Integrated Media Technology Ltd 6-K, filed Jul 12, 2022
Integrated Media Technology Ltd (IMTE)
About this 6-K
Integrated Media Technology Ltd filed this 6-K on July 12, 2022.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
Dated July 11, 2022
Commission File Number 001-38018
Integrated Media Technology Limited
(Exact Name as Specified in its Charter)
N/A
(Translation of Registrant’s Name)
Level 7, 420 King William Street
Adelaide SA 5000
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b) (1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b) (7): ☐
OTHER EVENTS
Disposal of subsidiary and exit from Lamination Glass Operation in China
Further to the announcement dated January 4, 2022, on July 11, 2022, Integrated Media Technology Limited ("IMTE" or "Company"), entered into the Sales and Purchase Agreement (“SP Agreement”) with Capital Stone Holdings Limited (“Purchaser”), a corporation incorporated in British Virgin Islands, pursuant to which the Company has conditionally agreed to sell to the Purchaser 100% equity interest in eGlass Technologies Ltd (“eGlass”), a wholly-owned subsidiary of the Company holding all the assets of our switchable glass business in China (the “Disposal”) for US$6.8 million (“Consideration”).
The Purchaser shall pay the Consideration by issuance to IMTE a debt instrument (“Loan Agreement”) which bears interests of 5% per annum, repayable in 2 years and secured against the shares of eGlass.
The Purchaser has the intention to list eGlass on the Australia Securities Exchange (“ASX”) within the next 2 years. Pursuant to the SP Agreement, the Purchaser has the right to pay the Loan by giving IMTE the number of shares in eGlass calculated by dividing the amount of outstanding loan by 10% discount to the then 5 days volume weighted average closing price (“VWAP”) provided that such price shall not be greater than the 120% of the IPO Price. Alternatively, the Company has the right to have the Purchaser pay the Loan by transferring to IMTE the number of shares in eGlass calculated by dividing the amount of outstanding loan by the IPO Price. Any outstanding loan which could not be fully repaid by the eGlass shares above will be settled by cash.
With the completion of this transaction, IMTE will have no operation in China and very little operation in Hong Kong where it will focus on transferring all of its operation out Hong Kong before the end of the year.
Fund Raising
On and around July 11, 2022, IMTE is in discussion with investors outside the United States to raise up to US$10 million in relation to the above disposal. IMTE will entered into Subscription Agreements (“Subscription Agreements”) where each Subscriber will subscribe to a convertible note (“Note”). The Note is interest free, unsecured and convertible into eGlass shares on the date eGlass receives notice from ASX that it will be admitted to the official list of ASX, at a conversion price equal to 25% discount to the IPO Price.
However, if by the first anniversary of the date of the Agreement, eGlass has not received notice from ASX that it will be admitted to the official list of ASX, all Notes will convert to IMTE shares based on then 30-day VWAP multiplied by 90% per Note.
In addition, each Subscriber shall receive warrants (“Warrant”) equal to the amount of the Note. Each Warrant can subscribe, provided that eGlass is listed on the ASX, for one share in eGlass at the IPO Price for a period of one year after the IPO. The Warrants are assignable and transferable prior to the IPO. If eGlass is not listed on the ASX, the Warrants will automatically expire.
As at July 11, 2022, the Company has signed Subscription Agreements for US$600,000.
The foregoing description of the SP Agreement and Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the said agreements, which is incorporated by reference and filed as an Exhibit 99.1 to 99.4 hereto.
1
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 thereunto duly authorized.
