.13 PURCHASER'S CONTRIBUTIONS
The Purchaser must ensure that:
(a) the Subsidiary continues to contribute to the NZ Fund in respect
of each NZ Employee from the Completion Date up to the Effective
Date; and
(b) either the Purchaser or the Subsidiary contributes from the
Effective Date to the Purchaser's NZ Fund or other nominated
superannuation arrangement in respect of each NZ Employee in
accordance with the terms of membership of the Purchaser's NZ
Fund or other nominated superannuation arrangements accepted by
each NZ Employee.
13. RESTRAINT
13.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
"RESTRAINED BUSINESS" means a business of refining raw material to
produce starch and supplying that starch and by-products of the refining
process to third parties in direct competition with a Body Corporate.
"RESTRAINT AREA" means:
(a) any country in which the Bodies Corporate carry on their
Businesses during the year preceding the date of this agreement,
or if that area is decided to be unenforceable, then;
42.
<PAGE> 48
(b) Australia (including the Territory of Christmas Island, Norfolk
Island and the Territory of Cocos (Keeling) Islands but not
including any other external Territory), New Zealand, Japan and
the United States of America, or if that area is decided to be
unenforceable, then;
(c) Australia (including the Territory of Christmas Island, Norfolk
Island and the Territory of Cocos (Keeling) Islands but not
including any other external Territory), New Zealand and Japan,
or if that area is decided to be unenforceable, then;
(d) Australia (including the Territory of Christmas Island, Norfolk
Island and the Territory of Cocos (Keeling) Islands but not
including any other external Territory) and New Zealand.
"RESTRAINT PERIOD" means a period of 3 years from Completion.
13.2 RESTRAINT OBLIGATION
Subject to clause 13.3, the Vendor must not, and must procure that each
of its related bodies corporate does not, during the Restraint Period in
the Restraint Area:
(a) operate (whether on its own account or in partnership or by
joint-venture) a Restrained Business; or
(b) be concerned or interested in (directly or indirectly, or
through any interposed body corporate, trust, principal, agent,
shareholder, beneficiary, or as an independent contractor,
consultant or in any other capacity) a Restrained Business;
(c) seek to or persuade any customer or client of any Body Corporate
to cease doing business with any Body Corporate;
(d) subject to the same exclusions set out in clause 16.13(a) and
16.13(b), disclose to any third party any trade secrets, product
information or information of any Body Corporate that is not
generally known; or
(e) solicit, seek to or induce any person who is, or later becomes,
an employee of the Purchaser or any Body Corporate to terminate
his or her employment.
13.3 PERMITTED INVOLVEMENT
Clause 13.2 does not prevent the Vendor or any of its related bodies
corporate from doing anything referred to in clause 13.2(a) or clause
13.2(b) as a consequence of purchasing any company or business that
operates, or is concerned or interested in, a Restrained Business as an
ancillary part of that company or business, for a transitional period of
12 months after such a purchase.
13.4 REASONABLENESS OF RESTRAINT
The Vendor agrees that each of the restraint obligations imposed by
clause 13.2 is reasonable in its extent (as to duration and restrained
conduct) having regard to the interests of each Principal Party and
extends no further (in any respect) than is reasonably necessary and is
solely to protect the Purchaser.
43.
<PAGE> 49
13.5 SEVERABILITY
(a) Each of the covenants, obligations and restrictions set out in
this clause 13 are:
(i) separate, severable and independent, the validity of
each of which must be considered separately; and
(ii) not true alternatives but cumulative in effect.
(b) If clause 13.2 or any part of it is:
(i) wholly or partly void, invalid, or otherwise
unenforceable; or
(ii) is judged to be beyond what is reasonable in the
circumstances and necessary to protect the goodwill of
the Bodies Corporate;
that clause or part will be deemed eliminated or modified to the
extent necessary to make the balance of this agreement and that
clause or part enforceable or reasonable, as the case may be.
14. TRANSITIONAL SERVICES
The Purchaser acknowledges that, subject to the Transitional Services
Agreement, any service provided before Completion either:
(a) by the Vendor or any of its related bodies corporate to a Body
Corporate; or
(b) by a third party to a Body Corporate under an arrangement that
is not an agreement between that third party and a Body
Corporate,
will not be available to the Purchaser or a Body Corporate from
Completion.
15. NOTICES
15.1 METHOD OF GIVING NOTICES
A notice required or permitted to be given by one party to another under
this agreement must be in writing and is treated as being duly given if
it is:
(a) left at that party's address;
(b) sent by pre-paid mail to that party's address; or
(c) transmitted by facsimile to that party's address.
15.2 TIME OF RECEIPT
A notice given to a party is treated as having been duly given and
received:
(a) when delivered (in the case of it being left at that party's
address);
(b) on the third Business Day after posting (in the case of it being
sent by pre-paid mail); or
44.
<PAGE> 50
(c) on the day of transmission, or the next Business Day after
transmission if the date of transmission is not a Business Day,
in the case of it being given by facsimile and sent to the
facsimile receiver number of that party if no indication is
received that the notice has not been received, whether that
indication comes from that party or from the operation of
facsimile machinery or otherwise.
15.3 ADDRESS OF PARTIES
The address of a party is the address set out below or another address
of which that party may from time to time give notice to each other
party:
THE VENDOR:
Attention: The Company Secretary
Address: Goodman Fielder Ingredients Limited
75 Talavera Road
MACQUARIE PARK NSW 2113
Fax Number: (612) 8874 6099
THE PURCHASER:
Attention: Sue Iverson
Address: c/- Penford Corporation
777 108th Avenue, NE Suite 2390
Bellevue Washington 98004
USA
Fax Number: 1 (425) 462 2819
(copied to Guy Sanderson of Baker & McKenzie
(612) 9223 7711)
16. GENERAL
16.1 GOVERNING LAW
This agreement is governed by the law in force in New South Wales. The
parties submit to the non-exclusive jurisdiction of the courts of New
South Wales and any courts which may hear appeals from those courts in
respect of any proceedings in connection with this agreement.
16.2 WAIVER OF RIGHTS
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) no other conduct of a party (including a failure to exercise, or
delay in exercising, the right) operates as a waiver of the
right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as
a waiver of that right if it arises again; and
45.
<PAGE> 51
(c) the exercise of a right does not prevent any further exercise of
that right or of any other right.
16.3 AMENDMENT
This agreement can only be amended, supplemented, replaced or novated by
another document signed by the parties.
16.4 COUNTERPARTS
This agreement may be executed in any number of counterparts and all of
those counterparts taken together constitute one and the same
instrument.
16.5 FURTHER ASSURANCE
Each party must do, sign, execute and deliver and must procure that each
of its employees and agents does, signs, executes and delivers, all
deeds, documents, instruments and acts reasonably required of it or them
by notice from another party to carry out and give full effect to this
agreement and the rights and obligations of the parties under it.
16.6 OPERATION OF THIS AGREEMENT
(a) This agreement contains the entire agreement between the parties
in respect of its subject matter. Any previous understanding,
agreement, representation or warranty relating to that subject
matter is replaced by this agreement and has no further effect.
(b) Any right that a person may have under this agreement is in
addition to, and does not replace or limit, any other right that
the person may have.
