SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
May 11, 1995
Clear Channel Communications, Inc.
(Exact name of registrant as specified in its charter)
Texas
(State of Incorporation)
1-9645 74-1787539
(Commission File Number) (I.R.S. Employer Identification No.)
200 Concord Plaza, Suite 600
San Antonio, Texas 78216
(210) 822-2828
(Address and telephone number of
principal executive offices)
<PAGE>
Clear Channel Communications, Inc.
Form 8-K
Item 2.(a)
On May 11, 1995, Clear Channel Radio, Inc. ("CCR"), a wholly
owned subsidiary of the registrant, Clear Channel Communications,
Inc., acquired by purchase 50% of the voting Common Stock
representing a 50% interest of APN Broadcasting PTY LTD.
Simultaneously, APN Broadcasting PTY LTD. merged with the
Australian Radio Network. The merged entity was renamed The
Australian Radio Network, LTD. (ARN). CCR retained its 50%
interest in this newly named entity. ARN, an Australian
Corporation, is not an affiliate of the registrant.
At the time of the acquisition ARN owned 15 radio stations,
however due to Australian ownership restrictions under the
Broadcast Services Act of 1992 ARN will be required to divest
itself of six radio stations within the next six months. Upon
completion of this divestiture ARN will own and operate nine radio
stations in six different markets including Australia's three
largest markets Sydney, Brisbane and Melbourne. In addition, ARN
owns the largest radio representation firm, Radio Air Solutions; a
narrow-cast in-store radio service, Airplay Media Services and a
satellite up-link and distribution facility, ARNSAT. The interest
in the entity acquired will be accounted for using the equity
method.
As consideration for the interest acquired, registrant's
subsidiary paid cash of approximately $75,000,000 to ARN at closing
representing the purchase price for the 50% interest. CCR will
receive 50% of the proceeds from the sale of the six radio
stations. The purchase price was based upon an arms length
negotiation considering the potential cash flow generated by the
acquisition and consideration of the markets in which the stations
are located, management, personnel, and the overall operation of
the entity as a going concern.
Sources of funds utilized in completing this acquisition were
provided by a financing arrangements by and between Nations Bank of
Texas, as Agent and the registrant.
Item 2.(b)
The interest acquired by registrant's subsidiary were utilized
by ARN for the purposes of radio broadcasting as well as the
ancillary businesses referred to above. Registrant intends to
continue such uses.
Clear Channel Communications, Inc.
Form 8-K
Item 7.(a)
It is impracticable to provide the financial statements
required under Item 7.(a) as of the required filing date of Form
8-K. Such required financial statements will be filed under cover
of Form 8-KA as soon as available and in no event later than July
25, 1995.
Item 7.(b)
It is impracticable to provide the pro-forma financial
information required under Item 7.(b) as of the required filing
date of Form 8-K. Such required pro-forma financial information
will be filed under cover of Form 8-KA as soon as available and in
no event later than July 25, 1995.
Item 7.(c)
See index to exhibits on page 5.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Clear Channel Communications, Inc.
Date By
L. Lowry Mays, President
Date By
Herbert W. Hill, Jr.
Vice President/Controller and
Principal Financial Officer
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Clear Channel Communications, Inc.
Date May 26, 1995 By L. Lowry Mays
L. Lowry Mays, President
Date May 26, 1995 By Herbert W. Hill, Jr.
Herbert W. Hill, Jr.
Vice President/Controller and
Principal Financial Officer
<PAGE>
Clear Channel Communications, Inc.
Form 8-K
Index to Exhibits
Item 7.(c)
(a) 3.1 -- Articles of Incorporation, as amended, of
Registrant
(a) 3.2 -- Amended and Restated By-Laws of Registrant
(a) 4 -- Buy-Sell Agreement among Clear Channel
Communications, Inc., L. Lowry Mays, B. J. McCombs,
John M. Schaefer and John W. Barger dated May 31,
1977.
(g) 4.1 -- Revolving Credit and Term Loan Agreement, dated as
of October 1, 1984, by and among Clear Channel
Communications, Inc., The Signatory Banks Hereto,
and The Bank of New York, as Agent.
(g) 4.3 -- Amendment No. 1, dated as of August 25, 1986, to
the Revolving Credit and Term Loan Agreement, dated
as of October 1, 1984, by and among Clear Channel
Communications, Inc., The Signatory Banks thereto
and The Bank of New York as Agent.
(g) 4.4 -- Amended and Restated Credit Agreement by and among
Clear Channel Television, Inc., NCNB Texas National
Bank, Texas Commerce Bank and NCNB Texas National
Bank as administrative lender.
(g) 4.5 -- Amendment No. 2, dated as of December 31, 1986, to
the Revolving Credit and Term Loan Agreement, dated
as of October 1, 1984, by and among Clear Channel
Communications, Inc., the Signatory Banks thereto
and The Bank of New York, as Agent, as amended by
Amendment No. 1, dated as of August 25, 1986.
(g) 4.6 -- Amendment No. 3, dated as of December 27, 1988, to
the Revolving Credit and Term Loan Agreement, dated
as of October 1, 1984, by and among Clear Channel
Communications, Inc., the Signatory Banks and The
Bank of New York, as Agent, as amended by Amendment
No. 1, dated as of August 25, 1986, and Amendment
No. 2, dated as of December 31, 1986.
(g) 4.7 -- Amendment No. 4, dated as of December 31, 1988, to
the Revolving Credit and Term Loan Agreement, dated
as of October 1, 1984, by and among Clear Channel
Communications, Inc., the Signatory Banks and The
Bank of New York, as Agent, as amended by Amendment
No. 1, dated as of August 25, 1986, Amendment No.
2, dated as of December 31, 1986, and Amendment No.
3, dated as of December 27, 1988.
(g) 4.8 -- Amendment No. 5, dated as of July 14, 1989, to the
Revolving Credit and Term Loan Agreement, dated as
of October 1, 1984, by and among Clear Channel
Communications, Inc., the Signatory Banks thereto
and The Bank of New York, as Agent, as amended by
Amendment No. 1, dated as of August 25, 1986,
Amendment No. 2, dated as of December 31, 1986,
Amendment No. 3, dated as of December 27, 1988, and
Amendment No. 4, dated as of December 31, 1988.
(g) 4.9 -- Amendment No. 6 and Waiver No. 1, dated as of
September 30, 1989, to the Revolving Credit and
Term Loan Agreement, dated as of October 1,
1984, by and among Clear Channel Communications,
Inc. the Signatory Banks thereto and The Bank of
New York, as Agent, as amended by Amendment No. 1,
dated as of August 25, 1986, Amendment No. 2, dated
as of December 31, 1986, Amendment No. 3, dated as
of December 27, 1988, Amendment No. 4, dated as of
December 31, 1988, and Amendment No. 5, dated as
of July 14, 1989.
(g) 4.10 -- Amendment No. 7, dated as of March 31, 1990, to the
Revolving Credit and Term Loan Agreement, dated as
of October 1, 1984, by and among Clear Channel
Communications, Inc., the Signatory Banks thereto
and The Bank of New York, as Agent, amended by
Amendment No. 1, dated as of August 25, 1986,
Amendment No. 2, dated as of December 31, 1986,
Amendment No. 3, dated as of December 27, 1988,
Amendment No. 4, dated as of December 31, 1988,
Amendment No. 5, dated as of July 14, 1989, and
Amendment No. 6 and Waiver No. 1, dated as of
September 30, 1989.
(o) 4.11 -- Credit Agreement, dated as of September 30, 1994,
by and among Clear Channel Communications, Inc.,
Certain Lenders and Nationsbank of Texas, N.A. as
administrative lender.
(a)10.16 -- Incentive Stock Option Plan of Clear Channel
Communications, Inc. dated as of January 1, 1984.
(b)10.18 -- Radio Asset Purchase Agreement dated June 9, 1986,
by and between WHAS, Inc. and Clear Channel
Communications, Inc.
(b)10.19 -- Letter from George N. Gill, dated September 1,
1986, amending the Radio Asset Purchase Agreement
dated June 9, 1986, by and between WHAS, Inc. and
Clear Channel Communications, Inc.
(c)10.20 -- Television Asset Purchase Agreement dated December
30, 1988, by and between Michigan Energy, Inc. and
Clear Channel Television, Inc.
(d)10.22 -- Television Asset Purchase Agreement dated January
31, 1989, as amended by and between the Roman
Catholic Diocese of Tucson and Clear Channel
Television, Inc.
(e)10.23 -- Television Asset Purchase Agreement dated August
25, 1989, by and between Malrite of Jacksonville,
Inc. and Clear Channel Television, Inc.
(f)10.25 -- Television Asset Purchase Agreement dated July 31,
1990, by and between Channel 24, Ltd. Debtor in
Possession and Clear Channel Television, Inc.
(g)10.26 -- Station Affiliation Agreement between Fox
Broadcasting Company and Clear Channel Television,
Inc. for the carriage of programming over WPMI-TV,
Mobile, Alabama, dated June 13, 1989.
(g)10.27 -- Station Affiliation Agreement between Fox
Broadcasting Company and Clear Channel Television,
Inc. for the carriage of programming over WAWS-TV,
Jacksonville, Florida, dated August 16, 1989.
(g)10.28 -- Station Affiliation Agreement between Fox
Broadcasting Company and Clear Channel Television,
Inc. for the carriage of programming over KOKI-TV,
Tulsa, Oklahoma, dated December 28, 1989.
(g)10.29 -- Station Affiliation Agreement between Fox
Broadcasting Company and Clear Channel Television,
Inc. for the carriage of programming over KSAS-TV,
Wichita, Kansas, dated July 10, 1989.
(h)10.30 -- Television Asset Purchase Agreement dated January
27, 1992, by and between Chase Broadcasting of
Memphis, Inc. and Clear Channel Television, Inc.
(h)10.31 -- Radio Asset Purchase Agreement dated January 31,
1992, by and between Noble Broadcasting of
Connecticut, Inc. and Clear Channel Radio, Inc.
(h)10.32 -- Radio Asset Purchase Agreement dated April 19, 1992
by and between Edens Broadcasting, Inc. and Clear
Channel Radio, Inc.
(i)10.33 -- Radio Asset Purchase Agreement dated March 9, 1993,
by and between KHFI Venture, LTD. and Clear Channel
Radio, Inc.
(j)10.34 -- Radio Asset Purchase Agreement dated December 28,
1992, by and between Westinghouse Broadcasting
Company, Inc. and Clear Channel Radio, Inc.
(j)10.35 -- Radio Asset Purchase Agreement dated December 23,
1992, by and between Inter-Urban Broadcasting of
New Orleans Partnership and Snowden Broadcasting,
Inc.
(k)10.36 -- Television Asset Purchase Agreement dated August
19, 1993, by and between Television Marketing Group
of Memphis, Inc. and Clear Channel Television,
Inc.
(l)10.37 -- Radio Asset Purchase Agreement dated April 1, 1993,
by and between Capital Broadcasting of Virginia,
Inc. and Clear Channel Radio, Inc.
(m)10.38 -- Television Asset Purchase Agreement dated August
31, 1993 by and between Nationwide Communications,
Inc. and Clear Channel Television, Inc.
(n)10.39 -- Radio Asset merger Agreement dated March 22,
1994 by and between Metroplex Communications,
Inc., Metroplex Communications II, Inc.,
Metroplex/Robinson Broadcasting Co., Norman Wain,
Robert C. Weiss, David Ross, Charles Schaefer,
Lewis C. Fisher, Nina Wain, Leona Weiss, Norman
Wain as shareholders' agent and registrant.
(o)10.40 -- Radio Partnership Interest Purchase Agreement dated
April 5, 1994, by and between Cook Inlet
Communications, Inc. and WCC Associates and Clear
Channel Radio, Inc.
(p)10.41 -- Television Asset Purchase Agreement dated September
12, 1994 by and between Heritage Broadcasting
Company of New York, Inc. and Clear Channel
Television, Inc.
(q)10.42 -- Radio Asset Purchase Agreement dated November 17,
1994 between Noble Broadcasting of Houston Inc. and
Clear Channel Radio Inc.
10.43 -- Shareholders Agreement dated February 1995 between
Australian Provincial Newspapers Holdings Limited
and Clear Channel Radio Inc.
(a) -- Incorporated by reference to the similarly numbered
exhibits of the Company's Registration Statement on
Form S-1 (Reg. No. 2-89161) dated April 19, 1984.
(b) -- Incorporated by reference to the Registrant's Form
8-K dated September 15, 1986.
(c) -- Incorporated by reference to the Registrant's Form
8-K dated January 11, 1989
(d) -- Incorporated by reference to Registrant's Form 10-Q
dated March 31, 1989.
(e) -- Incorporated by reference to the Registrant's Form
8-K dated September 8, 1989.
(f) -- Incorporated by reference to the Registrant's Form
10-Q dated November 7, 1990.
(g) -- Incorporated by reference to the Company's
registration statement on Form S-2 dated July 30,
1991.
(h) -- Incorporated by reference to the Registrant's Form
8-K dated July 14, 1992.
(i) -- Incorporated by reference to the Registrant's Form
8-K dated March 23, 1993.