Dated: July 12, 2022
| Integrated Media Technology Limited | ||
| By: | /s/ Xiaodong Zhang | |
| Name: | Xiaodong Zhang | |
| Title: | Chief Executive Officer | |
2
EXHIBIT INDEX
| Exhibit | Description of Exhibit | |
| 99.1 | Share Sales and Purchase Agreement | |
| 99.2 | Loan Agreement | |
| 99.3 | Specific Security Deed | |
| 99.4 | Subscription Agreement |
3
Exhibit 99.1
Share Sale and Purchase Agreement
Integrated Media Technology Limited
ACN 132 653 948
Capital Stone Holdings Limited
 |
| Contents |
| Part 1 – Preliminary | 1 | |
| 1. | Definitions | 1 |
| 2. | Interpretation | 3 |
| Part 2 – Sale and purchase of Sale Shares | 4 | |
| 3. | Sale and purchase | 4 |
| 4. | Purchase Price | 4 |
| 5. | Payment of Purchase Price | 4 |
| 6. | Property and risk | 4 |
| Part 3 – Completion | 4 | |
| 7. | Condition Precedent | 4 |
| 8. | Completion | 5 |
| 9. | Buyer’s obligations at Completion | 5 |
| 10. | Seller’s obligations at Completion | 5 |
| 11. | Interdependency | 5 |
| Part 5 – Warranties | 6 | |
| 12. | Warranties | 6 |
| 13. | Seller’s Warranties | 6 |
| 14. | Warranty qualifications | 6 |
| 15. | Buyer’s warranties | 6 |
| 16. | Buyer’s acknowledgements | 7 |
| Part 6 – Agreement Claims and limitations | 8 | |
| 17. | Notice of Agreement Claim | 8 |
| 18. | General limitations on Agreement Claims | 8 |
| 19. | Limitation on Agreement Claims | 9 |
| 20. | Maximum liability of the Parties | 10 |
| 21. | Limitations do not apply | 10 |
| Part 7 – General | 10 | |
| 22. | Interest on unpaid monies | 10 |
| 23. | GST | 10 |
| 24. | Consents and approvals | 11 |
| 25. | Confidentiality | 11 |
| 26. | Public announcements and communications | 12 |
| 27. | Assignment | 12 |
| 28. | Amendment | 12 |
| 29. | No waiver | 12 |
| 30. | No merger | 12 |
| 31. | Further action | 12 |
| 32. | Entire agreement | 12 |
| 33. | Contribution | 12 |
| 34. | Execution and counterparts | 13 |
| 35. | Notice | 13 |
| 36. | Governing law | 13 |
| 37. | Duty | |
| 38. | Costs | 13 |
| Schedule 1 – Seller’s Warranties | 14 | |
pg i
Parties
Party 1
Integrated Media Technology Limited ACN 132 653 948 of Level 7, 420 King William Street Adelaide South Australia 5000 (Seller)
Party 2
Capital Stone Holdings Limited a company incorporated in the British Virgin Islands with its registered address at Overseas Management Company Trust (BVI) LTD., OMC Chambers, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands (Buyer)
Introduction
| A. | The Company was incorporated on 30 May 2022. |
| B. | The Seller is the legal and beneficial owner of the Sale Shares. |
| C. | The Seller has agreed to sell, and the Buyer has agreed to buy, the Sale Shares on the terms set out in this agreement. |
Operative clauses
Part 1 – Preliminary
| 1. | Definitions |
Unless otherwise specified, in this agreement:
Agreement Claim has the meaning given in clause 17;
Agreement Date means the date of execution of this agreement by all parties;
ASIC means the Australian Securities and Investments Commission;
Assets means all assets (tangible and intangible) owned by the Company as at the Agreement Date,
Authority means:
| (a) | a government, whether federal, state, territorial or local; |
| (b) | a department, office or minister of a government acting in that capacity; or |
| (c) | a commission, delegate, instrumentality, agency, board or other governmental, semi-governmental, judicial, administrative, monetary or fiscal authority, whether statutory or not; |
Business Day means any day except a Saturday or a Sunday or other public holiday or bank holiday in South Australia;
Business Records means all financial statements, financial records, documents and other records in respect of the Company and the Assets;
Claim means any claim, cost, damages, debt, expense, tax, liability, loss, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind;
Company means eGlass Technologies Ltd (ACN 659 782 028);
Completion means completion of the sale and purchase of the Sale Shares in accordance with this agreement;
Completion Date means the date that is 2 Business Days after the date the Condition Precedent is satisfied or validly waived, or any other date that the parties agree in writing;
pg 1
Condition Expiry Date has the meaning given in clause 7.3;
Condition Precedent has the meaning given in clause 7.1;
Consequential Loss means, in respect of a breach or other act or omission, any loss or damage:
| (a) | which does not arise naturally or in the usual course of things from the breach, act or omission; or |
| (b) | which constitutes, or arises from or in connection with, a loss of revenue, profit or opportunity, loss of goodwill or loss of business reputation, even if that loss arises naturally or in the usual course of things from that breach, act or omission; |
Corporations Act means the Corporations Act 2001 (Cth);
Data Room Material means all information relating to the Company provided in writing by or on behalf of the Seller to the Buyer prior to the Agreement Date;