(c) Any provision of this agreement which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent
necessary to make this agreement enforceable, unless this would
materially change the intended effect of this agreement.
16.7 COSTS GENERALLY
Except to the extent specified in clause 16.8 and elsewhere in this
agreement, each party must bear and is responsible for its own costs
(including legal costs) and expenses in connection with the negotiation,
preparation, execution, completion and carrying into effect of this
agreement.
16.8 STAMP DUTY
The Purchaser must bear and is responsible for all stamp duty on or in
respect of:
(a) this agreement;
(b) the instrument of transfer referred to in clause 4.2(a)(ii); and
(c) any instrument or transaction contemplated by this agreement.
46.
<PAGE> 52
16.9 NO MERGER
No provision of this agreement merges on or by virtue of Completion.
16.10 ATTORNEYS
Where this agreement is executed on behalf of a party by an attorney,
that attorney by executing this agreement declares that the attorney has
no notice of the revocation of the power of attorney under the authority
of which the attorney executes the agreement on behalf of that party.
16.11 INTEREST FOR FAILURE TO PAY
If any party fails to pay any amount payable under this agreement on the
due date for payment, that party must pay interest from the due date on
the amount unpaid at the higher of the rate of 12% or the rate (if any)
fixed or payable under a judgment or other thing referred to in clause
16.12(a).
16.12 INTEREST PAYABLE ON JUDGMENT
The interest payable under clause 16.11:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment or
other thing into which the liability to pay the amount becomes
merged; and
(b) may be capitalised by the person to whom it is payable at
monthly intervals.
16.13 CONFIDENTIALITY
The parties must maintain absolute confidentiality concerning the
existence and terms of this agreement and no public announcement or
communication relating to the negotiations of the parties or the
existence, subject matter or terms of this agreement may be made or
authorised by or on behalf of a party without the prior written approval
of the other party except that a party may make such disclosures in
relation to this agreement as it may in its reasonable discretion think
necessary:
(a) to its professional advisers, bankers, insurers and insurance
brokers, financial advisers and financiers upon those persons
undertaking to keep confidential any information so disclosed;
or
(b) to comply with any applicable law or the requirement of any
regulatory body (including any relevant stock exchange).
47.
<PAGE> 53
SCHEDULE 1
(clause 5.1)
STOCKTAKE PROCEDURES
The Stock must be valued at the lower of Cost and NRV, where:
"COST" means fully absorbed cost determined in accordance with the
principles set out in items 1.4 and 2.4 of schedule 3 except that the
standards in the "standard costing" method will be changed only in the
case of a variance of at least $250,000 in the aggregate; and
"NRV" means the best price or prices recoverable from an arms length
purchaser given the condition of the Stock.
Any dispute between the Principal Parties arising from the stocktake must be
referred on the day of the stocktake to KPMG as an expert for determination (and
not for arbitration) and:
(a) KPMG must be required to make the determination on the day of
the stocktake;
(b) the Principal Parties must promptly execute whatever reasonable
terms of engagement KPMG requires (including any indemnity);
(c) each Principal Party must provide all such assistance as it is
able to provide as reasonably requested by KPMG;
(d) the determination made by KPMG is final and binding on the
Principal Parties; and
(e) the Principal Parties must equally bear the costs of KPMG in
making the determination.
48.
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SCHEDULE 2
(clause 1.1)
ACCOUNTS DATE NET ASSET STATEMENT
<TABLE>
<CAPTION>
ACCOUNTS COMPLETION
DATE DATE
A$'000 A$'000
---------- ----------
<S> <C> <C> <C>
ASSETS
Trade Debtors 17,399
Inventories 15,646
Other Debtors/Prepayments 1,047
Cash 0 Refer Schedule 3, Note 2, subsection 4
----------
TOTAL CURRENT ASSETS 34,092
----------
Fixed Assets 57,268
Shares in Subsidiaries 0
Goodwill/Intangibles 421
Future Income Tax Benefit 342
----------
TOTAL NON-CURRENT ASSETS 58,031
----------
TOTAL ASSETS 92,123
----------
LIABILITIES
Overdraft 0 Refer Schedule 3, Note 2, subsection 4
Creditors -12,473
Employee Provisions -1,800
Provision for Income Tax 0 Refer Schedule 3, Note 2, subsection 7
Mark to Market Hedging Contracts 0 Refer Schedule 3, Note 2, subsection 5
----------
TOTAL CURRENT LIABILITIES -14,273
----------
Employee Provisions -2,072
Deferred Income Tax Liability -2,388
----------
TOTAL NON-CURRENT LIABILITIES -4,460
----------
TOTAL LIABILITIES -18,733
----------
NET ASSETS 73,390
----------
</TABLE>
49.
<PAGE> 55
SCHEDULE 3
(clause 5)
AGREED ACCOUNTING PRINCIPLES
NOTE 1 - AGREED ACCOUNTING POLICIES AND PRINCIPLES
1. THE COMPANY
1.1 ACCOUNTING POLICIES
The Company prepares its financial accounts using policies which are
consistent with the Corporations Law and applicable Australian
Accounting Standards.
1.2 ACCOUNTS RECEIVABLE AND REVENUE RECOGNITION
A sale is recorded when goods have been dispatched to a customer
pursuant to a sales order and the associated risks have passed to the
carrier or customer. Consignment stocks are placed with customers and
sales are recorded in accordance with the relevant agreement with the
customer.
1.3 PROCEDURE FOR BAD AND DOUBTFUL DEBTS
Customer balances that are deemed uncollectable are written off. Where
it is considered economical to do so, the amount of the doubtful debt is
passed on to a debt collector for collection. A doubtful debts provision
is carried in the accounts, which is comprised of specific doubtful
debts, an allowance for credit notes and all debts which have been
outstanding for more than 90 days and deemed uncollectable. It is then
supplemented with a general provision such that the total provision does
not exceed $60,000. The adequacy of this provision is reviewed
half-yearly.
1.4 INVENTORY
(a) Inventory costing practices
A "standard costing" methodology is used where standard costs
are set at the beginning of each year and reviewed quarterly.
The standards are changed where a variance to the standard is
considered material.
By-products that are not material in value (all Lane Cove
products) are valued at net realisable value. Gluten at Tamworth
is considered to be a co-product and therefore wears its share
of material and production overhead costs.
Off-code products that cannot be sold are written down to
material cost.
(b) Stock loss provision - Lane Cove
A provision for grain shrinkage is maintained at Lane Cove. The
shrinkage provision is based on the total ex-grower grain
movements in a silo since it was last emptied. It is calculated
by multiplying the total value of the ex-grower grain
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movement by 1%. When the silo is emptied the shrinkage is
brought to account and written off the provision.
(c) Grain financing facility
Raw material subject to the BNP Facility is brought to account
as inventory only as it is drawn down ready for use. At all
times prior to this the grain remains "off-balance sheet". The
financing charge associated with the BNP Facility is booked as
an interest expense.
(d) Physical stocktake policy and procedures
Finished Goods: A perpetual inventory system is maintained.
Cyclical counting procedures are in place whereby high-value and
fast moving products are counted at least weekly. All stocks are
counted at least monthly.