(j) -- Incorporated by reference to the Registrant's Form
10-Q dated May 12, 1993.
(k) -- Incorporated by reference to the Registrant's Form
8-K dated September 2, 1993.
(l) -- Incorporated by reference to the Registrant's Form
10-Q dated November 1, 1993.
(m) -- Incorporated by reference to the Registrant's Form
8-K dated October 27, 1993.
(n) -- Incorporated by reference to the Registrant's Form
8-K dated October 26, 1994.
(o) -- Incorporated by reference to the Registrant's Form
10-Q dated November 14, 1994.
(p) -- Incorporated by reference to the Registrant's Form
Form 8-K dated December 14, 1994
(q) -- Incorporated by reference to the Registrant's Form
Form 8-K dated January 13, 1995
EXHIBIT 22
Subsidiaries of Registrant, Clear Channel Communications, Inc.
Name State of Incorporation
Clear Channel Communications Texas
of Memphis, Inc.
Clear Channel Television, Inc. Nevada
Clear Channel Radio, Inc. Nevada
Clear Channel Management, Inc. Delaware
Clear Channel Radio Licenses, Inc. Nevada
Clear Channel Television Licenses, Inc. Nevada
Snowden Broadcasting of New Orleans, L.C. Texas
Clear Channel Holdings, Inc. Nevada
Clear Channel Metroplex, Inc. Nevada
Clear Channel Metroplex Licenses, Inc. Nevada
Clear Channel Real Estate, Inc. Nevada
CCR - Houston-Nevada, Inc. Nevada
CCC - Houston A M LTD Texas
APN BROADCASTING INVESTMENTS PTY LIMITED
("APN")
AUSTRALIAN PROVINCIAL NEWSPAPERS HOLDINGS LIMITED
("APN Holdings")
CLEAR CHANNEL RADIO INC.
("CCC")
CLEAR CHANNEL COMMUNICATIONS INC.
("CCC Inc")
APN BROADCASTING PTY LTD.
("the Company")
AUSTRALIAN RADIO NETWORK SHAREHOLDERS AGREEMENT
Allen Allen & Hemsley
Sydney
Ref: TGB 1060130
<PAGE>
AUSTRALIAN RADIO NETWORK SHAREHOLDERS AGREEMENT
AGREEMENT dated February 1995 between:
1. APN BROADCASTING INVESTMENTS PTY LIMITED (ACN 066 758 923)
incorporated in the Australian Capital Territory of 10th
Floor, 300 Ann Street, Brisbane, Queensland ("APN");
2. AUSTRALIAN PROVINCIAL NEWSPAPERS HOLDINGS LIMITED (ACN 008
637 643) incorporated in the Australian Capital Territory
of
10th Floor, 300 Ann Street, Brisbane, Queensland ("APN
Holdings");
3. CLEAR CHANNEL RADIO INC incorporated in Nevada, USA
("CCC");
4. CLEAR CHANNEL COMMUNICATIONS INC. incorporated in Texas,
USA
of San Antonio, Texas ("CCC Inc."); and
5. APN BROADCASTING PTY LTD (ACN 065 986 987) incorporated in
New South Wales of 10th Floor, 300 Ann Street, Brisbane,
Queensland ("the Company").
RECITALS
A. The Company, a wholly-owned subsidiary of APN and owner of
radio businesses, has negotiated and signed an agreement to
purchase radio station Gold 104FM, attached in Exhibit A.
B. The Company has negotiated an agreement to purchase radio
businesses from Australian Broadcasting Company Pty Ltd a
draft of which is attached in Exhibit B.
C. CCC Inc has long-standing expertise in the conduct of radio
businesses in the United States.
D. APN has invited CCC Inc to become a joint venture owner
with
APN of the Company, which CCC has agreed to do, by
subscribing equity and debt in the Company which will be
applied to retire existing debt and fund the completion of
the acquisitions described in Recitals A and B.
E. The general objective of the parties in entering into this
agreement is to facilitate the acquisition by the Company
of
a second radio network, and to amalgamate that network with
the Company's existing network.
F. The attainment of the objective described in Recital E will
require the Company to dispose of various AM radio
licences.
G. The parties have agreed that once the two networks have
been
merged, the merged network will be called Australian Radio
Network, and APN Broadcasting will be renamed Australian
Radio Network Pty Ltd.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires other
wise.
"A" Director means a Director appointed by the holder of issued
"A"
Shares.
"A" Shares means the "A" Class Shares of $1 each in the capital
of
the Company.
"APN's Bank" means any bank approved by CCC, such approval not to
be unreasonably withheld.
Articles means the articles of association substantially in the
form of the articles of association set out in Schedule 1 to be
adopted by the Company, as amended or replaced. Any reference~ to
an
Article is a reference to that article of the Articles.
Auditors means the auditors of APN Broadcasting.
Authorisation includes any consent, authorisation, registration,
filing, lodgement, permit, franchise, agreement, notarisation,
certificate, permission, licence, approval, direction,
declaration,
authority or exemption from, by or with any government or any
governmental, semi-governmental or judicial entity or authority
(including any self-regulatory organisation established under
statute or any stock exchange).
"B" Shares means the non-voting "B" Class Shares of $1 each in
the
capital of the Company.
Board means the Directors of the Company or those of them who are
present at a meeting of the Directors at which there is a quorum.
Business means the Company's business of owning and operating
Electronic Media businesses in South East Asia.
Business Day means a week day on which banks are open in Sydney,
Australia.
CCC's Bank means the agent for a syndicate of banks which agrees
to
provide financial accommodation to CCC Inc to enable it to
satisfy
CCC's obligations under this Agreement, or any other bank
approved
by APN, such approval not to be unreasonably withheld.
"C" Director means a Director appointed by the holder of issued
"C"
Shares.
"C" Shares means the "C" Class Shares of $l.00 each in the
capital
of the Company.
"Confidential Information" means all information of a Shareholder
or the Company (the Relevant Party) which is disclosed to or
observed by another party which is regarded by the Relevant Party
as confidential to it and which is so notified to the other
party,
including information relating to technology, processes,
products,
specifications, inventions or designs used or developed by the
Relevant Party, trade secrets and know-how and information of a
commercially sensitive nature. Confidential Information does not
include information which:
(a) at the time of the first disclosure to or observation by
the
other party, was already in the lawful possession of that
party in written form;
(b) is in or comes into the public domain otherwise than by
disclosure in breach of this Agreement; or
(c) becomes available to the other party from any other source
provided it was no acquired directly or indirectly from the
Relevant Party.
Converting Notes means converting notes issued by the Company
having the rights set out in Schedule 4.
Corporations Law means the Corporations Law of Australia.
Deed of Accession means a deed by which any new Shareholder will
agree to be bound by the terms of this Agreement, substantially
in
the form of set forth in Schedule 6.
Director means a person appointed to the office of Director of
the
Company under the Articles and in accordance with this Agreement
and includes any alternate Director duly appointed and acting as
a
Director.
Disclosure Letter means the letter to be given by APN to CCC
pursuant to clause 13.2(g).
Dispose in relation to any property means to sell, transfer,
assign, create a Security Interest over, declare oneself a
trustee
of or part with the benefit of or otherwise dispose of that
property (or any interest in it or any pan of it) including,
without limitation, in relation to a Share, to enter into a
transaction in relation to the Share (or any interest in the
Share)
(other than a transaction permitted by this Agreement and the
Articles or conditional on each other Shareholder consenting to
it
or waiving certain of its rights under this Agreement or the
Articles or as otherwise agreed by each Party) which results in a
person other than the registered holder of the Share:
(a) acquiring any equitable interest in the Share, including,
without limitation, an equitable interest arising under a
declaration of trust, an agreement for sale and purchase or
an option agreement or an agreement creating a charge or
other Security Interest over the Share; or
(b) acquiring any right to receive directly or indirectly any
dividends payable in respect of the Share; or
(c) acquiring any rights of pre-emption, first refusal or other
control over the disposal of the Share; or
(d) acquiring any rights of control over the exercise of any
voting rights or rights to appoint Directors attaching to
the
Share; or
(e) otherwise acquiring legal or equitable rights against the
registered holder of the Share which have the effect of
placing the person in the same position as if the person
had
acquired a legal or equitable interest in the Share itself.
dividend includes a bonus or other distribution in kind or in
cash.
Effective Date means the first date on which all of the
conditions
precedent described in Clause 2.1 have been satisfied.
Electronic Media means free to air and pay radio and television.
Group Company each mean any one of the following corporations:
(a) the Company; and
(b) each Subsidiary of the Company.
Holding Company has the meaning given in the Corporations Law.
Independent Expert means an independent expert determining a
dispute relating to this Agreement or a matter concerning this
Agreement in the manner set out in Clause 33.
Independent Newspapers plc means Independent Newspapers plc,
incorporated in Ireland, of Dublin, Ireland.
Loans means, in relation to a Shareholder, loans or financial
accommodation made or provided to the Company by that Shareholder
and by any Related Body Corporate of that Shareholder (in each
case
in accordance with this Agreement) and shall include loans
represented by Promissory Notes issued by the Company.
Management Accounts means the balance sheet set out in Exhibit C.
par~ means each of the Shareholders, the Company and any person
who
executes a Deed of Accession.
Preference Share means a redeemable preference share of any class
in the capital of the Company, having the rights set out in
Schedule 5.
Prime Rate means the rate determined to be the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/16th of 1%) of
the
bid rates displayed at or about 10.00 a.m. (Sydney time) on the
relevant day on the Reuters "BBSW" page for a term of 90 days,
plus
l~o, expressed as a yield percent per annum to maturity.
Promissory Notes means Promissory Notes issued by the Company on
the terms set forth in Schedule 3.
Related Body Corporate has the meaning given in the Corporations
Law, but on the basis that Subsidiary has the meaning given in
this
Agreement and that "body corporate" includes any entity including
a partnership and a trust.
Security Interest means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a bill of sale, mortgage, charge, lien, pledge,
trust or power by way of security for the payment of debt
or
any other monetary obligation or the enforcement of any
other
obligation and whether or not existing or agreed to be
granted or created.
Share means an ordinary share of whatever class in the capital of
the Company.
Shareholder means each party to this Agreement, whether or not it
holds Shares (excluding the Company) and each other party which
holds Shares, and if the context requires, shall mean a party and
all Related Bodies Corporate of that party.
South East Asia means all countries in the area bounded by (and
including) India to the west, China to the north-west, Japan to
the
north, Micronesia to the east (excluding Hawaii), New Zealand to
the south-east and Australia to the south.
Specified Proportion means, in relation to a Shareholder, 50% or
such other proportion as equates to the percentage shareholding
of
voting Shares of that Shareholder in the Company
(whether or not voting rights are suspended but excluding "B"
Shares if "B" Shares become entitled to vote), which for the
purposes of clause 10 shall be expressed as a fraction of ~e
issued
voting Shares adjusted if necessary for different proportional
holdings of non-voting equity and debt securities.
Subsidiary has the meaning given in the Corporations Law but so
that:
(a) an entity, including a partnership, will also be deemed to
be
a Subsidiary of a
company if it is controlled by that company
(expressions
used in this paragraph have
the meanings given for the purposes of parts 3.6 and
3.7
of the Corporations Law);
(b) a trust may be a Subsidiary, for the purposes of which a
unit
or other beneficial
interest will be regarded as a share;
(c) a corporation or trust may be a Subsidiary of a trust if it
would have been a
Subsidiary if that trust were a corporation; and
(d) the term "Subsidiary" when used in relation to any
Shareholder does not include the
Company.
Transfer Notice has the meaning given in Article 1.
Transferor means a Shareholder which proposes or is obliged to
transfer all or some of its Shares in accordance with this
Agreement and the Articles and refers to the Shareholder both
before and after registration of the relevant transfer of Shares.
1.2 Interpretation
Headings are for convenience only and do not affect
interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a Clause or Schedule is a reference to a
clause of or a schedule to this Agreement.
(f) A reference to an agreement or document (including, without
limitation, a reference to this Agreement) is to the
agreement or document as amended, varied, supplemented,
novated or replaced, except to the extent prohibited by
this
Agreement or that other agreement or document.
(g) A reference to a party to this Agreement or another
agreement
or document includes the party's successors, permitted
substitutes and assigns (and, where applicable, the party's
legal personal representatives).
(h) A reference to legislation or to a provision of legislation
(other than in the definitions of "Holding Company",
"Related
Body Corporate" and "Subsidiary" includes a modification or
re-enactment of it, a legislative provision substituted for
it and a regulation or statutory instrument issued under
it.
(i) A reference to conduct includes, without~ limitation, an
omission, statement and undertaking, whether or not in
writing.
(j) A reference to an "agreement" includes any undertaking,
deed,
agreement and legally enforceable arrangement whether or
not
in writing and a reference to a document includes an
agreement (as so defined) in writing and any certificate,
notice, instrument and document of any kind.
(k) A reference to "writing" includes a facsimile transmission
and any means of reproducing words in a tangible and
permanently visible form.
(l) A reference to any professional body includes the
successors
of that body.
(m) Unless the context requires otherwise, a reference to a
holder of a class of issued Shares means:
(i) if there is only one holder of issued Shares in that
class, that holder; and
(ii) if there is more than one holder of issued Shares in
that class, the holders of the majority of issued
Shares in that class.
