THEM IS HELD INVALID OR UNENFORCEABLE BY A COURT OF
LAW THEN CLAUSE 5.1, CLAUSE 5.2 AND/OR SUCH PART AS THE CASE MAY BE WILL BE
CONSIDERED TO BE AUTOMATICALLY DELETED FROM THIS AGREEMENT.
ANY SUCH DELETION
SHALL APPLY ONLY TO THAT PART OF CLAUSE 5.1 AND/OR CLAUSE 5.2 SO ADJUDICATED,
AND THE OPERATION OF SUCH PART WILL ONLY BE DEEMED INAPPLICABLE IN THE
PARTICULAR JURISDICTION IN WHICH THE ADJUDICATION IS MADE.
5.4
Acknowledgments
Notwithstanding any other provision of this Agreement, the parties acknowledge
and agree that the ANZ Group:
(A)
PROVIDES A RANGE OF
BANKING, FUNDS MANAGEMENT AND ADVISORY SERVICES INTERNATIONALLY;
(B)
IS THE RESPONSIBLE ENTITY
AND/OR MANAGER OF A NUMBER OF MANAGED FUNDS AND TRUSTS AND HAS OBLIGATIONS AND
DUTIES IN RELATION TO EACH OF THOSE MANAGED FUNDS AND TRUSTS;
17
(C)
MAY, SUBJECT TO CLAUSE
5.2, INVEST FUNDS IN COMPANIES OR OTHER ENTITIES THAT MAY COMPETE DIRECTLY OR
INDIRECTLY WITH THE COMPANY;
(D)
CANNOT FOSTER AND PROMOTE
THE BUSINESS WHERE SUCH CONDUCT WOULD BREACH ITS OBLIGATIONS TO, OR ADVERSELY
IMPACT ON, THE SHAREHOLDINGS OF THE ANZ GROUP IN ANY SUCH COMPETING COMPANY OR
ENTITY REFERRED TO IN CLAUSE 5.4(C) IN WHICH FUNDS MANAGED BY THE ANZ GROUP HAVE
BEEN INVESTED, PROVIDED THAT:
(I)
ANZ TO THE BEST OF
ITS KNOWLEDGE WARRANTS THAT AT THE COMPLETION DATE IT IS NOT AWARE OF ANY SUCH
DIRECTLY CONFLICTING AND/OR COMPETING BUSINESS INTEREST IN RELATION TO WHICH A
MEMBER OF THE ANZ GROUP HAS A SHAREHOLDING; AND
(II)
WITHOUT LIMITING
CLAUSE 5.2, AFTER THE COMPLETION DATE, IF A MEMBER OF THE ANZ GROUP PROPOSES TO
ENTER INTO A TRANSACTION WHICH WILL HAVE, OR WHICH IS LIKELY HAVE, THE EFFECT OF
CREATING A CONFLICTING AND/OR COMPETING BUSINESS INTEREST THEN ANZ WILL NOTIFY
CHANNELL AND THE COMPANY PRIOR TO THAT MEMBER ENTERING INTO THE TRANSACTION; AND
(E)
MAY HOLD MARKETABLE
SECURITIES QUOTED AT THE TIME OF ACQUISITION ON A RECOGNISED STOCK EXCHANGE
REPRESENTING COLLECTIVELY NOT MORE THAN 10% OF THE ISSUED CAPITAL OF THE LISTED
ENTITY.
6.
Financial information
6.1
Annual business plan
(A)
SUBJECT TO CLAUSE 6.1(B),
THE COMPANY MUST PROCURE THAT BEFORE THE START OF EACH FINANCIAL ACCOUNTING
PERIOD OF THE COMPANY A BUSINESS PLAN INCORPORATING AN ANNUAL PROJECTED
STATEMENT OF FINANCIAL POSITION, STATEMENT OF FINANCIAL PERFORMANCE AND
STATEMENT OF CASH FLOWS FOR THE GROUP COMPANIES ("BUSINESS PLAN") IS PREPARED
AND DELIVERED TO THE BOARD AND THE INVESTORS.
THE BUSINESS PLAN MUST BE
APPROVED (IN FORM AND CONTENT) BY THE BOARD BEFORE BEING DELIVERED TO THE
INVESTORS.
(B)
THE INITIAL BUSINESS PLAN
FOR THE GROUP COMPANIES FOR THE PERIOD FROM THE COMPLETION DATE TO 30 JUNE 2005
IS ATTACHED AT ANNEXURE 4.
6.2
Management accounts
The Company must procure that management accounts are prepared for the Group
Companies each month.
The management accounts must include a statement of
financial position, a statement of financial performance and a statement of cash
flows together with a commentary on the trading and prospects of the Group
Companies including a comparison to the annual