Raw Materials: Raw material is counted at least as frequently as
at each month-end.
Stocktake Variances: Variances re physical versus book are
brought to account as profit or loss in the period in which they
are identified.
(e) Accounting for maintenance and spare parts
All maintenance costs are booked to the profit and loss account
when they are incurred. Spare part and engineering items are
either expensed on purchase if they are individually below $300,
or accounted for as engineering stores inventory if they exceed
$300 and expensed to the profit and loss account as they are
used.
1.5 FIXED ASSET RECOGNITION POLICY INCLUDING DETERMINATION AND REVIEW
PROCEDURES
Capital expenditure is recorded as assets under construction until it is
ready for use. When it is ready for use it is recorded in the asset
register and depreciation commences.
Procedures are in place to identify obsolete, scrapped and sold assets.
The useful lives of assets are determined by the plant managers when
they are ready for use and range from 5 to 20 years for most plant and
equipment and 40 to 50 years for buildings. Land is not depreciated.
Land and buildings are recorded at valuation. Other fixed assets are
recorded at cost. Land and buildings valuations are performed by
consultants retained by Goodman Fielder at least every 3 years.
Valuation amounts are determined using a "going concern" basis. Land and
buildings included in the accounts include some holdings which have
legally remained owned by Goodman Fielder Mills Limited and Goodman
Fielder Limited due to practical issues of formal transfer (see schedule
8).
1.6 INTANGIBLES AND CAPITALISED EXPENSES
Purchased Goodwill: amortised over 5 years.
Capitalised expenses: depreciated over 10 years.
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1.7 EMPLOYEE ENTITLEMENTS
(a) Wages and Salaries, Annual Leave and Vesting Sick Leave
Liabilities for wages and salaries, annual leave and vesting
sick leave are recognised and are measured as the amount unpaid
at the reporting date at current pay rates plus employment
on-costs, with respect to employees' services up to that date.
Amounts that will not be paid within the next 12 months are
disclosed as non-current liabilities.
(b) Long Service Leave
A liability for long service leave is recognised, and is
measured as the present value of expected future payments to be
made with respect to services provided by employees up to the
reporting date. The basis used provides for the pro-rata value
of long service leave for all employees in excess of 5 years of
service plus on-costs. The liability that will be paid within
the next 12 months is disclosed as a current liability.
(c) Superannuation
Employer contributions to employee superannuation funds,
principally Goodman Fielder sponsored funds, are charged to the
profit and loss account as incurred.
(d) Workers' compensation
The provision for workers' compensation at the balance date is
as per the most recent insurer assessment adjusted for actual
wages paid during the year and also adjusted for the expected
value of claims made during the period. The movement in the
provision is charged to the profit and loss account accordingly.
1.8 LEASES
Operating lease payments are charged to profit and loss account in the
periods as they are incurred.
1.9 TAXATION
Tax expense is recognised as prima facie tax on operating profit,
computed at the prevailing corporate tax rate plus or minus permanent
differences. Timing differences between accounting and taxation
recognition of income and expense items give rise to deferred tax
balances described as "Future Income Tax Benefit" or "Deferred Income
Tax Liability". These deferred tax balances are stated at balance date
at the value corresponding to the tax rate at which they are expected to
be realised.
1.10 FOREIGN CURRENCY TRANSACTIONS
Foreign currency sales and purchases are hedged and the hedge rate is
used to account for these transactions. Foreign currency gains and
losses and hedging costs are borne by the Company. Unhedged transactions
are brought to account at the rates of exchange applicable on the date
of the transaction.
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2. THE SUBSIDIARY
2.1 ACCOUNTING POLICIES
The Subsidiary prepares its financial accounts using policies which are
consistent in all material respects with the Corporations Law,
applicable Australian Accounting Standards and applicable New Zealand
Financial Reporting Standards and Statements of Standard Accounting
Practice.
2.2 ACCOUNTS RECEIVABLE AND REVENUE RECOGNITION
A sale is recorded when goods have been dispatched to a customer
pursuant to a sales order and the associated risks have passed to the
carrier or customer. Consignment stocks are placed with customers and
sales are recorded in accordance with the relevant agreement with the
customer.
2.3 PROCEDURE FOR BAD AND DOUBTFUL DEBTS
Customer balances that are deemed uncollectable are written off. Where
it is considered economical to do so, the amount of the doubtful debt is
passed on to a debt collector for collection. A general doubtful debts
provision is maintained at all times. The adequacy of this provision is
reviewed regularly.
2.4 INVENTORY
(a) Inventory costing practices
A "standard costing" methodology is used where standard costs
are set at the beginning of each year and reviewed quarterly.
The standards are changed where a variance to the standard is
considered material.
By-products are valued at net realisable value.
Off-code products that cannot be sold are written down to
material cost.
(b) Physical stocktake policy and procedures
Finished Goods: A perpetual inventory system is maintained.
Cyclical counting procedures are in place whereby fast moving
products are counted at least weekly. Others every two weeks.
All stocks are counted at least monthly.
Raw Materials: Raw material is counted every two weeks except
grain which is counted at month-end.
Stocktake Variances: Variances re physical versus book are
brought to account as profit or loss in the period in which they
are identified.
(c) Accounting for maintenance and spare parts
All maintenance costs are booked to the profit and loss account
when they are incurred. Spare part and engineering items are
either expensed on purchase if they are individually below
NZ$300, or accounted for as engineering stores
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inventory if they exceed NZ$300 and expensed to the profit and
loss account as they are used.
2.5 FIXED ASSET RECOGNITION POLICY INCLUDING DETERMINATION AND REVIEW
PROCEDURES
Capital expenditure is recorded as assets under construction until it is
ready for use. When it is ready for use it is recorded in the asset
register and depreciation commences.
Procedures are in place to identify obsolete, scrapped and sold assets.
Depreciation rates are as per the Subsidiary's "Statement of Accounting
Policies" attached to the Subsidiary's Financial Statements unless the
estimated useful life of the asset is considered to be materially
different to the "Statement of Accounting Policies". Land is not
depreciated.
Land and buildings are recorded at valuation. Other fixed assets are
recorded at cost. Land and buildings valuations are performed by
consultants retained by Goodman Fielder at least every 3 years.
Valuation amounts are determined using a "going concern" basis.
2.6 EMPLOYEE ENTITLEMENTS
(a) Annual and Long Service Leave
Liabilities for wages and salaries, annual leave and long
service leave are recognised and are measured as the amount that
would be paid to the employee if the employee were to resign at
the reporting date. Annual leave is disclosed as a current
liability and long service leave as a non-current liability.
(b) Superannuation
Employer contributions to employee superannuation funds,
principally Goodman Fielder sponsored funds, are charged to the
profit and loss account as incurred.
2.7 LEASES
Operating lease payments are charged to profit and loss account in the
periods as they are incurred.
2.8 TAXATION
Tax expense is recognised as prima facie tax on operating profit,
computed at the prevailing corporate tax rate plus or minus permanent
differences. Timing differences between accounting and taxation
recognition of income and expense items give rise to deferred tax
balances described as "Future Income Tax Benefit" or "Deferred Income
Tax Liability". These deferred tax balances are stated at balance date
at the value corresponding to the tax rate at which they are expected to
be realised.