(n) A reference to "dollars" and "S" is to Australian currency.
(o) A reference to a section is a reference to a section of the
Corporations Law.
1.3 Incorporation of Schedules
Each Schedule to this Agreement is incorporated by reference in
this Agreement but if there is any inconsistency between any
Schedule or Annexure (including the Articles) and any provision
of
this Agreement, the provision of this Agreement prevails to the
extent of the inconsistency.
1.4 Consents or Approvals
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or
the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
2. CONDITIONS PRECEDENT
2.1 Agreement is conditional
This Agreement and the obligations of the parties under
this
Agreement (other than this Clause 2 and Clauses 1, 11, 29,
30, 31 and 32,) are subject to the prior satisfaction of
the
following conditions precedent:
(a) (Joint foreign investment approval) the occurrence of
one of the following:
(i) CCC and APN each receive a notice from the
Australian Treasurer to the effect that there
is
no objection to the proposed acquisition of
Shares and Preference Shares in the Company by
CCC and APN, and the Company receives a notice
from the Australian Treasurer to the effect
that
there is no objection to the proposed
acquisition of shares from Australian
Broadcasting Company Pty Ltd under the
Commonwealth Government's foreign investment
policy. (The applications must be
interdependant, so that this condition will not
be fulfilled unless notice is received with
respect to all acquisitions described in this
paragraph (i), and the notices must be either
unconditional or impose conditions which are
acceptable to each of the parties respectively
in their sole discretion. CCC acknowledges that
APN will not accept conditions which are
unacceptable to APN's Bank.);
(ii) the period provided under the Foreign
Acquisitions and Takeovers Act 1975, during
which the Treasurer may make an order under
section 18 or an interim order under section 22
in relation to each of those acquisitions,
elapses without such an order being made; or
(iii) if interim orders are made under section 22,
the
subsequent period for making final orders
prohibiting the relevant acquisition elapses
without final orders being made;
(b) (Acquisition of Albert) the execution of the sale
agreements for the acquisitions described in Recital
B
on terms approved by CCC and APN;
(c) (Completion) notice from APN's solicitors that
completion of the acquisition described in Recital A
or
the acquisition described in Recital B is ready to
proceed forthwith.
2.2 Responsibility for procedure
CCC, APN and the Company shall each be responsible for obtaining
foreign investment approval. The Company shall be responsible for
obtaining satisfaction of the conditions precedent in paragraphs
2.1(b) and (c).
2.3 Notification of satisfaction of conditions
Each Shareholder shall notify each other party when it is
satisfied
that all of the conditions precedent set out in Clause 2.1 have
been satisfied. No Shareholder may waive any of those conditions
precedent without the consent of each other Shareholder which
consent must not be unreasonably withheld or delayed.
2.4 Termination on failure of conditions
If any of the conditions precedent in Clause 2.1 is not satisfied
(or waived by the Shareholders), or if the condition referred to
in
clause 2.1(c) is satisfied but completion of the acquisition
referred to in the notice does not take place, prior to 30 June
1995 or any other dale agreed between the Shareholders then any
Shareholder may, within 7 days after that dale or notice,
terminate
this Agreement by notice to each other party.
2.5 Consequences of termination
On termination under Clause 2.4, this Agreement will be deemed to
be rescinded from the start and of no further effect and no party
will have any further obligation to any other party except:
(a) for any breach of Clauses 2.2 and 11; and
(b) APN will purchase from CCC the Converting Notes and
Promissory Notes held by CCC at the paid up value.
3. ACQUISITION OF INTERESTS IN THE COMPANY
3.1 Capital Structure and CCC Subscription
Upon execution of this agreement:
(a) (general meeting) APN will procure the holding of
general meetings of the Company for the purposes
referred to in paragraphs 3.1(b) (c) (d) and (h).
(b) (Memo and Articles) the Articles will be adopted in
substitution for the existing articles of association
of the Company and the authorised capital will be
increased 1,000,000,000 Ordinary Shares and
100,000,000
Preference Share.
(c) (unissued Shares) 499,000,000 of the unissued Shares
will be classified as "A" Shares, 1,000,000 of the
unissued shares will be classified as "B" Shares a~i
499,000,000 of the unissued Shares will be
classified
as "C Shares.
(d) (reclassification of Shares) the two issued Shares in
the Company held by AP~ shall be reclassified as "A"
Shares.
(e) CCC will subscribe for and pay up in full 2
Converting
Notes in the capital of Company, which will convert
to
~C" Shares on the Effective Date.
(f) CCC will subscribe for Converting Notes and agrees to
purchase Promissory Notes to be issued by the
Company,
having an aggregate face value of $101.249.99.
$57.499.998 of Convening Notes and $43.750.000 of
Promissory Notes to be paid up in cash in accordance
with the provisions of Clause 3.4 and otherwise
subject
the terms set out in Schedules 3 and 4.
(g) CCC will provide 2 stand-by letters of credit in the
amounts of $36.000.000 and $29,000,000 respectively
to
the Company from a bank acceptable to APN's Bank for
the purposes of securing its obligations under
paragraph (f) in the manner require~ by APN's Bank
and
on the terms described in Schedule 2. CCC and the "C"
directors will nol abstain from or vole against any
decision or resolution of the Company to draw funds
or
authorise funds to be drawn on the letters of credit.
(h) The Company will assign the benefit of the letter of
credit in the amount of $36,000,000 to APN's Bank.
(i) The Company will issue the Converting Notes described
in paragraphs 3.1(e) and (f) and allot the n C"
Shares
and Preference Shares to issue on conversion. 1~DC
Company will also allot the shares described in
paragraph 3.2(c) to issue on t~e Effective Date.
(j) (Name change) The Company will change its name to
Australian Radio Network~ Pty Ltd as soon as
practicable.
(k) (proprietary companies) The Company will convert
every
Group Company to a proprietary company.
3.2 Board appointments and APN Subscription
On the Effective Dale:
(a) ("A" Directors) APN shall appoint the "A" Directors
under this Agreement, notify the Company as to which
one of those Directors appointed will be Chairman of
the Board, and procure the resignation of all other
directors of the Company;
(b) ("C" Directors) CCC shall appoint the "C" Directors
under this Agreement;
(c) (Capitalization of Debt) APN will subscribe for, and
the Company will issue to APN:
(i) 28,749,998 ordinary "A" Shares al par;
(ii) 1 non-voting "B" Class Share at par; and
(iii) 287,500 Preference Shares at par plus a premium
of $99 per share,
by capitalisation of $57.499,999 of existing unsecured debt owing
by the Company to APN.
(d) (Promissory Notes) APN agrees to purchase Promissory
Notes issued by the Company with a face value of
$43.750,000, to be paid up in cash in accordance with
the provisions of Clause 3.5 and otherwise subject to
the terms set out in Schedule 3;
(e) (Application of Funds) The Company will apply the
funds
received pursuant to Clauses 3.4(a) and 3.5(a) first
to
the repayment of unsecured debt owing to APN and
second
to the payment of its obligations under the
acquisition
contract the completion of which satisfied the
condition precedent described in clause 2.1(c). The
Company will apply funds received pursuant to Clauses
3.4(b) and 3.5(b) firs to payment of its obligations
under the contracts referred to in Recital A and
Recital B, and second to working capital.
3.3 Board Meeting
Following the completion of the matters referred to in Clause
3.2,
the Shareholders shall procure that a meeting of the Board is
convened and that there are passed at that meeting resolutions in
the following order:
(a) (auditors) appointing Price Waterhouse as Auditors on
the basis that the appointment will be reviewed by
the
Shareholders within 6 months;
(b) (secretary and public officer) appointing Alexander
W.
Bathgate Esq. as secretary and public officer of the
Company;
(c) (financial year) adopting 31 December as the
Company's
balance date for accounting purposes with its first
financial year commencing on the date of its
incorporation and terminating on 31 December 1994.
3.4 Payments and Conversion by CCC
Subject to Clause 3.7 and on condition that:
(i) the matters described in Clause 2.1 have
occurred;
(ii) debt owing by the Company to APN has been
capitalised in accordance with Clause 3.2(c);
(iii) APN's Bank has advised CCC in writing that it
will release the Group Companies from all
obligations to APN's Bank forthwith upon
payment
by CCC to the Company of $36,000,000;
(iv) Group Companies are released from all other
guarantees and financial obligations to APN and
its related bodies corporate; and
(v) there is no material breach of the
representations made by APN in clause 13.1,
provided that if completion does not take place as contemplated
in
clause 2.1(c) or obligations are not discharged as contemplated
in
sub-paragraph (iii) above, the conditions will be deemed nol to
have been satisfied and no payment obligation will be deemed to
have arisen:
(a) CCC agrees to pay to the Company on the Effective
Date
the sum of $101,249.998
(i) $29,000,000 (if the completion of the
acquisition described in Recital ~A' satisfies
clause 2.1(c)); or
(ii) $7,250,000 (if the completion of the
acquisition
described in Recital B satisfies clause
2.1(c)),
by paying up Converting Notes with a face value of
$57,499,998 and purchasing Promissory Notes with a
face
value of the balance, (which Convening Notes will
convert on that date immediately upon payment to
28,749,998 "C" Shares at par credited as fully paid
and
287,500 Preference Shares issued at par plus a
premium
of $99 per share, also credited as fully paid).
(b) CCC agrees to pay to the Company the sum of
$101,249,998 less the amount paid pursuant to
paragraph
3.4(a) by purchasing Promissory Notes having a face
value of that amount on the later of the Effective
Dale
and the dale of the last to complete of the contracts
described in Recital A and Recital B;
3.5 Payments by APN
Subject to Clause 3.7:
(a) APN agrees to pay to the Company on the Effective
Date
an amount equal to the sum paid by CCC pursuant to
paragraph 3.4(a) less $57,499,998 by purchasing
Promissory Notes having a face value of that amount;
(b) APN agrees to pay to the Company the sum of
$43,750,000
~ the amount paid pursuant to paragraph 3.S(a) by
purchasing Promissory Notes having a face value of
that amount, on the date of the last to complete of
the
contracts described in Recital A and B;
(c) APN agrees to pay to the Company the sum of
$14.500,000
by way of unsecured loan, repayable on the Effective
Date, if completion of the contract described in
Recital A occurs prior to the Effective Date;
3.6 Effective Date
(a) Profits
APN will be entitled to all profits of the Company and its
Subsidiaries until the Effective Date, excluding any
profits
on sale of radio stations.
(b) Dividend
APN and CCC agree to declare a dividend on the ~A~ Shares only
equivalent to the whole of the profits (excluding any profits on
sale of radio stations) derived by the Company and its
subsidiaries
until the Effective Dale.
(c) Conduct of Business
APN shall ensure that no Group Company does any of the following
things during the period from the dale of this Agreement to the
Effective Date (inclusive), without the prior consent of CCC.
(i) (Conduct of business) Manage and conduct its
business other than in the ordinary and usual
course and in a manner consistent with past
practice.
(ii) (No disposals) Except for disposals of radio
stations to ensure compliance with the
Broadcasting Services Act, disposals of trading
inventories and payment of trade debtors in the
ordinary and usual course of business, dispose
of, create any Encumbrance over, or declare
itself trustee of any asset having a value in
excess of $500,000 or assets having an
aggregate
value in excess of $1,000,000.
(iii) (No acquisitions) Except for acquisitions
contemplated by this Agreement and acquisitions
of inventories in the ordinary and usual course
of business, acquire any asset or authorise any
capital expenditure having a value in excess of
$500,000 or assets or capital expenditure
having
an aggregate value in excess of $1,000,000.
(iv) (No new issues) Allot or issue or authorise the
issue of any share or loan capital or
securities
or options or warrants or other rights
convertible into share or loan capital.
(v) (No distributions) Declare or pay any dividend,
make any other distribution of its profits,
reduce its capital or buy back any of its
shares, except that Group Companies may declare
and pay cash dividends from retained and
capital
profits for the period to the Effective Date.
(vi) (No resolutions) Amend or alter its memorandum
or articles of association, increase, reduce or
alter its share capital, change its name or
pass
any special resolution.
(vii) (No employee changes) Make or agree to make any
alteration to the remuneration or terms of
employment or provide any superannuation
payment
or pay any bonus or retiring allowance to any
employee, consultant or director, except in the
ordinary course of business or as required by
law.
(viii) (No liabilities) Enter into or make any
material alteration to any long term
contract or arrangement, incur any debts
or liabilities (actual or contingent)
exceeding $500,000, guarantee or
indemnity
or become responsible for the obligations
of any person that is not a member of the
Group, pay, discharge or settle any claim
or dispute or relinquish any agency or
distribution agreements or agreements for
supply or sale, except in the ordinary
course of business or as contemplated by
this Agreement.
(d) Group obligations
APN Holdings will procure that all Group Companies obligations to
parent companies are discharged on Effective Date.