Distress Event means the happening of any of the following events in relation to a body corporate:
| (a) | the body corporate becomes a Chapter 5 body corporate under the Corporations Act; |
| (b) | without limiting paragraph (a), a controller, administrator, receiver, receiver and manager or analogous person is appointed to the body corporate or any of the body corporate’s property or any steps are taken for the appointment of such a person (except where the steps taken are reversed or abandoned within 10 Business Days); |
| (c) | any steps are taken (including, without limitation, the making or passing of an application, order or resolution) with respect to the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (unless those steps are stayed, withdrawn or dismissed within 10 Business Days); |
| (d) | the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; |
| (e) | the body corporate is or becomes, or its directors state that it is, or has become, unable to pay its debts as and when they become due and payable; or |
| (f) | any steps are taken to deregister the body corporate under the Corporations Act (except where the steps taken are reversed or abandoned within 10 Business Days); |
Encumbrance means any mortgage, pledge, lien, hypothecation, charge or other form of Security Interest or interest in the nature of a Security Interest (but excludes any such interest in favour of the Buyer) (and encumber has a corresponding meaning);
Government Authority means any federal, state, territory, county, municipality, district, local or other jurisdiction of any nature, or any political subdivision thereof, federal, state, local, municipal, foreign or other government, or government or governmental, quasi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity of any nature (including any governmental division, department, agency, commission, instrumentality, official, organisation, body or other entity and any court, arbitrator or other tribunal) having jurisdiction or a function in relation to the Company or the Assets or the subject matter of this agreement;
GST has the same meaning as it does in the GST Act;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated legislation and regulations;
GST Group has the same meaning as is given to that term in the GST Act;
Listing Rules means, in respect of a party, the listing rules of a recognised securities exchange, to the extent that party or its related body corporate is bound by those rules;
Loan Agreement means the loan agreement between the Seller and the Buyer dated on or about the date of this agreement;
Loss includes any loss, damage, cost, charge, liability or expense (including legal costs and expenses);
pg 2
PPSR means the ‘register’ as defined in the Personal Property Securities Act 2009 (Cth);
Purchase Price means US$6,800,000;
Sale Shares mean the number of shares that comprise 100% of the fully paid ordinary shares in the capital of the Company as at Completion;
Security Interest means:
| (a) | any security interest under the Personal Property Securities Act 2009 (Cth), mortgage, charge, pledge, lien, retention of title arrangement, set-off arrangement or other arrangement having the same or equivalent commercial effect as a grant of security; or |
| (b) | any agreement to create or give rise to any interest or arrangement of the type referred to in paragraph (a); |
Specific Security Deed means the specific security deed between the Buyer and the Seller dated on or about the date of this agreement;
Tax means any tax, duty, fee or penalty imposed by any Government Authority, including income tax, gross receipts, licence, employment, severance, occupation, premium, windfall profits, intangible, environmental, capital stock, profits, franchise, withholding, social security, disability, real estate, personal property, fringe benefits tax, capital gains tax, goods and services tax, stamp duty, payroll tax, bank debit tax, sales, use, transfer, value added, registration, alternative or add-on minimum, customs and excise, council rates, land tax, emergency services levy, water and sewerage rates, and/or any other tax or similar governmental charge or any kind including any interest, penalties or additions to tax, whether disputed or not, and any obligation to indemnify, assume or succeed to the liability of any other person in respect of any of the above tax, fee, duty or penalty;
Tax Warranty means the warranties set out at paragraph 9 of Schedule 1;
Title Warranty means the warranties set out at paragraphs 1, 2 and 3 of Schedule 1; and
Transaction Document means:
| (a) | this agreement; and |
| (c) | any other deed, instrument or document to which the Seller and the Buyer are parties at any time (whether alone or with other parties) which is expressed to be, or is agreed by the parties to that deed, instrument or document to be, a Transaction Document for the purpose of this agreement or any other Transaction Document; |
Warranties means the warranties given pursuant to Part 5 of this agreement and Warranty means any of them.