2.9 FOREIGN CURRENCY TRANSACTIONS
Foreign currency sales and purchases are hedged and the hedge rate is
used to account for these transactions. Foreign currency gains and
losses and hedging costs are borne by the Subsidiary. Exchange gains or
losses are taken to the profit and loss account as they are realised.
Unhedged transactions are brought to account at the rates of exchange
applicable on the date of the transaction.
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3. CONSOLIDATION
3.1 TRANSLATION
Subsidiary financial statements are translated based on the principals
of the current rate method per AASB1012. Exchange rates are the "month
end" rates issued by GF Finance Limited. The source of these rates is
the Reuters Mid-Rates on the last Friday of each accounting period. (For
the period close corresponding to Completion, 11.00 am will be used.)
3.2 ELIMINATIONS
Intra-entity balances and unrealised profits from intra-entity
transactions are eliminated in full.
The Subsidiary's pre-acquisition share capital and reserve balances are
eliminated against the Company's investment in the Subsidiary.
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NOTE 2 - FURTHER POLICIES APPLICABLE TO THE DETERMINATION OF THE NET ASSETS
ADJUSTMENT BETWEEN THE ACCOUNTS DATE NET ASSET STATEMENT AND THE COMPLETION DATE
NET ASSET STATEMENT
The movement between Accounts Date Net Asset Statement and the Completion Date
Net Asset Statement will reflect the continued application of normal accounting
principals and practice with the exception of the following one-off adjustments.
4. BANK ACCOUNTS
To facilitate the intended cash-free position of the Bodies Corporate at
Completion the following adjustments will be effected as at Completion:
(a) all outstanding cheques will be added back to creditors;
(b) all outstanding deposits will be added back to debtors; and
(c) the balance of cash appearing in the bank statement for each
account will be cleared via inter-company transfer to GF Finance
Limited or GF Finance NZ Limited.
(Note: due to the timing of bank processing, some transactions may
impact the bank balance subsequent to its clearance to nil via
inter-company transfer. Where this occurs, that nominal amount of cash
(or overdraft) will be included in the Completion Date Net Asset
Statement.)
5. OPEN HEDGING CONTRACTS
Immediately prior to closing the books of the Company on the Completion
Date, the following will occur:
(a) The hedging contracts between the Company and GF Finance Limited
will be closed out. GF Finance Limited will issue an
inter-company debit or credit note recognising the net payable
or receivable resulting from the close out of those contracts.
The Company will book the net payable or receivable to the
non-trading inter-company account with GF Finance Limited, with
a corresponding entry to exchange gain or loss in the profit and
loss statement of the Company.
(b) Simultaneous with the recognition of the hedge close out, all
underlying foreign currency denominated payables and receivables
will be "marked to market" based on the "month end" exchange
rates prevailing at the Completion Date issued by GF Finance
Limited in accordance with item 3.1 of note 1 of this schedule.
This will give rise to a corresponding entry to exchange gain or
loss in the profit and loss statement of the Company.
Any net payable or receivable referred to in paragraph (a) or (b) will
be brought to account as either a receivable or payable in the
Completion Date Net Asset Statement.
6. BNP FACILITY
To the extent that the Purchaser does not replicate the off-balance
sheet grain financing arrangements provided to the Company by BNP
Australia Limited (including the BNP
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Facility), the value of the grain under those arrangements on Completion
will be brought onto the Completion Date Net Asset Statement at the
amount required to discharge all obligations of the Company payable to
BNP Australia Limited.
7. PROVISION FOR TAX
Balances of provision for Tax were nil in the Accounts Date Net Assets
Statement due to the application of grouping arrangements as at 30 June
2000. The Completion Date Net Assets Statement will include a provision
for Tax based on the taxable income for the period 1 July 2000 to
Completion.
8. REAL PROPERTY
There will be no increase in the net assets of the Company as a result
of the Company or the Subsidiary acquiring, or acquiring a further
interest in, any of the real property referred to in schedule 8.
9. OTHER
All balance sheet items not specifically referred to above will be
determined in the Completion Date Net Asset Statement on exactly the
same basis as in the Accounts Date Net Asset Statement.
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SCHEDULE 4
(clause 5)
CERTIFICATE
INDEPENDENT AUDIT REPORT TO THE DIRECTORS OF STARCH AUSTRALASIA LIMITED
Terms used in this certificate that are defined in the Share Sale Agreement
between Goodman Fielder Ingredients Limited and Penford Australasia Limited have
the same meanings in these notes as in that agreement.
1. SCOPE
1.1 We have audited the Completion Date Net Asset Statement, being a special
purpose financial report as at the Completion Date. The Completion Date
Net Asset Statement includes the economic entity comprising Starch
Australia Limited and the entity it controlled at period end: Starch New
Zealand Limited. The pre-Completion directors of Starch Australasia
Limited are responsible for the preparation and presentation of the
Completion Date Net Asset Statement and the information contained
therein, and have determined that the basis of accounting used and
described in notes 1 and 2 to the Completion Date Net Asset Statement is
appropriate. We have conducted an independent audit of the Completion
Date Net Asset Statement in order to express an opinion to the directors
of Starch Australasia Limited on its preparation and presentation in
accordance with the Agreed Accounting Principles described in notes 1
and 2 to the Completion Date Net Asset Statement. No opinion is
expressed as to whether the Agreed Accounting Principles used and
described in notes 1 and 2 are appropriate to the needs of the parties
to the agreement.
1.2 The Completion Date Net Asset Statement has been prepared for the
purpose of the Share Sale Agreement dated [INSERT DATE] 2000. We
disclaim any assumption of responsibility for any reliance on this
report or on the Completion Date Net Asset Statement to which it relates
to any person, or for any purpose other than that for which they were
prepared.
1.3 Our audit has been conducted in accordance with Australian Auditing
Standards to provide reasonable assurance as to whether the Completion
Date Net Asset Statement is free of material misstatement and whether it
has been prepared in accordance with the Agreed Accounting Principles
described in notes 1 and 2 to the Completion Date Net Asset Statement.
Our procedures included examination, on a test basis, of evidence
supporting the amounts and other disclosures in the Completion Date Net
Asset Statement, and the evaluation of Agreed Accounting Principles and
significant accounting estimates. These procedures have been undertaken
to form an opinion as to whether, in all material respects, the
Completion Date Net Asset Statement is presented fairly in accordance
with the Agreed Accounting Principles described in notes 1 and 2 to the
Completion Date Net Asset Statement. These policies do not require the
application of all Accounting Standards and other professional reporting
requirements in Australia.
1.4 The audit opinion expressed in this report has been formed on the above
basis.
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2. AUDIT OPINION
In our opinion, the Completion Date Net Asset Statement is properly
drawn up to present fairly, in accordance with the Agreed Accounting
Principles described in notes 1 and 2 to the Completion Date Net Asset
Statement, the financial position of the economic entity as at the
Completion Date.
[ERNST & YOUNG]
Chartered Accountants
Date:
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SCHEDULE 5
(clause 8)
PURCHASER'S WARRANTIES
1. THE PURCHASER
1.1 The Purchaser is duly incorporated and validly exists under the law of
its place of incorporation.