3.7 Proceeds from Disposals
All proceeds of disposals of radio stations (by sales of assets
or
shares in the owners of radio stations) by the Company or its
Subsidiaries received prior to the Effective Date will bc applied
to the repayment of unsecured debt owing to APN. An amount equal
to
one half of the total of all such receipts ("the Disposal
Deduction") will be deducted from the payment obligations of each
of CCC and APN under paragraphs 3.4(b) and 3.S(b) respectively,
and
to the extent that the Disposal Deduction exceeds each of the
payment obligations, the balance will be deducted from the
payment
obligations of each of CCC and APN under paragraphs 3.4(a) and
3.5(a) respectively.
4. BUSINESS AND MANAGEMENT OF COMPANY
4.1 Conduct of the Company's business
Each Shareholder (insofar as it lawfully can do so) shall
exercise
its powers in relation to the Company to ensure that:
(a) The Company carries on and conducts the Business and
each other Group Company carries on and conducts its
business in a proper and efficient manner in
accordance
with sound business practice and for its own benefit;
and
(b) The Company performs and complies with all
obligations
on its part under this Agreement.
4.2 Scope of Company Business
Unless the Shareholders otherwise agree, the business of the
Company will be limited to the conduct, maintenance, improvement
and extension of the Business.
4.3 General policy determined by Directors
The Board will be responsible for the overall direction and
control
of the management of the Company and the formulation of the
policies to be applied in the conduct of the Business.
4.4 Ongoing management responsibility
Subject to Clause 4.3 and the Articles, an executive committee
comprising one nominee of the holder of the "A" Shares, one
nominee
of the holder of the ~C" Shares and the chief executive officer
of
the Company shall be responsible for the ongoing operation of the
Business. Any disagreement amongst the Shareholder members of the
executive committee shall be referred to the Board.
4.5 "A" Directors
The holder of the issued "A" Shares is entitled to appoint 3
Directors under Article 68.
4.6 "C" Directors
(a) Subject to paragraph 4.6(b), the holder of the issued
"C" Shares is entitled to appoint 4 Directors under
Article 68.
(b) The holder of the issued "C" Shares may by notice to
the Company~ relinquish the entitlement~ to appoint 2
of those 4 Directors and subscribe for a number of
"B'
Shares equal to or one more than the number of B
Shares
held by the holder of the issued "A' Shares The
holder
of the "A" Shares will procure the issue of B Shares
accordingly. The Company will, at the request of CCC,
issue a converting note on similar terms to the
Converting Notes described in Schedule 4, except that
tb~ converting note will convert into one "B" Share
on
the day before the fifth anniversary of the date of
this Agreement, any Directors nominated by CCC i~
excess of 2 shall be deemed to have resigned on that
date, and the converting nol will be deemed to have
been converted on the earlier exercise by CCC of its
entitlement under this clause 4.6(b).
4.7 Nominee Directors
A Director appointed by the holder of a class of issued Shares
may
have regard to and represent the interests of that appointor and
may act on the wishes of that appointor in performing any of his
or
her duties or exercising any power, right or discretion as a
director in relation 10 the Company, except in any particular
case
where no honest and reasonable director could have formed the
view
that, in so doing, the Director was acting in good faith in the
best interests of the Company as a whole. A Director may disclose
to his or her appointor all matters of which the Director becomes
aware as a director or as a member of the executive committee.
4.8 Board meetings
The Directors shall meet quarterly or more frequently as
requested
by any one A Director or one C Director. Unless otherwise agreed
by
at least one A Director and one C Director:
(a) at least seven days' notice must be given to each
Director of all meetings of the Board. Each notice of
meeting must contain, among other things, an agenda
specifying in reasonable detail the matters to be
discussed at the relevant meeting~ and must be
accompanied by any relevant papers for discussion at
that meeting.
(b) meetings may be held in person or by any form of
instantaneous communication in which all attending
Directors can participate simultaneously.
(c) one "A" Director and one "C" Director shall form a
quorum.
(d) on any resolution of Directors, the "A" Directors
collectively shall have two votes and the "C"
Directors
collectively shall have two votes (no matter how many
of such Directors vote).
4.9 Chairman
(a) Despite anything to the contrary in the Articles:
(i) for the period of one year commencing on the
date of this Agreement the Chairman of the
Board
shall be an "A" Director nominated by the
holder
of the issued "A" Shares;
(ii) for the following one year the Chairman shall
be
a "C" Director nominated by the holder of the
issued "C" Shares; and then
(iii) the Chairman will alternate every year between
being an "A" Director nominated by the holder
of
the issued "A" Shares and a "C" Director
nomina~ed by the holder of the issued "C"
Shares.
(b) Despite anything to the contrary in the Articles, if
the Chairman of the Board is n-~: present at any
meeting of the Board, a Director appointed by the
Shareholders who appointed the then current Chairman
present at that meeting shall act as Chairman for the
purpose of that meeting.
(c) The Chairman will not have a casting vote.
4.10 Matters for Board Approval
Subject to any contrary decision of the Board following a review
of
this clause 4.10 which shall take place within 6 months (or such
longer time as the parties agree) after the date of this
Agreement,
the Company shall not, and shall ensure that each Group Company
does not take any action, pass any resolution or make any
decision
in respect of any financial or operating policy of the Company or
any Group Company, including the following matters, except with
the
consent of at least one "A" Director and at least one "C~
Director:
(a) (arm's length transactions) the making, variation or
termination of a contract or arrangement (whether
legally binding or not) by a Group Company with any
of
its directors or a Shareholder or with an associate
(within the meaning of Section 13 of the Corporations
Law) of a director of a Group Company or a Related
Body
Corporate of a Shareholder;
(b) (employment and Directors' contracts) the
appointment,
removal or conditions of employment of a director,
secretary or senior employee (meaning an employee
whose rate of gross contractual salary is more than
the
threshold determined by the Board from time to time)
of
a Group Company (other than the appointment or
removal
of a Director of the Company);
(c) (material contracts) the entering into by a Group
Company of a material contract or arrangement outside
the normal course of its business;
(d) (Disposals) a transaction or series of related
transactions (whether at one time or over a period of
time) involving the sale or other Disposal of any
capital assets of a Group Company for a total price
equal to or exceeding the lesser of $200,000 and 1%
of
the net assets of the Company as shown in the latest
audited consolidated accounts of the Company (for
these
purposes, an asset is deemed to be a "capital asset"
if
it would be treated as such in accounts prepared in
accordance with accounting principles generally
accepted in Australia);
(e) (capital expenditure) the incurring of a material
expenditure or liability of a capital nature by a
Group
Company (including, for this purpose, the acquisition
of any asset under lease or hire purchase) for a
total
amount equal to or exceeding the lesser of $200,000
and
1% of the net assets of the Company (calculated in
the
manner described in paragraph 4.10(d)) other than in
the ordinary course of business;
(f) (financial indebtedness) the incurring or repayment
of
any financial indebtedness by a Group Company. For
this
purpose, ~financial indebtedness~ means any
indebtedness, present or future, actual or contingent
in respect of money borrowed or raised or any
financial
accommodation and the Shareholders acknowledge the
terms of a negative pledge which prohibits Group
Companies from incurring additional indebtedness
above
the level of Group indebtedness at the Effective Date
given by CCC in connection with the acquisition of
Shares in the Company;
(g) (Security Interests) the creation of a Security
Interest over any assets of a Group Company except
for
repairers', workmens', bankers', or solicitors' liens
created in the ordinary course of business or
statutory
Security Interests which arise or subsist other than
as
a result of default or omission by that Group
Company;
(h) (third party credit or guarantees) the lending of
money
or provision of financial accommodation to any parson
(other than by way of deposit with a hank or other
institution the normal business of which includes the
acceptance of deposits) or the giving of any
guarantee
or indemnity in respect of the obligations of any
other
person other than in the ordinary course of its
business;
(i) (securities issue) the creation, allotment or issue
of
shares in the capital of a Group Company or of any
other security or the granting of an option or right
to
subscribe in respect of those shares or convert any
instrument into those shares;
(j) (distributions) the payment or declaration by the
Company of a dividend or other distribution on
account
of Shares in the Company except in accordance with
Clause 7;
(k) (investments) the acquisition by a Group Company of
any
share capital or other securities or of an interest
in
a corporation or trust or the entering into of any
partnership or joint venture by a Group Company;
(l) (cessation or change in business) the cessation of
any
business operation of a Group Company or a material
change in the nature or geographical area of the
business of a Group Company;
(m) (legal proceedings) the commencement or settlement of
any legal, arbitration or other proceedings (other
than
routine debt collection or workers compensation
proceedings) which are material in the context of the
business of a Group Company;
(n) (tax claims) the making of any claim, disclaimer,
surrender, election or consent by a Group Company of
a
material nature for tax purposes;
(o) (delegation) the appointment of a managing director
of
a Group Company or the delegation of any power or
authority of the directors of a Group Company to an
executive director or committee of directors or to
any
other person (other than the executive committee
appointed pursuant to clause 4.4);
(p) (broadcasting licences) the acquisition, sale or
surrender of any broadcasting licence, any
application
for a broadcasting licence and any response to any
query or inquiry by the Australian Broadcasting
Authority or its successor;
(q) (format changes) any significant change to the
programming format of any radio or television station
owned or operated by a Group Company;
(r) (public announcements) subject to clause 11.4 the
terms
of any public announcement by any Group Company or
Shareholder concerning the Business; and
(s) (budgets) the adoption of budgets described in clause
5.1.
4.11 Shareholder approvals
The Shareholders shall procure that no action is taken or
resolution passed by the Company in respect of the following
matters except with the consent of the holders of each class of
issued Shares:
(a) (memorandum and articles) the making of any amendment
to its memorandum or articles of association or the
modification or abrogation of any rights attached to
any class of its Shares whether issued or unissued;
(b) (reduction of capital) the reduction of its capital
(including, without limitation, a purchase of its
Shares);
(c) (winding up) the making of an application or the
commencement of any proceedings or the taking of any
other steps for the winding up, dissolution, or
appointment of an administrator of the Company (other
than in accordance with clause 10) or the entering
into
by the Company of an arrangement, compromise or
composition with or assignment for the benefit of its
creditors, a class of them or any of them;
(d) (auditors) any change in the Auditors.
4.12 Directions by Shareholders
Subject to the provisions of this Agreement, the Company will act
in accordance with the lawful directions of a Shareholder (3
business days notice of which has been given to the other
Shareholder) in the absence of a veto by the other Shareholder.
4.13 Business Enhancement
The Shareholders acknowledge that they will each work towards
enhancing the Business by jointly working on all operational and
strategic issues and, without limiting the generality of this
clause or the role of either Shareholder, the Shareholders will
contribute the benefits of their particular strengths, including:
(a) CCC Inc's industry and management expertise;
(b) APN Holdings' local capability and contacts to
explore
expansion of the Business through acquisition.
5. BUDGETS & FINANCIAL INFORMATION
5.1 Annual budgets
(a) Before the commencement of each financial year of the
Company, the Company shall prepare and submit to the
Directors for approval a detailed draft operating
budget on a station by station basis for the Company
for that next financial year. The budget must be on
a
calendar month basis and must include estimated major
items of revenue, expenses and capital expenditure
and
be accompanied by a cash-flow forecast and a balance
sheet showing the projected position of the Company
as
at the end of that next financial year.
(b) The Board shall consider and vote on each budget
before
the commencement of the financial year to which it
relates. The Board may approve, a budget with or
without amendment, and give conditional or
unconditional approval of any item in the budget.
(c) The Company may, if at any time circumstances require
it, prepare a revised or supplementary budget and
submit it to the Directors for approval at a meeting
of
the Board convened before the proposed implementation
date of the revised or supplementary budget.
5.2 Financial information
The Company shall provide to each Shareholder:
(a) (unaudited management accounts) as soon as
practicable
(and in any event not later than 21 days) after the
end
of each calendar month, unaudited management accounts
which must include a detailed profit and loss
account,
balance sheet and cash-flow statement an analysis of
sales and other revenues, a review of the budget
together with a reconciliation of results with
revenue
and capital budgets for the corresponding month and
(if
so required by the Board) a statement of the source
and
application of funds for that month;
(b) (weekly operating figures) on a weekly basis, weekly
sales figures and abnormal operating items;
(c) (annual accounts) as soon as practicable (and in any
event not later than 60 days) after the end of each
of
its financial years, copies of the audited balance
sheet and profit and loss account of the Company (on
a
consolidated basis); and
(d) (additional information) any other information the
Shareholders may at any time reasonably require as to
any matter relating to the business or financial
condition of the Company or of any other Group
Company.
5.3 Accounting principles
The Company shall:
(a) keep books of accounts and make true and complete
entries in them of all its dealings and transactions;
and
(b) ensure that each balance sheet, statement and account
provided under Clause 5.2:
(i) complies with:
(A) accounting principles and practices
generally accepted in Australia
consistently applied, except to the
extent
disclosed in them; and
(B) all applicable laws; and
(ii) gives a true and fair view of its consolidated
state of affairs and the result of its
consolidated operations, at the date, and for
the period ending on the date, to which those
statements are prepared.
5.4 Objectives of the Pa~ties
(a) APN's objectives in relation to the Company are:
to expand its business in the Electronic Media field
in
Australia, New Zealand, and South East Asia; and
to maximise APN Holdings' earnings per share in the
short and long term.