| 2. | Interpretation |
In this agreement, unless the context otherwise requires:
| 2.1 | the Introduction is correct; |
| 2.2 | headings do not affect interpretation; |
| 2.3 | singular includes plural and plural includes singular; |
| 2.4 | words of one gender include any gender; |
| 2.5 | a reference to time is a reference to Adelaide, Australia time; |
| 2.6 | a reference to “dollars”, “US$” or “$” is a reference to United States currency; |
| 2.7 | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
| 2.8 | a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure; |
pg 3
| 2.9 | reference to a person includes a corporation, body corporate, joint venture, association, government body, firm and any other entity; |
| 2.10 | a reference to a party is to a party to this agreement, and a reference to a party to an agreement includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
| 2.11 | a reference to this agreement includes this agreement as varied, supplemented, assigned or novated from time to time; |
| 2.12 | a provision must not be construed against a party only because that party prepared it; |
| 2.13 | a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed; |
| 2.14 | the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including” or “in particular”) or precede them or are included elsewhere in this agreement; |
| 2.15 | if a thing is to be done on a day which is not a Business Day, it must be done on the next Business Day; |
| 2.16 | another grammatical form of a defined expression has a corresponding meaning; and |
| 2.17 | an expression defined in the Corporations Act has the meaning given by that Act at the date of this agreement. |
Part 2 – Sale and purchase of Sale Shares
| 3. | Sale and purchase |
The Seller must sell, and the Buyer must buy, the legal and beneficial interest in the Sale Shares, free from Encumbrances, at Completion, on the terms and conditions of this agreement.
| 4. | Purchase Price |
The consideration for the Sale Shares is the Purchase Price.
| 5. | Payment of Purchase Price |
| 5.1 | The Buyer must pay the Purchase Price to the Seller at or before Completion. |
| 5.2 | The Buyer must pay the Purchase Price by entering the Loan Agreement and Specific Security Deed. |
| 6. | Property and risk |
Property and risk in the Sale Shares passes to the Buyer at Completion.
Part 3 – Completion
| 7. | Condition Precedent |
| 7.1 | The sale and purchase of the Sale Shares and the parties’ obligations under Parts 2 and 3 are conditional on the Buyer completing its legal, accounting and business due diligence and the results thereof being satisfactory to the Buyer in its sole and absolute discretion (Condition Precedent). |
| 7.2 | The Buyer will, through its employees, agents, representatives, accountants, and lawyers, have access to the Company’s records, information, auditors, accountants and senior personnel at all reasonable times, to enable the Buyer to conduct due diligence investigations of the Company and the business conducted by it. |
pg 4
| 7.3 | If the Buyer does not provide notice to the Seller by 5:00pm on the date that is 45 days after the Agreement Date (Condition Expiry Date) that it is satisfied with the results of its due diligence inquiries, and if the Condition Precedent is not waived by the Buyer by that time, the Buyer or the Seller may terminate this agreement at any time thereafter (provided that the Condition Precedent remains unsatisfied and not waived) with immediate effect by giving written notice to the other party. |
| 8. | Completion |
Completion will take place at 11:00am (Adelaide time) on the Completion Date by electronic exchange of documents or such other time and place agreed in writing between the parties.