1.2 The Purchaser is not insolvent and no receiver has been appointed over
any part of its assets and no such appointment has been threatened.
1.3 The Purchaser is not in liquidation or official management and no
proceedings have been brought or threatened for the purposes of winding
up the Purchaser or placing it under official management.
2. DUE AUTHORISATION
2.1 The execution and delivery of this agreement has been properly
authorised by all necessary corporate action of the Purchaser.
2.2 The Purchaser has full corporate power and lawful authority to execute
and deliver this agreement and to consummate and perform or cause to be
performed its obligations under this agreement.
2.3 This agreement constitutes a legal, valid and binding obligation of the
Purchaser enforceable in accordance with its terms by appropriate legal
remedy.
2.4 This agreement and Completion do not conflict with or result in a breach
of or default under any provision of the constitution of the Purchaser
or any material term or provision of any agreement or deed or any writ,
order or injunction, judgement, law, rule or regulation to which it is a
party or is subject or by which it is bound.
3. PURCHASER'S WARRANTIES CONCERNING PURCHASER'S FUND
The Purchaser is not aware of anything that would prevent the trustee of
the Purchaser's Fund accepting the Employees as members of the
Purchaser's Fund or the Transfer Amounts in respect of those employees
(including, but not limited to, that the trustee of the Purchaser's Fund
has not received a notice from the Regulator directing the trustee of
the Purchaser's Fund not to accept contributions from employer-sponsors
of the Purchaser's Fund within the meaning of the Superannuation
Industry (Supervision) Act 1993 (Cth) or, if the trustee of the
Purchaser's Fund has received such a notice, it has been revoked).
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SCHEDULE 6
(clause 6.1)
VENDOR'S WARRANTIES
1. THE VENDOR
1.1 The Vendor is duly incorporated and validly exists under the law of its
place of incorporation.
1.2 The Vendor is not insolvent and no receiver has been appointed over any
part of its assets and no such appointment has been threatened.
1.3 The Vendor is not in liquidation or official management and no
proceedings have been brought or threatened for the purposes of winding
up the Vendor or placing it under official management.
2. DUE AUTHORISATION
2.1 The execution and delivery of this agreement has been properly
authorised by all necessary corporate action of the Vendor.
2.2 The Vendor has full corporate power and lawful authority to execute and
deliver this agreement and to consummate and perform or cause to be
performed its obligations under this agreement.
2.3 This agreement constitutes a legal, valid and binding obligation of the
Vendor enforceable in accordance with its terms by appropriate legal
remedy.
2.4 This agreement and Completion do not conflict with or result in a breach
of or default under any provision of the constitution of the Vendor or
any material term or provision of any agreement or deed or any writ,
order or injunction, judgement, law, rule or regulation to which it is a
party or is subject or by which it is bound.
3. INFORMATION
3.1 The facts set out in the recitals and in schedule 8 are true, complete
and accurate in all respects.
3.2 To the knowledge of the Vendor, as at the date of this agreement there
is no information or documents other than the Disclosures and publicly
available information which are known to the Vendor or are in the
possession of the Vendor and which are material to an assessment by the
Purchaser of the assets and liabilities, profits and losses and
financial position of the Bodies Corporate as at the date of this
agreement, having regard to clause 6.4 and the Purchaser's
sophistication and knowledge of the industry sector in which the
Business operates.
3.3 All documents, agreements and other instruments included on the due
diligence CD-ROM provided to the Purchaser Entity on 2 June 2000 (that
are not obviously extracts or masked in any way) are complete and
accurate copies of the originals.
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3.4 To the Vendor's knowledge, the Vendor has provided the Purchaser
Entities with all material written information in the Vendor's
possession or control in relation to potentially leaking underground
storage tanks at the Shell Depot.
4. ACCOUNTS AND FINANCIAL POSITION
4.1 The Accounts have been prepared on the following bases:
(a) the Agreed Accounting Principles; and
(b) subject to all of the assumptions noted in the Accounts,
and accordingly show a true and fair view of the consolidated financial
position of the Bodies Corporate as at the Accounts Date.
4.2 To the Vendor's knowledge, all the accounts, books, ledgers and
financial and other material records of any kind of each Body Corporate
contain no material inaccuracies or discrepancies in relation to the
financial, contractual, trading and net asset position of the relevant
Body Corporate (as the case may be) at the relevant time.
5. THE BODIES CORPORATE
5.1 Each Body Corporate is duly incorporated.
5.2 Each Body Corporate has full power and authority to own its property and
assets and to conduct its Business.
5.3 No Body Corporate has gone into liquidation or passed any resolution
that it be wound up and no application for its winding up has been
presented.
5.4 To the Vendor's knowledge, no writ of execution exists against any Body
Corporate.
5.5 No receiver has been appointed nor, to the Vendor's knowledge, is the
appointment of a receiver or receiver and manager threatened, in
relation to the whole or any part of the undertaking or assets of any
Body Corporate and no event has occurred which entitles any person
(other than the Body Corporate) to appoint or seek the appointment by a
court of a receiver or receiver and manager.
5.6 The copy of the constitution of each Body Corporate which has been
supplied to the Purchaser is a true copy of the constitution of the Body
Corporate as the case may be.
5.7 The register of members of each Body Corporate contains a true and
accurate record of its members from time to time.
5.8 All statutory books and records of each Body Corporate have been
properly kept and are up to date with true and accurate entries and
records.
5.9 Each Body Corporate:
(a) has complied with all material legal requirements for the filing
of material returns, particulars, notices and other documents
with all government and regulatory authorities (including any
relevant stock exchange);
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(b) has complied with all material legal requirements in relation to
the conduct of its Business in all material respects; and
(c) has conducted its Business and its affairs generally in
accordance with all material applicable laws, orders,
regulations, by-laws and other similar requirements.
5.10 The Business and affairs of each Body Corporate have been conducted in
accordance with its constitution.
5.11 The Subsidiary is a wholly owned subsidiary of the Company and there are
no other securities issued or agreed to be issued (including options or
convertible instruments) in the Subsidiary.
6. DELEGATIONS AND OFFERS
6.1 There are no powers of attorney or other authorities given by any Body
Corporate which could authorise any person to deal with the whole or any
part of the assets or Business of that Body Corporate (as the case may
be).
6.2 No offer, tender, quotation or similar intimation given or made by a
Body Corporate or by the Vendor that is still outstanding and relates to
the Shares or the Business of any Body Corporate is capable of giving
rise to a contract merely by the unilateral act of any third party,
other than in the ordinary course of business.
7. THE SHARES
7.1 The Shares are all the issued shares in the capital of the Company.
7.2 The Shares and the shares in the Subsidiary are not encumbered in any
way.
7.3 The Shares and the shares in the Subsidiary have been allotted and fully
paid up and no moneys are owing to the Company in respect of them.
7.4 There are no agreements, arrangements or understandings in force or
securities issued which call for the present or future issue of, or
grant to any person the right to require the issue of, any shares or
other securities in the Bodies Corporate.
7.5 The shares held by the Company in the Subsidiary are legally and
beneficially owned by the Company.