(b) CCC's objectives in relation to the Company are:
strategically to establish an Electronic Media
presence
in Australia, New Zealand, and South East Asia and to
expand upon it; and
financially to maximise after-tax cash-now from
operations.
(c) APN and CCC recognise a possible discrepancy between
APN's financial objectives (maximising earnings per
share) and CCC's financial objectives (maximising
after-tax cash flow per share). The parties agree to
give ample and due consideration to all issues where
these differing objectives may have a bearing on
operational and financial decision making and if
necessary, will negotiate a compromise position in
good
faith.
(d) In no event shall any financial or operating decision
of the Company be inconsistent with the attainment of
any objective of the Shareholders described in this
clause, as it may be amended from time to time.
(e) APN and CCC will ensure that they each achieve the
optimum accounting treatment of their respective
interests in the Company. In furtherance of this
clause:
(i) CCC, having the entitlement described in clause
4.6(b), agrees and will procure its nominated
Directors to do all things necessary to amend
the rights attaching to "B" Shares so that "B"
Shares become voting shares, if requested by
APN, (provided that both Shareholders retain an
ability to regain equal voting rights); and
(ii) the number of tiers of operating Group
Companies
will be reduced on the reasonable request of
CCC.
6. FINANCING OF COMPANY
6.1 Use of subscription money
The subscription money referred to in clause 3 shall be applied
by
the Company solely for the purposes described in clause 3.2(e).
6.2 Further financing
Any capital in addition to that to be subscribed under Clause 3.4
which is required by the Company shall be provided by the
Shareholders by way of subscription for securities of the Company
in their Specified Proportions, except to the extent that the
requirement is agreed to be funded by means of overdraft or other
borrowings or financial accommodation from third parties or other
agreement is made for the purposes of Clause 12.3. Any amount
required shall be provided or guaranteed by the Shareholders in
their Specified Proportions subject to unanimous consent.
6.3 Shareholder Loan terms
Any capital provided to the Company by the Shareholders by way of
loan shall be provided on terms to be agreed between the
Shareholders, provided that all such loan capital, including
money
by way of principal, interest, fees, costs, guarantees,
indemnities, charges, duties or expenses or payment of liquidated
or unliquidated damages under or in connection with the terms
upon
which loan capital is provided or as a result of a breach or
default of those terms, shall be subordinated so that:
(a) No demand shall be made by a Shareholder for payment
of
the whole or any part of such moneys except with the
consent of the other Shareholder, APN's Bank, and
CCC's Bank, and any secured creditor of the Company;
(b) Any demand made in contravention of this clause shall
be deemed, as between the Shareholders and the
Company,
never to have been made; and
(c) No repayment of such moneys shall be made to a
Shareholder unless there is at the same time payment
to
the other Shareholders of an amount which represents
the same proportion of the total of such moneys owing
to each other Shareholder.
6.4 No obligation on winding up
The obligations of the Shareholders under this Clause 6 to
provide
further capital (whether debt or equity) to the Company or to
give
any guarantee or indemnity for any liability or obligation of the
Company terminate on the commencement of the winding-up of the
Company.
6.5 No other obligation to provide capital
The Shareholders will not provide any capital (whether debt or
equity) to the Company or to give any guarantee or indemnity in
respect of any of the Company's liabilities except as provided in
Clauses 3.4, 6.2 and 6.6.
6.6 Failure to provide loan or share capital
The following provisions apply if a Shareholder ("Defaulting
Shareholder") fails to provide when due the whole or any part of
Loan or Share capital as required by this Clause 6 in an amount
which exceeds ~250,000 and which was previously agreed by the
Shareholders to be provided.
(a) The Company immediately shall give notice (a
"Contribution Notice") to:
(i) the Defaulting Shareholder;
(ii) each person identified in writing by the
Defaulting Shareholder as having a Security
Interest in the Defaulting Shareholder's
Shares;
and
(iii) each other Shareholder ("Non-Defaulting
Shareholder")
of that failure and the nature and amount of the
shortfall (an "Unpaid Sum") and shall request payment
of the shortfall in accordance with paragraph (b).
(b) Each Non-Defaulting Shareholder may make up the
Unpaid Sum (if more than one Non-Defaulting
Shareholder, pro rata between them in the
proportions that their respective Specified
Proportions at the date of service of the
Contribution Notice bear to the aggregate of
their Specified Proportions at the date of
service of the Contribution Notice (the
"Proportionate Unpaid Sum")) by providing
capital:
(i) in the name of the Non-Defaulting
Shareholder; and
(ii) in the same manner and form as was
required in respect of the relevant
Unpaid
Sum (and, subject to paragraph (c), on
payment in full of the Unpaid Sum under
this paragraph (b), as between the
Company
and the Defaulting Shareholder, that
Defaulting Shareholder will be deemed to
have paid the Unpaid Sum to the Company).
(c) The voting rights on Shares held by a
Defaulting
Shareholder in the Company shall be suspended,
the Non-Defaulting Shareholder will constitute
a
quorum at any general meeting of the Company,
Directors appointed by Non-Defaulting
Shareholders shall be deemed to constitute a
quorum and have a majority of votes that may be
cast at a Directors meeting, and the provisions
of clauses 4.10, 4.11 and 4.12 will be
suspended
from the date 7 days after the Contribution
notice is given unless and until an amount
equal
to the Unpaid Amount is paid by the Defaulting
Shareholder to the Company (or to the
Defaulting
Shareholders if payment has been made pursuant
to paragraph 6.6(h)).
(d) This Clause 6.6 does not affect any right or
remedy that a Shareholder may have in respect
of
any amount which a Defaulting Shareholder has
failed to pay, whether or not that amount is
contributed by the Shareholder under paragraph
6.6(b) including. without limitation, its
rights
under Clause 9.
(e) If a Defaulting Shareholder pays an amount
equal
to the Unpaid Amount to a Non-Defaulting
Shareholder who made a payment under paragraph
6.6(b) the Non-Defaulting Shareholder will
transfer to the Defaulting Shareholder all
securities issued to it in respect of the
payment made under paragraph 6.6(b).
(f) If a Shareholder fails to make a payment in
full
in accordance with its obligations under Clause
3, the other Shareholder shall be entitled,
until the default is remedied and without
prejudice to its rights under Clause 9, to
exercise the votes, receive the dividends, and
receive the proceeds on a winding up of a
company, in respect of that number of voting
Shares held by the Defaulting Shareholder
which,
when added to the number of voting shares held
by the other Shareholder, represents a
proportion of the total number of issued voting
shares equivalent to the proportion which all
monies paid or capitalised under Clause 3 by
the
other Shareholder bears to the total monies
paid
or capitalised by the Shareholders under Clause
3 at the time of default and from time to time
thereafter.
6.7 Interest on Unpaid Sums
(a) The amount of each Unpaid Sum bears interest during
the
period it remains due and unpaid by the Defaulting
Shareholder at the rate equal to two percentage
points
above the Prime Rate.
(b) Interest paid under this Clause 6.7 may not be
considered as having been paid towards meeting a
Defaulting Shareholder's obligations in respect of
the
Unpaid Sum. Interest must be paid by the Defaulting
Shareholder to the Company or the Non-Defaulting
Shareholder or Shareholders which has or have made up
the Unpaid Sum under Clause 6.6(b) (if more than one,
pro rata between them in the proportion that their
respective Proportionate Unpaid Sums bear to the
Unpaid
Sum).
6.8 Financing losses to be borne in Specified Proportions
If a Shareholder:
(a) suffers any loss in relation to a Loan or other
financial accommodation made or provided to the
Company
or incurs any actual liability under any joint or
several or joint and several guarantee or indemnity
given by it to any third party for any
liability of the Company; and
(b) has made that Loan or provided that financial
accommodation or given that guarantee or indemnity in
accordance with this Agreement or with the written
consent of the other Shareholders,
the Shareholders shall make contributions to each other as may be
necessary so that the loss or actual liability is borne by the
Shareholders registered as the holders of Shares at the time the
claim for contribution is made in their Specified Proportions at
that time and each Shareholder shall indemnify each other
Shareholder accordingly. This Clause 6.8 does not apply to an~
liability under a guarantee or indemnity attributable to an
unauthorised act or omission by any Shareholder or Shareholders
(unless that act or omission is an act of or omission by all the
Shareholders) and the whole of that liability shall be borne by
the
responsible Shareholder or Shareholders who (jointly and
severally)
indemnify each other Shareholder accordingly.
6.9 No Loan Disposals
Unless otherwise agreed in writing by the other parties or
permitted by this Agreement, a Shareholder may no~ Dispose (or
attempt to Dispose) of the benefit of the whole or any portion of
its Loans.
6.10 Loans and guarantees on transfer of Shares
The following provisions apply to a Transferor both before and
after it transfers any Shares in accordance with clause 8.
(a) The Company, immediately following registration of
the
relevant transfer of Shares, shall repay to the
Transferor the Loans made or provided by the
Transferor
to the Company.
(b) The Shareholders shall use reasonable endeavours to
obtain a release of the obligations of the Transferor
under any guarantee or indemnity given by the
Transferor under this Agreement or with the written
consent of the Shareholders for the liabilities of
the
Company.
(c) Pending the release referred to in paragraph (b)
being
obtained, the Shareholders (other than the
Transferor)
shall indemnify the Transferor against any liability
under any guarantee or indemnity described in
paragraph
(b) to the extent of that release.
(d) The Transferor shall procure the transferee to make
Loans to the Company in the same amount as the Loans
repaid under paragraph (a) and provide replacement
guarantees and indemnities for those released under
paragraph (b).
7. DISTRIBUTION POLICY
(a) Subject to this Agreement, the declaration and amount
of any dividend will be at the sole discretion of the
Board.
(b) It is the intention of the Shareholders that the
Company and all Group Companies distribute all of
their
surplus cash by way of dividend or capital or other
distribution or advance without undue tax liability
and
to the extent permitted by law in each year.
(c) Until otherwise resolved by the Board, dividends will
be declared on or before the last day of each period
of
six months ending on 30 June and 31 December in an
aggregate amount equal to 100% of the net profit
after
tax of the Company for that period.
(d) This Clause does not prohibit the declaration and
payment of other interim~ dividends.
(e) The Shareholders expect that the proceeds of
disposals
of assets following the acquisitions described in
Recitals A and B will be applied to the repayment of
outstanding loans described in Clause 3.1(i) and to
redemption of Preference Shares.
(f) The Board will, on the reasonable request of both
Shareholders, procure the issue of equal numbers of
non-voting shares in Group Companies to Related
Bodies
Corporate of APN and CCC respectively.
8. TRANSFER OF SHARES
8.1 Rules for Disposal
A Shareholder shall not Dispose of any Share or Shares except in
accordance with this Clause 8.
8.2 Consent Disposal
A Shareholder may Dispose of all or any of its Shares with the
prior consent in writing of all other Shareholders. In
furtherance
of this clause, all parties consent to:
(a) the pledge by CCC of its Shares in the Company to
CCC's
Bank and the grant of a Security Interest in respect
of
its rights under this Agreement on the terms
disclosed
to APN prior to the date of this Agreement and the
exercise by CCC's Bank of its rights and powers under
those terms; and
(b) the grant of security by APN over its Shares in the
Company and the grant of a Security Interest in
respect
of its rights under this Agreement and by
shareholders
of APN over their shares in APN, to APN's Bank on the
terms disclosed to CCC prior to the date of this
Agreement and the exercise by APN's Bank of rights
and
powers under that security.
8.3 Related Part~ Disposal
A Shareholder may transfer all of its Shares to a Related Body
Corporate being a body corporate in which no person other than
the
Shareholder or a Holding Company of the Shareholder is in a
position to control more than 25% of the voting power, without
obtaining the consent of the other Shareholders.
8.4 Transfer Notice
A Shareholder (the "transferor") wishing to transfer any of its
Shares otherwise than in accordance with clauses 8.2 or 8.3 may
transfer all, but not part, of its Shares in accordance with the
following procedure. The Shareholder shall first give notice in
writing (the "transfer notice") to the other Shareholders. The
transfer notice shall specify the number of Shares the transferor
wishes to transfer (the "transfer Shares~, being all the Shares
held by the transferor) and the price per Share which the
transferor is willing to accept for the transfer Shares. The
transfer notice shall constitute an irrevocable offer by the
transferor to sell to the remaining Shareholders the total number
of the transfer Shares, in the same proportion (as near as may
be,
disregarding fractions of Shares) as the number of Shares
actually
held by c~ Shareholder respectively bears to the total number of
Shares on issue (excluding the transfer Shares) (a "Shareholder's
pro rata entitlement). A transfer notice shall operate as a
separate notice in respect of each Share.
8.5 Acceptance
A Shareholder wishing to purchase any of the transfer Shares
shall,
within 30 days after the date of the transfer notice (the "offer
period"), state in writing to the transferor whether:
(a) it is willing to purchase the Shares taken to be
offered to it; and
(b) upon default of another Shareholder agreeing to
purchase the Shares offered to that member, it is
willing to purchase those Shares.
For so long as there are two Shareholders, the recipient of a
transfer notice may nominate a willing purchaser of the Shares
offered it.
