AS A
CONSEQUENCE:
(1)
THERE IS NO OBLIGATION ON ANY PARTY TO
UNDERTAKE OR PERFORM ANY OF THE OTHER ACTIONS;
(2)
TO THE EXTENT THAT SUCH ACTIONS HAVE ALREADY
BEEN UNDERTAKEN, THE PARTIES MUST DO EVERYTHING REASONABLY REQUIRED TO REVERSE
THOSE ACTIONS; AND
(3)
THE SELLER AND THE BUYER MUST EACH RETURN TO
THE OTHER ALL DOCUMENTS DELIVERED TO IT UNDER CLAUSE 6.2(A) AND SCHEDULE 2 AND
MUST EACH REPAY TO THE OTHER ALL PAYMENTS RECEIVED BY IT UNDER CLAUSE 6.2(A) AND
SCHEDULE 2, WITHOUT PREJUDICE TO ANY OTHER RIGHTS ANY PARTY MAY HAVE IN RESPECT
OF THAT FAILURE.
(B)
THE BUYER MAY, IN ITS SOLE DISCRETION, WAIVE
ANY OR ALL OF THE ACTIONS WHICH THE SELLER IS REQUIRED TO PERFORM UNDER CLAUSE
2.1 OF SCHEDULE 2 AND THE SELLER MAY, IN ITS SOLE DISCRETION, WAIVE ANY OR ALL
OF THE ACTIONS WHICH THE BUYER IS REQUIRED TO PERFORM UNDER CLAUSE 2.2 OF
SCHEDULE 2.
7
PRIOR TO COMPLETION OF THE AUSTRALIAN
SHARE SALE AGREEMENT
Between Completion and completion of the Australian Share Sale Agreement, the
Buyer:
(A)
MUST NOT SELL, TRANSFER, ASSIGN, TRUST,
ENCUMBER, OPTION, SWAP OR IN ANY OTHER WAY ALIENATE ITS LEGAL OR BENEFICIAL
RIGHTS ATTACHING TO THE SALE SHARES, WITHOUT THE WRITTEN CONSENT OF THE SELLER;
AND
(B)
MUST USE ITS REASONABLE ENDEAVOURS TO ENSURE
THAT THE BUSINESS OF THE SALE ENTITY IS CONDUCTED MATERIALLY IN THE ORDINARY
COURSE AND, IN PARTICULAR, THAT THE SALE ENTITY DOES NOT:
(1)
DISTRIBUTE OR RETURN ANY CAPITAL TO ITS
MEMBERS;
(2)
BUY-BACK ANY OF ITS SHARES;
(3)
ISSUE ANY SHARES, OPTIONS OR SECURITIES
WHICH ARE CONVERTIBLE INTO SHARES IN THE SALE ENTITY; OR
(4)
ALTER ITS CONSTITUTION.
10
8
UNWINDING OF TRANSACTION
(A)
IN THE EVENT THAT THE AUSTRALIAN SHARE SALE
AGREEMENT DOES NOT COMPLETE ON THE DATE OF COMPLETION OF THIS AGREEMENT THEN THE
PARTIES AGREE THAT THE TRANSACTIONS COMPLETED PURSUANT TO THIS AGREEMENT MUST BE
UNWOUND AND BOTH PARTIES RETURNED TO THE POSITION THEY WOULD HAVE BEEN IN, BUT
FOR COMPLETION OF THIS AGREEMENT, WITHIN ONE BUSINESS DAY.
(B)
FOR THE PURPOSES OF CLAUSE 8(A), THE PARTIES
MUST USE THEIR BEST ENDEAVOURS TO UNWIND ALL TRANSACTIONS COMPLETED PURSUANT TO
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION:
(1)
THE SELLER MUST PAY THE PURCHASE PRICE BACK
TO THE BUYER IN IMMEDIATELY AVAILABLE FUNDS; AND
(2)
THE BUYER MUST TRANSFER THE SALE SHARES,
FREE AND CLEAR OF ALL ENCUMBRANCES, BACK TO THE SELLER.
9
PERIOD AFTER COMPLETION
9.1
APPOINTMENT OF PROXY
(A)
SUBJECT TO CLAUSE 7, FROM COMPLETION UNTIL
THE SALE SHARES ARE REGISTERED IN THE NAME OF THE BUYER, THE SELLER MUST:
(1)
APPOINT THE BUYER AS THE SOLE PROXY OF THE
HOLDERS OF SALE SHARES TO ATTEND SHAREHOLDERS' MEETINGS AND EXERCISE THE VOTES
ATTACHING TO THE SALE SHARES;
(2)
NOT ATTEND AND VOTE AT ANY SHAREHOLDERS'
MEETINGS;
(3)
TAKE ALL OTHER ACTIONS IN THE CAPACITY OF A
REGISTERED HOLDER OF THE SALE SHARES AS THE BUYER DIRECTS.
(B)
THE BUYER INDEMNIFIES THE SELLER'S GUARANTOR
AGAINST ALL LOSS SUFFERED