8. BUSINESS AND ASSETS
8.1 Since the Accounts Date, the Business of each Body Corporate has been
carried on in the ordinary and usual course and, without limitation,
there has not been:
(a) any material alteration in the terms of employment of its senior
management or employees;
(b) any liability or obligation incurred or agreed to be incurred or
other assets disposed of or agreed to be disposed of, otherwise
than in the usual conduct of the Businesses;
(c) any special resolution passed; or
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(d) any operational expense or item of capital expenditure incurred
or agreed to be incurred which is of an unusual nature or
abnormal amount having regard to the customary business
practices applicable to the industry in which the Bodies
Corporate operate.
8.2 Each Body Corporate has good and marketable title to all its property
and assets free from any security or third party interest and there is
no agreement to give or create any security or third party interest and
no Claim has been made by any person to be entitled to an interest of
that kind.
8.3 The property and assets of each Body Corporate comprise all of the
property and assets used in connection with or necessary for the
continuing conduct of its Business including the benefit of any contract
used by the Body Corporate in relation to its Business.
8.4 To the Vendor's knowledge, all plant and equipment used in the conduct
of the Business of each Body Corporate is in good repair and working
condition (consistent with their respective ages and uses).
8.5 No Body Corporate knows or is aware of any claim or circumstances likely
to give rise to a claim that its Business breaches or infringes or has
breached or infringed any intellectual property right of any third
party.
8.6 The Bodies Corporate do not rely on other GF Group entities to provide
their information technology and accounting requirements.
9. REAL PROPERTY
9.1 Where a Body Corporate is described as the owner, occupier, lessee or
lessor of any Property:
(a) the interest of the Body Corporate so described is (or, in the
case of Properties where a Body Corporate is described in
schedule 8 as the occupier, will be before Completion) free from
any security or third party interest including in the case of
freehold property free from any subleases, subtenancies or other
arrangements where the person has obtained the use or occupation
of the Property;
(b) the relevant Property comprises all the freehold or leasehold
properties owned, used or occupied by the Body Corporate;
(c) the use of the Property for the purposes of the Business of the
Body Corporate is permitted under the planning statutes and
regulations and there have been no contraventions or alleged
contraventions of the provisions of these statutes and
regulations (excluding any statutes and regulations relating to
or covering Environmental Aspects);
(d) the Body Corporate has performed and reserved all covenants,
conditions, agreements, statutory requirements, by-laws, orders
and regulations affecting the Property and the use of the
Property does not contravene those instruments;
(e) there are no outstanding orders or notices affecting the
Property and there are no proposals of any local or other
authority (whether involving compulsory acquisition or
requisition or otherwise) or any other circumstances known to
the
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Vendor which may result in such order or notice being made or
served or which may otherwise affect the Property; and
(f) where the Body Corporate has done or caused to be done on any
Property any works for which a permit or consent is required, a
permit or consent has been obtained and such works were carried
out in accordance with that permit or consent.
9.2 Where the interest of a Body Corporate in any Property is leasehold:
(a) The lease is a valid, legal and binding obligation in accordance
with its terms;
(b) the Body Corporate has duly complied with and fulfilled all of
its material obligations and duties under the relevant lease;
and
(c) no event has occurred in relation to the Body Corporate which
may be grounds for termination of the relevant lease.
9.3 To the Vendor's knowledge, the Properties are in good condition and
repair, fit for the purpose of carrying on the Business conducted there
and the real properties are not subject to any material defects or other
matters or circumstances which will or may with the lapse of time
materially decrease the value of the Properties.
9.4 All information given by or on behalf of the Vendor to Dames & Moore in
undertaking the environmental audits and preparing reports included in
the Due Diligence Material with respect to Environmental Aspects is true
and accurate in all material respects.
9.5 The Company has all necessary licences, easements, leases or agreements
to pipe waste from the Tamworth plant to Calala Farm and those licences,
easements, leases or agreements will survive the transfer of Shares
under this agreement.
9.6 Each Body Corporate has all necessary licences under Environmental Laws.
9.7 The Properties are not Contaminated so as to propose a significant risk
of harm to human health or the Environment during the ordinary conduct
of the Business immediately before Completion.
9.8 There are no Environmental Claims against any Body Corporate.
9.9 To the Vendor's knowledge, no Body Corporate has Contaminated any land,
or caused any Pollution, in contravention of any Environmental Laws.
10. CONTRACTS
10.1 Each Body Corporate has duly complied with all the material obligations
and duties that it owes under any material agreement or arrangement to
which it is party.
10.2 To the Vendor's knowledge, no event has occurred which may be grounds
for termination of any material agreement or arrangement to which a Body
Corporate is a party.
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10.3 No Body Corporate is a party to any agreement or arrangement of which it
or, to the Vendor's knowledge, any other party is materially in default
or, but for the requirements of notice for lapse of time or both, would
be materially in default.
10.4 No Body Corporate is a party to any agreement, arrangement or
understanding which contravenes any applicable law in any material
respect.
10.5 Every material contract, instrument or other commitment to which any
Body Corporate is a party is valid and binding according to its terms.
11. TAXATION
11.1 All Taxation returns required to be made before Completion by any Body
Corporate have been made.
11.2 All Taxation returns made by a Body Corporate have been made with true
and full disclosure of relevant matters.
11.3 There are no outstanding disputes or questions or demands between any
Body Corporate and any Taxation Authority.
11.4 To the Vendor's knowledge, no Body Corporate has any liabilities in
respect of unpaid or unassessed Taxes except as provided for in the
Accounts.
11.5 To the Vendor's knowledge, no Body Corporate will become subject to any
Tax:
(a) on or in respect of or by reference to profits, gains or income
for any period up to and including the Completion Date; or
(b) in respect of any other matter or thing referable to a time
prior to, or to any period ending on or before the Completion
Date,
in excess of the provisions for Tax included in the Accounts.
11.6 The only liabilities for tax of any Body Corporate arising since the
Accounts Date are liabilities arising out of the normal business and
trading activities of that Body Corporate.
11.7 Each Body Corporate that is required to comply with the provisions of
Part IIIAA of the Income Tax Assessment Act 1936 (Cth) has done so and
has maintained records of franking debits and franking credits which are
sufficient for the purposes of that legislation. The imputation credit
account which any Body Corporate is required to maintain under the
Income Tax Act 1994 (NZ) has been correctly maintained.
11.8 To the Vendor's knowledge, except in respect of this agreement, and
documents or transactions contemplated by this agreement, all taxes
payable in respect of every deed, agreement or other document or
transaction to which a Body Corporate is or has been a party or by which
it derives, has derived or will derive a substantial benefit have been
fully paid and (where legislation requires that such deed, agreement or
other document be stamped) no such deed, agreement or other document is
unstamped or insufficiently stamped.
11.9 All Taxes of whatsoever nature which a Body Corporate has been liable to
pay have been paid.
66.
<PAGE> 72
11.10 To the Vendor's knowledge, the Company has complied with the GST Law.
11.11 The Subsidiary has complied in all material respects with the provisions
of the Income Tax Act 1994 (New Zealand) and the Tax Administration Act
1994 (New Zealand).