8.6 Obligation to Transfer
If during the offer period the transferor receives a statement
from
any Shareholder that it or its nominee is willing to purchase any
of the transfer Shares, the transferor shall, (provided that the
balance of the Shares offered are sold, pursuant to this clause
8.6
or clause 8.8), become bound to sell and the Shareholder or
Shareholders (or nominee) who have stated a willingness to
purchase
shall become bound to purchase and pay for their pro rata
entitlement of the transfer Shares in accordance with their
statements. If all the Shareholders entitled do not claim their
pro
rata entitlement (for themselves or a nominee), the unclaimed
Shares shall bc used in satisfying any request by other
Shareholders for Shares in excess of their pro rata entitlement
in
the same proportions. The sale and purchase shall be completed
within 30 days after the end of the offer period (the "sale
period").
8.7 Transferor Bound
If the transferor fails to transfer any of the transfer Shares
after having become bound to do so, the Company may receive the
purchase money for those Shares and, upon receipt, the transferor
shall be taken to have appointed a director or the secretary of
the
Company as the transferor's attorney to execute a transfer in
respect of the Shares on behalf of the transferor. Upon execution
of the transfer, the director shall, irrespective of whether the
relevant share certificates have been produced but subject to the
transfer being duly stamped, enter the purchasing Shareholder or
its nominee in the share register as holder of the Shares and
shall
hold the purchase money in trust for the transferor. The receipt
of
the purchase money by the Company shall be a good discharge to
the
purchasing Shareholder or its nominee and, after its name has
been
entered in the register, the validity of the proceedings shall
not
be put at issue by any person.
8.8 Transfer to Qualified Persons
If some or all of the transfer Shares are not sold under the
preceding provisions, the transferor shall be at liberty, for a
period of six (6) months after the expiration of the sale period,
to sell to any Qualified Person any of the transfer Shares not
sold, at a price which is not less than the price payable in
accordance with clause 8.6 and on conditions not less onerous
than
those specified in the transfer notice.
8.9 Qualified Persons
For the purposes of clause 8.8, a Qualified Person is a person:
(a) of good financial standing;
(b) who may acquire the transfer Shares without breaching
the Broadcasting Services Act;
(c) who has agreed to be bound by the terms of this
Agreement (other than clauses 2
and 3) by entering into a Deed of Accession; and
(d) from whom the transferor has procured the financial
accommodation described in clause 6.10(d).
8.10 Registration requirements
(a) The parties shall procure that:
(i) any instrument of transfer of Shares is in any
usual or common form or in any other form that
the Board approves and is executed by or on
behalf of both the transferor and the
transferee
and shows the jurisdiction of incorporation of
any corporate transferor or transferee;
(ii) before any person is registered as a holder of
any Share (whether under an allotment or
transfer) that parson enters into a Deed of
Accession; and
(iii) The Company does not register that person as
the
holder of any Share until that Deed of
Accession
has been duly executed and delivered to the
Company.
On being so registered, that person will be deemed to
be a party to this Agreement.
(b) The parties shall procure that no person is
registered
as a holder of any Share following a Disposal of that
Share by a Shareholder unless each requirement in
this
clause 8 (other than any which have been waived in
writing by each Shareholder) has been satisfied.
8.11 Ineffective transfer
The Shareholders shall procure that the Company does not register
any transfer made in breach of this clause 8. Any purported
transfer so made will be of no effect.
8.12 All securities
This clause 8 will apply to all classes and forms of securities
issued by the Company as if the term "Shares" was defined to mean
that class or form of security. A Shareholder who gives a
transfer
notice under this clause 8 shall be obliged to offer for sale at
the same time and in the same manner all other equity and debt
securities held by that Shareholder in the Company.
9. MATER~AL BREACH
9.1 Transfer of Shareholder
If:
(a) a Material Breach (as defined in Clause 9.3) is
committed by or occurs in respect of a Shareholder (a
"Defaulting Shareholder");
(b) any other Shareholder (other than a Related Body
Corporate of the Defaulting Shareholder) (an
"Aggrieved
Shareholder") serves a notice on the Defaulting
Shareholder which complies with Clause 9.4 (a
"Material
Breach Notice~); and
(c) the rights of the Aggrieved Shareholder in respect of
that Material Breach have become enforceable as
provided in Clause 9.5,
the Defaulting Shareholder will be deemed to have served a
Transfer Notice on the Aggrieved Shareholder in respect of
the Shares and all other securities (including debt
securities) ~en held by the Defaulting Shareholder offering
to sell those Shares and other securities at a price to be
determined by an Independent Expert to be the fair value of
those Shares and other securities (as a single holding and
not a proportion of the sale value of the Company as a
whole). The Shares and other securities will not be offered
to any Shareholder which is also a Related Body Corporate
of
the Defaulting Shareholder. If the Material Breach is
remedied prior to the formation of a contract to sell the
Defaulting Shareholder's Shares, the Transfer Notice shall
be
deemed to be withdrawn.
9.2 Suspcnsion of voting rights
For as long as a Matcrial Breach (other than a breach of Clause
12.3 or Clause 13.1) remains unremedied by a Defaulting
Shareholder:
(a) the Defaulting Sharcholder may not vote on any
resolution at any general meeting of the Company
(other
than a resolution on matters referred to in Clause
12.3);
(b) despite any other provision of this Agreement thc
Aggrieved Shareholders (or if only one, the Aggrieved
Shareholder) will constitute a quorum at any general
meeting of the Company during that period;
(c) Directors appointed by the Aggrieved Shareholders
shall
be deemed to constitute a quorum and have a majority
of
the votes which may be cast of Directors meetings;
and
(d) clauses 4.10, 4.11 and 4.12 will cease to operate.
9.3 Material Brcach defined
Each of the following is a Material Breach.
(a) (obligations uoder Agreement) A Shareholder fails:
(i) to provide capital (whether debt or equity) or
a
guarantee or indemnity to or in respect of the
Company in accordance with a unanimous
resolution of the Board; or
(ii) to comply with any other obligation under this
Agreement which is material having regard to
all
relevant circumstances including the nature of
that failure (and in particular whether it is
intentional, negligent or otherwise) and the
consequence of that failure.
(b) (winding up arrangements, enforcemeot Ygsinst ssets,
etc.) The Shareholder being a company:
(i) stops or suspends or threatens to stop or
suspend payment of all or a class of its debts;
(ii) is insolvent;
(iii) and if an application is made under one of the
sections referred to io section 459C(1), a
court
will be required by reason of section 459C(2)
to
presume that the Shareholder is insolvent;
(iv) fails to comply with a statutory dernand
(within
the meaning of section 459F(l) of the
Corporations Law);
(v) an administrator is appointed over all or any
of
its assets or undertaking or any step
preliminary to the appointment of an
administrator is taken;
(vi) a controller within the meaning of section 9 of
the Corporations Law or similar officer is
appointed to all or any of its assets or
undertaking; or
(vii) an application or order is made, proceedings
are
commenced, a resolutioo is passcd or proposed
in
a notice of meeting or an application to a
court
or other steps are taken (other than fri- olous
or vexatious applications, proceedings, notices
or steps) for its winding up or dissolution or
for it lo cnter an arrangement, compromise or
composition with or assignment for the benefit
of i~s creditors, a class of them or any of
them.
9.4 Material Breach Notice
A Material Breach Notice served by an Aggrieved Shareholder:
(a) must identify the Material Breach in respect of which
the notice is served and statc that the notice is
served under this Clause 9; and
(b) must be served within 60 days after the Aggrieved
Shareholder becomes awarc of the Material Breach in
respect of which the notice is served.
(c) must also be given to any other person identified in
writing by the Defaulting Shareholder as having a
Security Interest in the Defaulting Shareholder's
Sharcs (" Mortgagee")
9.5 Enforceable Material Breach
Subject to clause 9.6, the rights of an Aggrieved Shareholder in
relation to a Material Brcach become enforceable:
(a) if the Material Breach is capable of being remedied
and
it is not remedied within thc 30 day period following
the date of service of a Material Breach Notice in
respect ofthat Material Breach; or
(b) if the Material Breach is not capable of being
remedied
and adequate monetar~r compensation or
indemnification
has not been paid or provided to each Aggricved
Shareholder either:
(i) within 30 days following the date of service of
a Material Breach Noti~ in respect of that
Material Breach (if the Shareholders are able
to
agree oo the arnount of that compensation or
indemnification within that 30 dap' period); or
(ii) within seven days following receipt of a
determination by an IndependcDt Expen as to
what
amount is adequate compensation or
indemnification (if the Shareholders are unable
to agree on that a nount).
If within the 30 day period following the date of
service of a Material Breach Notice in respea of a
Material Breach the Defaulting Shareholder has placed
before an Australian coun of competent jurisdiction
for
determination the issue of whether or not the
Material
Breac~ Notice is valid, the rights of an Aggrieved
Shareholder in relation to that Material Breach will
not become enforceable until:
(c) a court declares or determines or makes an
order
to the effect that the Material Breach Notice
is
valid; and
(d) all rights of appeal in relation to that
declaration, determination or order have been
exhausted or the time for lodging any appeal in
relation to that declaration, determination or
order has expired,
and then the rights of each Aggrieved Shareholder in
relation to that Material Breach will bc enforceable
immediately.
9.6 Receivership
The rights of an Aggrievcd Sharcholder in relation to a Material
Breach of the ~ype describe~ in clause 9.3(b) shall nol bccome
enforceable if:
(a) a Material Brcach notice has been given to any
Mortgagee describing the breach; and
(b) the Mortgagee appoints a controller and satisfies the
Aggrieved Shareholder within 7 days that the
financial
obligations of the Defaulting Shareholder under this
Agreement will be met.
10. DEADLOCK
10.1 Transfer Notice on deadlock
If:
(a) a party makes a ma~erial representation under Clause
13.1 which is proved not to be true or correct; or
(b) the Company defaults in the repayment of Loans to the
Shareholders when due; or
(c) (i) the Directors are unable to make a decision on
a
matter referred to in Clause 4.10 or the
Shareholders are unable to make a decision on a
matter referred to in Clause 4.11; and
(ii) the inability of the Directors or the
Shareholders to make that decision is not
resolved (including in the case of the
Directors, by referring the matter to which the
inability lo decide relates to the Shareholders
who appointed the Directors) within 60 days of
the matter first being considered by the Board
or general meeting, as the case may be; and
(iii) the Directors or the Shareholders have not
elected to refer the matter to an Independent
Expert pursuant to Clause 10.4;
then the holder of thc issued Share~f either class
(the
"First Panyn) may serve on the holder (but if there
is
more than one, on not less than every holder) of the
other dass of issued Shares (each, an "Other Panyn) a
transfer notice (deemed a "Transfer Notice" for the
purposes of Article 35 and this Agreement) in respect
of its or their Shares and all other securities
(including debt securities) issued by the Company and
held by the First Party as permitted under this
Agreement and the Articles within 30 days after the
expiration of that 60 days' period. The transfer
notice
shall state a price for the Shares and other
securities
(if any), nominated by the First Party.
10.2 No purchase
If the Other Parties decline to purchase or nominate a purchaser
of
all the Shares and other securities the subject of a Transfer
Notice the First Party may, not earlier than 30 days and not
later
than 60 days after serving the Transfer Notice, serve another
notice on the Other Party stating that the First Party will offer
for sale to third parties:
(a) all the issued Shares and other securities (including
loan securities) in the Compan~ at not Icss than the
price specified in the Transfer Notice divided by the
Specified Proportion of the First Party; or
(b) all of the First Party's Shares and other securities
in
the Company at not less than the pricc spccified in
the
Transfer Notice; or
(c) all of lhe assels of the Company at not less than the
price specified in the Transfer Notice divided by thc
Spccified Proportion of the First Party six months
after the date of that notice. The Olher Parties
shall
be bound to sell their shares and olher securities in
lhe Company in accordance with any contract for sale
made on accep~ance of an offer under paragraph
10.2(a)
or (c) and shall be taken to have appointed lhe First
Party as their attorney to execute the contract and
do
all olher acts and things necessary to complete the
sale on behalf of the Other Parties.
10.3 Obligation to wind up
If no contract for sale is entered inlo pursuant to clause 10.2,
the panies agree that in those circumstances it is just and
equitable that the Company be wound up. Accordingly, the Flrst
Party may at any time up to 3 months after the expiry of six
months
after the date of service of a notice under Clause 10.2, serve a
further notice on the Other Panies requiring that the Company be
wound up and the Shareholders shall be bound to take all
necessary
steps to wind up the Company immediately. Any Shareholder may
purchase assets of the Company from a liquidator.
10.4 Referral to an Independent Expert
The Directors or the Shareholders may by unanimous decision elect
lo refer a matter described in Clause 10.1(a) or (b) to an
Independent Expen for determination in the manner set out in
Clause
33. If a matter is referred to an Independent Expen pursuant to
this Clause:
(a) the Independent Expcrt shall determine what course of
action in all the circumstances it would be
appropriate
for the Company to take in its best interests. In
reaching that decision the Independent Expert shall,
so
far as possible, take into account the interests of
each Shareholder but the Independent Expert may not
put
the interests of any Shareholder before those of the
Company;
(b) in giving a decision, the Independent Expert may
specify or recommend any matters which the
Independent
Expen, in his or her absolute discretion, should be
implemented or otherwise transacted in order to give
commercial efficiency to the decision; and
(c) immediately on receiving the Independent Expen's
decision, the Shareholders and the Directors shall
exercise their powers in relation to the Company to
procure that the Company complies with the decision
and
with any directions contained in it.