11.12 The Subsidiary has made to the Taxation Authority full and true
disclosure of all facts necessary for the proper assessment of any and
all Tax.
11.13 The terms of supply under each Supply Agreement (including pricing and
quantities) are consistent in all material respects with the terms on
which the Company has supplied the relevant products to each customer
specified in the relevant Supply Agreement in the year immediately
preceding the date of this agreement.
12. EMPLOYEES
12.1 To the Vendor's knowledge and except for all claims in relation to
workers' compensation, there is no threatened or pending material
dispute between any Body Corporate and any group of employees.
12.2 Each Body Corporate has complied in all material respects with all
contractual, statutory, legal and fiscal obligations of and in relation
to its employment of its employees, including all codes of practice,
collective agreements and awards.
12.3 No member of senior management of a Body Corporate has given notice
(which has not yet expired) terminating their contract of employment or
is under notice of dismissal.
12.4 No Body Corporate is under any actual liability to pay compensation for
loss of office or employment or for wrongful dismissal or retirement and
no gratuitous payment has been made or promised by a Body Corporate to
any ex-officer or ex-employees except as provided for in the Accounts.
12.5 There are no payments due by any Body Corporate in connection with the
redundancy of any employee except as provided for in the Accounts.
12.6 There are no retirement or death and disability benefits, share option
or share incentive schemes, profit sharing schemes, pension schemes or
other pension arrangements, whether legally enforceable or not relating
to any Body Corporate in operation or effect, other than the
superannuation and employees share and option plans which have been
disclosed to the Purchaser Entity in the Due Diligence Materials and
there are no unfunded or contingent obligations in respect of any such
superannuation fund, retirement benefit scheme or other pension scheme
or arrangement.
12.7 There are no specific provisions in any written contracts of employment
that provide that the contract cannot be terminated without giving more
than 3 months' prior notice.
12.8 The only bonus or incentive schemes in which an Employee is entitled to
participate are the bonus or incentive schemes disclosed to the
Purchaser Entity in the Due Diligence Materials.
12.9 No Body Corporate has entered into negotiations with any union or group
of employees to provide future wage increases which are inconsistent
with the enterprise or collective agreements which are in place at
Completion.
67.
<PAGE> 73
12.10 The Subsidiary is not the subject of any Claim, prosecution or
investigation under the Health and Safety in Employment Act 1992 (New
Zealand) and to the Vendor's knowledge there is no matter which might
give rise to any such Claim, prosecution or investigation.
13. SUPERANNUATION
13.1 The Vendor's Fund is the only superannuation or retirement fund, pension
scheme or arrangement to which the Company has a superannuation
commitment in relation to the employees of the Company.
13.2 The Company has satisfied its superannuation commitments and has made
all payments necessary to avoid incurring any liability to pay the
superannuation guarantee charge under the Superannuation Guarantee
Charge Act 1992 (Cth) in relation to the employees of the Company.
13.3 The Vendor's Fund is a Complying Superannuation Fund and to the Vendor's
knowledge there is no matter that would be likely to result in the
Vendor's Fund no longer being a Complying Superannuation Fund.
13.4 Any amendments made to the governing rules of the Vendor's Fund have
been validly made.
13.5 The accounts and records of the Vendor's Fund have been kept, are up to
date and show a true and fair view of the affairs of the Vendor's Fund.
13.6 The assets of the Vendor's Fund are sufficient to provide the Transfer
Amounts of the employees of the Company.
13.7 The NZ Fund is the only superannuation or retirement fund, pension
scheme or arrangement to which the Subsidiary has a superannuation
commitment in relation to the NZ Employees.
13.8 The NZ Fund is a Registered Superannuation Scheme and there are no
material disputes, objections, or appeals with the Government Actuary,
the Commissioner of Inland Revenue or any other regulatory body
concerning NZ Employees who are members of the NZ Fund and there are no
material issues, questions or demands by NZ Employees who are members of
the NZ Fund in relation to their entitlements under the NZ Fund.
13.9 The accounts and records of the NZ Fund have been kept, and are up to
date and show a true and fair view of the affairs of the NZ Fund in all
material respects.
13.10 All contributions required to be made to the NZ Fund by the Subsidiary
have been paid to date.
13.11 The assets of the NZ Fund are sufficient to provide the Transfer Amounts
of the NZ Employees who are members of the NZ Fund.
14. COMPLIANCE WITH LAW AND ABSENCE OF LITIGATION
14.1 To the Vendor's knowledge there is no material claim, action, proceeding
or demand which may give rise to litigation involving:
(a) the Vendor (in relation to the Shares or a Body Corporate); or
68.
<PAGE> 74
(b) a Body Corporate.
14.2 There is no material unsatisfied judgment, order, arbitral award or
decision of any court, tribunal or arbitrator against any Body Corporate
or the Vendor or any of the assets of the Bodies Corporate or the
Shares.
14.3 The Vendor (in relation to the Shares) and each Body Corporate, do not
engage, and have not engaged, in any conduct or practice which is in
breach of any applicable trade practices legislation.
14.4 Each Body Corporate holds all material necessary licences (including
statutory licences) and consents, authorisations and permits for the
proper carrying on of its Business in all its aspects and all of those
licences, consents, authorisations and permits:
(a) have been fully paid up;
(b) have been fully complied with in all material respects;
(c) are in full force and effect;
(d) to the Vendor's knowledge, are not liable to be revoked or not
renewed; and
(e) are not subject to any conditions.
14.5 To the Vendor's knowledge, there are no facts or circumstances involving
any Body Corporate or its affairs which are likely to result in the
revocation of or variation in any material respect of any permit,
licence, authority or consent held by it.
14.6 No permit, licence, authority or consent held by any Body Corporate
would be adversely affected by, or liable to be terminated revoked or
varied in any material respect by reason of, a change in the ownership
of any Body Corporate.
69.
<PAGE> 75
SCHEDULE 7
(Clause 1.1)
DISCLOSURES
Each of the following is a Disclosure:
1. SPECIFIC
1.1 On Completion, all insurance, in respect of any Body Corporate including
its assets, under any relevant Goodman Fielder global insurance policy
will be terminated.
1.2 [INSERT]
2. GENERAL
2.1 The Due Diligence Material.
2.2 All information contained in the slides shown at the management
presentations to any Purchaser Entity.
2.3 All other information and data provided or communicated to a Purchaser
Entity whether in writing, orally, or in any other manner in the course
of:
(a) meetings with third parties;
(b) tours of any facilities of any Body Corporate;
(c) presentations by executives of a Body Corporate, the Vendor or
Goodman Fielder to a Purchaser Entity; or
(d) any meeting between a Purchaser Entity and an executive of any
Body Corporate, the Vendor or Goodman Fielder.
70.