10.5 Good Faith to Resolve Disputes
The parties agree that they will use their best endeavours in
good
faith to resolve disputes which arise between Ihem or between the
Directors of the Company in a fair and equitablc manner. The
parties acknowledge that they do not intend to threaten to
irnplement thc provisions of this Clause 10 in negotiating any
dispute between them. Failure to agree to refa a dispule to an
Independenl Expen is not a failure to use best endeavours for the
purposes of this clause 10.5.
11 . CONFIDENTIALITY
11.1 Confidential Information nol to be disclosed
Each party (a "Disclosing Parlyn) undertakes that it will not use
Confidential Information of any olher parly or disclosc that
informalion to any person or allow or make it possible for
anpcrson
lo obscrve Ihal informalion~ except wilh the prior approval of
that
other parly or as permitlcd by lhis Clause 11.
11.2 Pernilted disclosure
Subject to Clause 11.3, a Disclosing Pany may disclose
Confidential
Informalion of aDolber party:
(a) (Relaled Body CorporYte) to any Related Body
Corporate
of the Disclosing Parly;
(b) (employees) to employees, officers and agents of the
Disclosing Party whose dulies in relation to the
Disclosing Party or under this Agreement require the
disclosure;
(c) (purcbasers) to genuine potenlial purchasers or
assignees of all or any of thc Disclosing Party's
Shares or of shares in the Disclosing Party or in a
Holding Company of the Disclosing Party;
(d) (leoders) to a bank or other financial institution
(and
its professional advisers) in connection with any
loan
or olher financial accommodation sought to be
arranged
by the Disclosing Party or its Related Body Corporate
for purposes directly relating to its investment in
the
Company;
(e) (professionsl advisers) to professional advisers
(including legal advisers) and consultants of the
Disclosing Party whose duties in relation to the
Disclosing PaJty or under this Agreement require the
disclosure; and
(f) (compulsor~ disclosure) if and to the extent required
under any applicable legislation or other legal
requirement or under the rules or regulations of any
recognised stock exchange which are applicable to the
Disclosing Party or ils Related Body Corporate but
only
after the Disclosing Party has given notice to acb
other party.
11.3 Conditions to disclosure
(a) Any disclosure under Clauses 11.2(a), (c), (d), and
(e)
(other than a disclosurc in good faith to the legal
advisers of the Disclosing Party) may only be made if
the person to whom disclosure is to be made first
covenants and agre~s with the Disclosing Party in a
form enforceable by the party whose Confidential
Informa~ion is to be disclosed (who shall not
unreasonably refuse to agree or consent) that thc
information concerned will not be disclosed to any
other person for any purpose.
(b) Each Disclosing Party shall use its best endeavours
to
proalre that each of its Related Body Corporates or
employees, officers or agents to whom Confidential
Information is or has been disclosed or by whom that
information has been obsened (each of whom is in this
paragraph (b) referred to as a "Disclosee") will not
improperly disclose or improperly use any of that
information contrary to tbc requirements of this
Clause
11, either during or after the termination of the
Disclosee's employment, office or agency with the
Disclosing Party or after tbe relevant company ceases
to be a Related Body Corporate of the Disclosing
Party. Any breach by a Disclosee of any undertaking
made by the Disclosing Par~ as to non-disclosure or
non-use or any obligation of confidence to which ~be
Disclosee is subject in relation to Confidential
information will be deemed to be a hreach by that
Disclosing Party of that undertaking or obligation.
(c) Any disclosure under Clause 11.2(c) or (d) may only
be
made for the purposes nf satisfying the person to
whom
disclosure is made as to the value and commercial
viabiljty of the proposed investment, loan or
financial
accommodation.
11.4 Public statements concerning Ihe Joint Vcnture
(a) The Sharcholders shall use lheir reasvnable
endeavours
to agree the wording and timing of all public
announcements and statements by all or any of them
relating lO the Business or the Company including,
wi~houl limitation, aMouncements and statements to
shareholders of a Shareholder, whether in annual
reports, at general meetings or otherwise relating to
the Business or the Company before the relevant
announcement or statement is made.
(b) If agreement cannot be reached by the time any
announcement or statement must be made, the
Shareholder
in question may make the relevant announcement or
statement, but it may not disclose more than the
minimum information that it is compelled to disclose.
(c) Copies of any public announcement or statement must
be
given by the Shareholder making that aMouncement or
statement to each other Shareholder in the most
expeditious manner reasonably available .
(d) The Company may not make any public aMouncement or
statement concerning this Agreement or the activities
under it without the prior approval of each
Shareholder.
11.5 Treatment of information and communications b~ Transferor
The following provisions apply to a Transferor both before and
after it ceases to hold any Shares.
(a) If any Confidential Information of that Transferor is
being used for the purposes of (or is otherwise
necessary for) the Business, that Transferor shall
grant a licence to the Company under which the
Company
may use that Confidential Information for the term of
this Agreement on reasonable terms and conditions
agreed in good faith by the Transferor and the
Company.
If they are unable to agree on reasonable terms and
conditions for that licence within 21 days of
commencing to discuss them, then the terms on which
they are unable to agree will be referred to and
determined by an Independent Expert.
(b) The Transferor shall destroy any copies of, or other
documents disclosing, Confidential Information of
another party in its possession or under its control
except to the extent that they are required by law to
be retained by the Transferor.
(c) The Transferor will have no rights or interest in, to
or in respect of, and may not make funher use or
disclose, any Confidential Inforrnation of any other
party.
12. NON-COMPETITION AND NEW BUSINESS OPPORTUNITIES
12.1 Shareholders not to compete with the Company
Each Shareholder (each an "Obligorn) undertakes with each other
Shareholder and the Company that neither the Obligor nor any of
its
Subsidiaries, Related Bodies Corporate or (in the case of APN
only)
Independent Newspapers plc will:
(a) at any time while the Obligor is a Shareholder (the
"relevant time");
(b) for a period of one year after the date on which the
Obligor ceases to be a Shareholder (the "Termination
Date");
(c) for a period of vne ycar after the first anniversary
of
the Termination Date,
(provided that the period after the Termination Date does nol
exceed thc period from lhe dale of lhis Agreemenl lo lhe
Termination Dale) and within:
(i) thc State of New South Wales;
(ii) the State of Victoria;
(iii) the State of Queensland;
(iv) anywhere else in the Commonwealth of Australia;
(v) anywhere else in South East Asia;
do any one or more of the following:
(A) be directly or indirectly engaged,
concerned or interested whether on its
own
account or as a member, shareholder,
consultant, agent, beneficiary, trustee
or
otherwise in any enterprise, corporation,
firm, trust, joint venture or syndicate
which is engaged, concerned or interested
in or carrying on any business the same
as
or substantially similar to or in
competition with the Business conducted
by
the Company at lhe relevant time or the
Termination Date;
(B) on its own account or for any person,
enterprise, firm, trust, joint venture or
syndicate directly or indirectly entice
(or attempt to entice) away from the
Company any customer of the Company;
(C) on its own account or for any person,
enterprise, firm, trus~, joint venture or
syndicate directly or indirectly entice
(or attempt to entice) away from APN
Broadcasting any supplier to APN
Broadcasting;
(D) on its own account or for any person,
enterprise, firm, trust, joint venture or
syndicate directly or indirectly entice
(or attempt to entice) away from APN
Broadcasting any employee of APN
Broadcasting; or
(E) personally or by its employees or agents
or by circulars, letters or advenisements
whether on its own account or for any
other person, enterprise, firm, trust,
joint venture or syndicate directly or
indirectly interfere with the Business or
divulge to any person any information
concerning the Business or APN
Broadcasting or any of its respective
dealings, transactions or affairs;
except that:
(F) a party shall be entitled to acquire and
operate a business enterprise which is
not
a material competitor of the Company in
the same media (eithcr radio or
television) in a broadcast area in which
a
Group Company operates, provided that the
pany has first complied with the
provisions of Clause 12.3;
(G) a party shall be entitled to hold an
economic interest of less tha~ S% in any
cnli~y, provided that the party has no
board or managemcnt representation;
(H) APN Holdings will be entitled to maintain
its joint venture interests (with SBS and
Australian Capital Equity) in
patelevision
in Australia, provided that it uses
reasonable endeavours to obtain all
necessary consents to transfer tbose
interests to the Company if CCC requests
APN Holdings to do so.
12.2 Construction and naturc of restrictions
Each Shareholder acknowledges that:
(a) each of the prohibitions and restrictions contained
in
Clause 12.1:
(i) will be read and construed and will have effect
as a separate severable and independent
prohibition or restriction and will be
enforceable accordingl~; and
(ii) is reasonable as to period, territorial
limitations and subject matter in
order to protect the Business; and
(b) breach of any of the prohibitions and restrictions
contained in Clause 12.1 may DOt adequately be
compensated by an award of damages and any breach by
the Obligor of any of those prohibitions and
restrictions will entitle any other Shareholder, in
addition to any other remedies available at law or in
equity, to seek an injunction to restrain the
committing of any breach (or continuing breach) of
any
of those prohibilions or restrictions.
It is the intention of the parties that all combinations of the
prohibitions and restrictions will apply and be enforceable and
that only those which a Court, in exercising its discretion, may
hold to be an unreasonable restraint of trade will be severed.
12.3 New Business Opportunities
Each Shareholder agrees that it will seek new business
opponunities
in relation to Electronic Media in Soulh East Asia for the
Company
in accordance with the provisions of this Clause:
(a) if a Shareholder identifies an opportunity to
acquire,
directly or indirectly, any interest in an Electronic
Media business in South East Asia, or an opponuniq IO
acquire the right to operate such a business, that
party shall provide all relevant details of that
opportunity to the Company to enable the Company to
considcr acquiring that interest or right;
(b) the information to be provided to the Company
pursuant
to paragraph 12.3(a) shall include the following:
a full description of the interest or right;
idcnlificalion of all other interested parties,
including vendors ~r promoters;
the consideralion which the parly providing the
information proposes give in ordcr to acquire
the inlerest or right;
the time within which the in~erest or right is
likely to remain available for acquisition;
(c) wi~hin thirty days (or any shorter period appropriate
in the circumstances) aftcr being provided with
information about a new opporturlity pursuant to
paragraph 12.3(a), the Directors of the Company shall
meet together to consider the opportunity and to
determine:
whether the Company wishes to acquire the
interest or right;
the precise description of the interest or
right
to be acquired;
the method by which the Company will fund the
acquisition;
the consideration which the Company is prepared
to give to acquire thc interest or right;
other material terms of acquisition.
(d) the Shareholders shall procure that the Directors of
the Company will act bona fide to reach an agreed
view
on the matters described in paragraph (c);
(e) in the absence of agreement between the Directors of
the Company in relation to the matters described in
paragraph (c) in relation to any opportunity
presented
to the Company, then either Shareholder may, subject
to
Clause 12.1, proceed to acquire the interest or right
on terms no more favourable to the Shareholder than
the
terms upon which the Company considered the
acquisition
of that interest or right (if at all);
(f) a failure to agree on any matter arising for decision
by Shareholders or Directors of the Company under
this
Clause 12.3 shall nQ~ give rise to any breach or
deadlock for the purposes of Clauses 9 and 10.
(g) neither Clause 12.1 nor this Clause 12.3 prohibits
the
acquisition, or establishment, of a business, or
requires information about a proposed acquisition to
be
presented to the Company, if Electronic Media is not
the primary pan of the business to bc acquired or
established.
13. REPRESENTATIONS AND WARR.~NTIES
13.1 Mulual repr~senbtiolls aod wsrranties
Each party represents and warrants to each other party that
(except
as expressly disclosed iQ this Agreement or consented to by the
other party) each of the following statements is true and correct
on the date of this Agreement and on the Effective Date.
(a) (status) It is a corporation duly incorporated and
validly existing under the laws of the place of its
incorporation.
(b) (power) It has the power to enter into and perform
its
obligations under this Agreement to carry out the
transactions contemplated by this Agreement and to
carry on its business as now conducted or
contemplated.
(c) (corporate authorisations) It has taken all necessary
corporate action to authorise the entry into and
performance of this Agreement and to carry out the
transactions contemplated by this Agreement.
(d) (documents binding) This Agreement is its valid and
binding obligation enforceablc in accordance with its
terms, subject to any ne~essary stamping and
registration.
(e) (transactions permitted) All actions taken in
relation
to thc negotiation execution and performance by it of
this Agreement and each transaction contemplated
under
this Agreement did not and will not violate in any
respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a government or governmental
authority, coun or agency binding on it;
(ii) its memorandum or articles of association or
other constituent documents; or
(iii) any other document or agreement which is
binding
on it or its assets.
13.2 Representations and warranties by APN Holdings.
APN Holdings represents and warrants to CCC lnc. and CCC that:
(a) As at the date of this Agreement APN is the legal and
beneficial owner of all the issued securities of the
Company;
(b) As at the date of this Agreement the Company's assets
include all the issued shares in Wesgo Limited and
APN
Broadcasting Services Pty Lirnited;
(c) As at the date of this Agreement no third person is
the
legaJ or beneficial owner of any share or other
security in or of the Company;
(d) As at the date of this Agreement no person has any
right to call and there are no commitments in place
for
the present or future issue or transfer of any share
or
other security in or of the Company;
(e) As at the date of this Agreement the Company has not
made available any prescribed interest;
(f) the Management Accounts set out in Annexure C show a
materially true and accurate view of the financial
affairs of the Company as at 31 December 1994 with no
material omissions;
(g) Since the balance date of the Management Accounts
thae
has been no material change to the financial position
of the Company and no event described in clause
3.6(c)
has occurred, except as disclosed in the Disclosure
Letter.
(h) To APN's knowledge no Group Company has material
contingent liabilities or obligations not disclosed
in
the Management Accounts.
(i) APN Holdings will proc-re that the Company complies
with its obligations under the cross media ownership
provisions of the Broadcasting Services Act, in
relation to the acquisition of 4KQ in 13risbane, and
any liability incurred by the Company in complying
with
its obligations in relation to 4KQ under those
provisions will be borne by APN.
14. OPER~TION OF AGREEMENT
14.1 Shareholders' Agreemeot to o~erride Articles
If there is any inconsistency between the provisions of this
Agreement and the provisions of the Articles, then the provisions
of this Agreement prevail to the e~tent of the inconsistency and
the Articles shall be read and construed accordingly.
14.2 Agreemeal pro~isioo may be included ia Articles
If it is necessary to include a provision in the Articles to
ensure
that a provision of this Agreement is effective in accordance
with
its terms, the Shareholders shall procure the necessary
arnendment
of the Articles.
14.3 Shareholders to obser~e and implemeot Agreement
Each Shareholder undertakes with each other Shareholder and the
Company to:
(a) exercise all its votes, powers and rights under the
Articles so as to give full force and effect to the
provisions and intentions of this Agreement;
(b) observe and comply fully and promptly with the
provisions of the Articles so that each provision of
the Articlcs is enforceable by the parties among
themselves and in whatever capacity; and
(c) exercise all its voles, powers and rights in relation
to the Company so as to ensure that the Company fully
and promptly observes, complies with and gives effect
to thc requirements and intentions of this Agreement
and the Articles.
The obligations in this Clause 14.3 include an obligation to
exercise its powers both as a Shareholder and (where applicable
and
to the extent permitted by law) through any Director appointed by
it and (to the e~tent permitted by law to procure that any
Director
appointed by it (whether alone or jointly with any other person)
shall procure that maner or thing.
14.4 Compa~y to obser~e and imp1ement A~reement
The Company shall do all things necessary or desirable to giYe
effect to the provisions and intenlions of this Agreement in
accordance with its terms and is bound by all provisions of this
Agreement which expressly or by implication apply to the Company.
14.5 Shareholders not to vote on direction
Each Shareholder undertakes with each other Shareholder that,
while
it is a party to this Agreement, it will not (except as expressly
provided for in this Agreement) agree to cast any of the voting
rights exercisable in respect of any of its Shares in accordance
with the directions, or subject to the consent of, arly other
person other than the Holding Company of that Shareholder.
15. REI.ATIONSHIP OF THE SHAREHOLDERS
15.1 No partncrship
Neither this Agreement nor the Articles shall be interpreted as
constituting:
(a) the relationship of the Shareholders as a
partnership,
quasi-partnership, association or any other
relationship in which one or more of the Shareholders
may (except as specifically provided for in this
Agreement) be liable generally for the acls or
omissions of any other Shareholder; or
(b) any Sharcholder as the general agent or
representative
of any other Shareholder or of the Company with the
exception of any powers of anorney specifically
granted
or contemplated by this Agreement.
In panicular, but without limitation, no Shareholder has the
authority to pledge or purport to pledge the credit of any other
Shareholder or the Company or to make or give (or purport to make
or give) any representations, warranties or undenakings for or on
behalf of any other Shareholder or the Company.
15.2 Shareholders to be just and faithful
Each Shareholder undertakes with each other Shareholder that it
will be just and faithful in all its dealings with each other
party
in relation to the conduct of the Business and the implementation
of this Agreement and will in good faith do all things reasonably
within its power which are necessary or desirable to give effect
to
the spirit and intent of this Agreemcnt and the Articles and to
promote the objects of the Company for the benefit of the
Shareholders as a whole.
16. DURATION AND TERMINATION
16.1 Former Shareholder not bound
Subject to Clause 16.3, this Agreement ceases to apply to a
Shareholder which has transferred all its Shares as permitted by
this Agreement and the Articles.
16.2 Term
This Agreement continues in full force and effect until
terminated
by written agreanent between the panies or any Shareholder holds
all the issued Shares.
16.3 Termination not to afrect certain provisions
The termination of this Agreement however caused and the ceasing
by
any Shareholder to hold any Shares will be without prejudice to
any
obligations of the parties which has accrued prior to that
termination or cessation and which remain unsatisfied.
17. ASSIGNMENT
Subject to this Agreement a party shall not Dispose of any of its
rights under this Agreement otherwise than in connection with a
transfer of Shares in accordance with this Agreement and the
Articles.
18. NOTICES
Any notice given under this Agreement:
(a) must be in writing addressed ~o the intended
recipient
at the address shown above or the address last
notified
by the intended recipient to the sender;
(b) must be signed by a person duly authorised by the
sender;
(c) will be taken to have been given when delivered,
received sent by facsimile or other eleclronic
lransmission, or left at the above address. If
delivery
or receipt occurs on a day when business is not
generally carried on in the place to which the notice
is sent, or is later than 4 pm (local time), it will
be
taken to have been duly ~iven at the commencement of
business on the next day when business is generally
carried on in that place.
19. FURTHER ASSURANCES
Each party shall take all steps, execute all documents and do
everything reasonably required by any other party to give effect
to
any of the transactions contemplated by this Agreement.
20. TIME
Time is not of the essence of this Agreement.
21. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties with
respect to its subject mattcr. It sets out the only conduct
relied
on by the parties and supersedes all earlier conduct by tbe
parties
with respect to its subject matter.
22. AMENDMENT
This Agreement may be amended only by another agreement executed
by
all parties who may be affected by the amendment. Each party
acknowledges that a party may be obliged to obtain the consent of
the holder of a Security Interest (described in dause 8.2) to any
amendment of this Agreement.
23. NO WAIVER
No failure to exercise and no delay in exercising any right,
power
or remedy under this Agreement will operate as a waiver. Nor will
any single or panial exercise of any right, power or remedy
preclude any other or further exercise of that or any other
right,
power or remedy.
24. REMEDIES CUMULATIVE
The rights, powers and remedies provided to a party in this
Agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law or equity or an~r
agreement.
25. NO MERGER
The rights and obligations of the parties will not merge on the
complaion of any transactio~ contemplated by this Agrecment. They
will survive the execution and delivery of an~r assignment or
other
document entered into for the purpose of implementing any such
transaction.
26. SEVERANCE
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will be ineffective in that
jurisdiction to the extent of the prohibition or
unenforceability.
That will not invalidate the remaining provisions of this
Agreement
nor affect the validity or enforceability of that provision in
any
other jurisdiction.
27. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties in this Agreement will survive
the execution and delivery of this Agrccmcnt and the completion
of
transactions contemplated by it.
28. ENUREMENT
The provisions of this Agreement will, subject as otherwise
provided in this Agreement, enure for the benefit of and be
binding
on the parties and their respective succ~ssors and permitted
substitutes and assigns and (where applicable) legal personal
representatives.
29. cosrs AMD STAMP DUTY
The legal and other costs of the negotiation, preparation and
execution of this Agreement shall be borne by the Company. All
stamp duty (including fines, penalties and interest) which may be
payable on or in connection with this Agreement and any
ins~rurnent
executed under this Agreement shall be borne equally by the
Shareholders. Each Shareholder shall bear its own costs in
relation
to matters referable solely to it including funding, tax advice,
shareholder strudures and FlRB approvals.
30. GOVERNING LAW
This Agreement is governed by the laws of New South Wales.
31. JURISDICTION
31.1 With respect to any legal action or proceedings which may be
brought with respect to this Agreement or any transaction
contemplated by this Agreement (each, a "Relevant Action"), each
pany irrevocably:
(a) submits to and accepts, for itself and in respect of
its assets, generally and unconditionally the
non-exclusive jurisdiction of courts exercising
jurisdiction in New South Wales in connection with
matters concerning this Agreement; and
(b) waives any objection it may have now or in the future
to the venue and any claim it may have now or in the
future that the Relevant Action has been brought in
an
inconvenient forum.
31.2 Process agents
(a) CCC and CCC Inc. irrevocably:
(i) nominate Garry Charles Besson as their agent to
receive service of process or other documents
in
any Relevant Action in the Courts of New South
Wales; and
(ii) agree that service of any such process or
documents on that agent or any other person
appointed under paragraph (b) will be
sufficient
service or. it.
Each process agent named above which is party to this
Agreement irrevocably and unconditionally accepts
that
appointment.
(b) CCC and CCC Inc. shall ensure each process agent
remains authorised to accept service on its behalf.
lf
any process agent ceases to have an office in the
place
specified, CCC and CCC Inc. shall ensure that at all
times there is anolher person in that place
acccptahle
to CCC and CCC Inc. to receive process on its hchalf.
It shall promptly notify APN of the appointment of
that
other person.
32. COUNTERPARTS
This Agreemenl may be executed in any number of counterparts. All
counterparts will be laken to constitute one instrument.
33. INDEPENDENT EXPERT
Unless otherwise provided in this iAgreement, the following
provisions shall apply to an~ Independent Expert appointed in
respect of a dispute bet~veen the Directors or Shareholders and
to
the proceedings and decision of that expert.
(a) ll~e Independent Expert must be a suitably qualified
expert who has no direct or indirect personal
interest
in the outcome of the decision he or shc is requested
to make.
(b) The Independent Expert will be selected by agreement
between the disputing Directors or Shareholders or,
failing agreemenl between them within 7 days after
they commence to discuss the selection of that
Independent E~pert, by the President of the Institute
of Chartered Accountants.
(c) The matter which the Independen~ Expert is required
to
determine must be referred to him or her by written
submission which must state the specific matter to be
determined together with all other reasonably
relevant
matters including any requirements under this
Agreement
relating to that matter.
(d) The Independent Expert will give due weight to any
representations put forward by a Director or
Shareholder witbin any time limit prescribed by the
Independent Expert in his or her discretion. The
parties shall supply the Independent Expert with an~r
information, assistance and co-operation which he or
she may request in connection with his or her
determination.
(e) The fees and expenses of the Independent Expert will
be
borne by the disputing Shareholders in equal sbares
unless the Expen, in his or her absolute discretion,
determines that a disputing Shareholder should bear
all
or a greater proportion of them because of the
conduct
of that Shareholder.
(f) The Independent Expen will give reasons for his
determination.
(g) The Independent Expert will aa as an expn and not as
an
arbitrator and his or her decision will, in the
absence
of manifest error, be final and binding on the
Shareholders and the Company and not subject to
review.
34. GUARANTEE
34. 1 Acknowledgment
APN Holdings and CCC Inc. ("Parent Companiesn) each acknowledge
that it is a condition of CCC and APN respectively entering into
this Agreement that they give the guarantee contained in this
clause 34, and each also acknowledges lhat they have received
valuable consideration.
34.2 Guarantee
(a) APN Holdings unc~nditionally and irrevocably
guarantees
to CCC and CCC Lnc. the due and punctual performance
by
APN its obligations under this Agreement.
(b) CCC Inc. unconditionally and irrevocably guarantees
to
APN and APN Holdings the - duc and punctual
performance by CCC of its obligatiorls under this
Agreement.
(c) Without limiting the generality of paragraph (a) and
(b) the obligations of the Parcnt Companies under
those
paragraphs apply in particular to the obligations of
the Shareholders pursuant to Clause 6.2.
34.3 No relesse
The liability of a Parent Company pursuant to Clause 34.2 is not
affected by anything which might release or exonerate or
otherwise
affect it at law or in equity including but not limited to one or
more of the following:
(a) a party granting time or other indulgence to,
compromising with or panially releasing in any way
that
parent company;
(b) laches, acquiescence, delay, variation or novation,
acts or omissions on the part of any other party;
(c) any alteration of this Agreement or any Agreement
entered into in the prformance of this Agreement,
with
or without the consent of that Parent Company; and
(d) the invalidity or unenforceability of an obligation
or
liability of a prson other than that Parent Company.
34.4 Continuing gusr~ntee
This guarantee is a continuing guarantee and is not discharged by
any one payment.
34.5 No set-off
The Parent Companies may not, without the prior consent of a
claimant, raise a set-off or counter claim available to the
Parent
Company against the claimant in reduction of liability under this
guarantee until all moneys due by the guaranteed party under or
in
re1ation to this Agreement are paid.
EXECUTED by the parties.