<PAGE> 76
SCHEDULE 8
(clause 1.1)
PROPERTY
<TABLE>
<CAPTION>
PART 1: FREEHOLD
<S> <C> <C>
TITLE REFERENCE ADDRESS REGISTERED OWNER
Auto-Consol 5824-13 119-121 Carthage Street, 11-15 The Company
1/881132 White Street and 176 Marius
A/371305 Street, Tamworth, NSW, Australia
3/873641
B/371305
--------------------------- ----------------------------------- ------------------------------
1/712114 119-121 Carthage Street, 11-15 Occupied by the Company but
White Street and 176 Marius owned by Goodman Fielder
Street, Tamworth,NSW, Australia Limited - to be transferred to
the Company before Completion
--------------------------- ----------------------------------- ------------------------------
1/161043 Calala Farm, Calala Lane & The Company
1/196504 Scott Road, Tamworth NSW,
A/164721 Australia
2/162236
3/162236
4/607266
6/999939
5/999939
34/826572
35/826572
36/826572
37/826572
Vol 6605 Fol 139
Book 3834 No 597
Book 3834 No 598
Book 3834 No 599
Book 3834 No 603
--------------------------- ----------------------------------- ------------------------------
42/719840 Calala Farm, Calala Lane & Occupied by the Company but
Scott Road, Tamworth NSW, owned by Goodman Fielder
Australia Limited - to be transferred to
the Company before Completion
--------------------------- ----------------------------------- ------------------------------
11/777128 170 Epping Road, Lane Cove, The Company
NSW, Australia
--------------------------- ----------------------------------- ------------------------------
2116/97 319 Church Street, Onehunga, The Subsidiary
2116/96 Auckland, New Zealand
29B/718
--------------------------- ----------------------------------- ------------------------------
</TABLE>
71.
<PAGE> 77
<TABLE>
<CAPTION>
PART 2: LEASEHOLD
<S> <C> <C> <C> <C>
PROPERTY ADDRESS LESSEE LESSOR TITLE LEASE
REFERENCE REGISTRATION NO.
--------------------------- ---------------- ---------------- ------------- ------------------
Southdown, Avondale, The Subsidiary The Crown - -
Auckland
--------------------------- ---------------- ---------------- ------------- ------------------
</TABLE>
72.
<PAGE> 78
SCHEDULE 9
(clause 1.1)
PATENTS
<TABLE>
<CAPTION>
<S> <C> <C>
INVENTION TITLE SERIAL/APPLICATION NUMBER COUNTRY
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including 657443 Australia
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including 259291 New Zealand
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 2147117 Canada
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 94903702.2 Europe
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 514615/94 Japan
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 9603595-1 Singapore
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 95-701470 South Korea
Resistant Starch
-------------------------------------- --------------------------------- -----------------------
Food Compositions Including Application No. 08/448582 United States of
Resistant Starch America
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch And Resistant 660560 Australia
Starch Fractions
-------------------------------------- --------------------------------- -----------------------
High Amylose starch and resistant 254014 New Zealand
starch fractions
-------------------------------------- --------------------------------- -----------------------
High Amylose starch and resistant 328867 New Zealand
starch fractions Divisional of 254014 - granted
for hybrid maize seeds
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant
Starch Fractions Application No. 93915566.9 Europe
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant Application No. 93915566.2 Europe
Starch Fractions Divisional of Application No.
93925566.9 - pending for hybrid
maize seeds
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant Application No. 504825/94 Japan
Starch Fractions
-------------------------------------- --------------------------------- -----------------------
</TABLE>
73.
<PAGE> 79
<TABLE>
<CAPTION>
<S> <C> <C>
INVENTION TITLE SERIAL/APPLICATION NUMBER COUNTRY
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant United States of
Starch Fractions 5714600 America
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant 5977454 United States of
Starch Fractions Divisional of Application No. America
08/374645 (patent 5714600) -
granted for hybrid maize seeds
-------------------------------------- --------------------------------- -----------------------
High Amylose Starch and Resistant Application No. 08/967826 United States of
Starch Fractions America
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions 293195 New Zealand
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions 37905 Singapore
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions 6060050 United States of
America
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions 687253 (under opposition) Australia
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions 3037435 Japan
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions Application No. 2199140 Canada
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions Application No. 95932570.5 Europe
-------------------------------------- --------------------------------- -----------------------
Probiotic Compositions Application No. 97-701668 South Korea
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 20180/97 Australia
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 2249189 Canada
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 97908076.9 Europe
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 532980/97 Japan
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations 331951 New Zealand
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 9804949-7 Singapore
in the Gastrointestinal Tract (accepted)
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 98-707461 South Korea
in the Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Alteration of Microbial Populations Application No. 09/155166 United States of
in the Gastrointestinal Tract America
-------------------------------------- --------------------------------- -----------------------
</TABLE>
74.
<PAGE> 80
<TABLE>
<CAPTION>
<S> <C> <C>
INVENTION TITLE SERIAL/APPLICATION NUMBER COUNTRY
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 97908078.5 Europe
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 532982/97 Japan
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Compositions for the delivery and Application No. 331950 New Zealand
maintenance of probiotic
microorganisms to and in the
gastrointestinal tract using
resistant starches (formerly
entitled "Enhancement of Microbial
Colonisation of the Gastrointestinal
Tract")
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 2249361 Canada
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 9804948-9 Singapore
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 98-707460 South Korea
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial Application No. 09/155117 United States of
Colonisation of the Gastrointestinal America
Tract
-------------------------------------- --------------------------------- -----------------------
Enhancement of Microbial 705095 (under opposition) Australia
Colonisation of the Gastrointestinal
Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 705629 (under Australia
Resident Microorganisms in the opposition)
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 2253364 Canada
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 97908077.7 Europe
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 532981/97 Japan
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
</TABLE>
75.
<PAGE> 81
<TABLE>
<CAPTION>
<S> <C> <C>
INVENTION TITLE SERIAL/APPLICATION NUMBER COUNTRY
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of 331952 New Zealand
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of 65453 Singapore
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 98-707462 South Korea
Resident Microorganisms in the
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Selection and/or Enhancement of Application No. 09/155115 United States of
Resident Microorganisms in the America
Gastrointestinal Tract
-------------------------------------- --------------------------------- -----------------------
Improved Microbial Preparations PCT/AU 00/0021 (pending for
all PCT States/Regions)
-------------------------------------- --------------------------------- -----------------------
Novel Maize Products 631403 Australia
-------------------------------------- --------------------------------- -----------------------
Starch Sub-Types and Lipid Metabolism Application No. PO6733 Australia
-------------------------------------- --------------------------------- -----------------------
</TABLE>
76.
<PAGE> 82
EXECUTED as an agreement.
SIGNED for GOODMAN FIELDER INGREDIENTS
LIMITED under power of attorney in the
presence of: /s/ Anthony Pascoe
-------------------------------------
Signature of attorney
/s/ Ralph Shurland Ashton Anthony Pascoe
------------------------------------ -------------------------------------
Signature of witness Name
Ralph Shurland Ashton 14 August 2000
------------------------------------ -------------------------------------
Name Date of power of attorney
SIGNED for PENFORD HOLDINGS PTY
LIMITED under power of attorney
in the presence of: /s/ Guy Sanderson
-------------------------------------
Signature of attorney
/s/ Ralph Shurland Ashton Guy Sanderson
------------------------------------ -------------------------------------
Signature of witness Name
Ralph Shurland Ashton 25 August 2000
------------------------------------ -------------------------------------
Name Date of power of attorney
77.