| 9. | Buyer’s obligations at Completion |
At or before Completion, the Buyer must:
| 9.1 | pay the Purchase Price to the Seller; |
| 9.2 | deliver to the Seller, an original counterpart (duly executed by the Buyer) of: |
| (a) | this agreement; |
| (b) | the Loan Agreement; and |
| (c) | the Specific Security Deed. |
| 10. | Seller’s obligations at Completion |
At or before Completion, the Seller must:
| 10.1 | deliver to the Buyer: |
| (a) | an original counterpart (duly executed by the Seller) of: |
| (i) | this agreement; |
| (ii) | the Loan Agreement; and |
| (iii) | the Specific Security Deed; |
| (b) | share transfer forms in respect of the Sale Shares, in registrable form and in favour of the Buyer, duly executed by the Seller; |
| 10.2 | deliver to the Company original share certificates for the Sale Shares (or declarations in respect of lost certificates). |
| 11. | Interdependency |
| 11.1 | The parties’ obligations at Completion are interdependent and must be carried out contemporaneously. No delivery or payment will be deemed to have been made until all deliveries and payments under clauses 9 and 10 have been made and all actions under clauses 9 and 10 on Completion will be deemed to take place simultaneously. |
| 11.2 | If the Seller or the Buyer does not comply with all of their obligations at Completion, the other party may require, upon which each party must: |
| (a) | return every thing delivered, and repay every amount paid, to them at Completion; and |
| (b) | do all things necessary to reverse any action taken at Completion. |
pg 5
Part 5 – Warranties
| 12. | Warranties |
| 12.1 | Each Warranty is given as at the date or dates specified in relation to that Warranty. |
| 12.2 | No Warranty is limited by any other Warranty. |
| 12.3 | Each Warranty is also a representation. |
| 12.4 | Each party enters into this agreement and will Complete this agreement in reliance on the Warranties. |
| 12.5 | The Warranties remain in full force and are binding notwithstanding Completion. |
| 13. | Seller’s Warranties |
The Seller represents and warrants to the Buyer that each warranty set out in Schedule 1 is true and correct and not misleading in any material respect.
| 14. | Warranty qualifications |
Each Warranty given by the Seller is subject to and qualified by any fact, matter or circumstance:
| 14.1 | that was known to the Buyer (or any of its shareholders or officers) as at the Agreement Date or which the Buyer could reasonably be expected to know as at the Agreement Date having regard to the expertise of the Buyer and its representatives and advisers, including in each case as a result of its due diligence investigations; |
| 14.2 | provided for or disclosed in this agreement; |
| 14.3 | disclosed in, provided for, or ascertainable from, the Data Room Material; |
| 14.4 | disclosed in writing to the Buyer or its representatives and advisers by or on behalf of the Seller in connection with the due diligence investigations carried on by the Buyer and its representatives and advisers before the Agreement Date; |
| 14.5 | that would have been revealed by an inspection or search of: |
| (a) | the PPSR, any public register or records kept by ASIC or any other Government Authority; or |
| (b) | any information generally available to the public, |
in each case conducted on the Business Day before the Agreement Date, whether or not the Buyer has actual knowledge of those matters,
which is contrary to or inconsistent with the Warranty, and the Seller will not be liable for a breach of the Warranty due to the fact, matter or circumstance contradicting or being inconsistent with the Warranty.
| 15. | Buyer’s warranties |
The Buyer represents and warrants to the Seller that, as at the Agreement Date and at Completion:
| 15.1 | it has not entered into this agreement in its capacity as a trustee of any trust; |
| 15.2 | it is a corporation duly organised and validly existing under the laws of Australia and is in good standing under such laws; |
| 15.3 | it has the full corporate power and lawful authority to enter into this agreement and to consummate and perform its obligations under this agreement and each document necessary to give effect to this agreement (Completion Documents); |
| 15.4 | it has taken all necessary action to authorise the execution, deliver and performance of this agreement and the Completion Documents; |
pg 6
| 15.5 | the execution, delivery and performance of this agreement by the Buyer does not, and will not in the case of the Completion Documents, violate, breach or result in a contravention of its constituent documents, or any laws by which it is bound, or any authorisation, ruling, judgment or order by any Government Authority by which it is bound, or any other agreement, undertaking or instrument by which it is bound; |
| 15.6 | this agreement constitutes a legal, valid and binding obligation on the Buyer enforceable in accordance with its terms; and |
| 15.7 | it is not subject to a Distress Event. |
| 16. | Buyer’s acknowledgements |
The Buyer acknowledges and agrees that:
| 16.1 | to the maximum extent permitted by law, all representations and warranties implied by law in this agreement are excluded; |
| 16.2 | except as expressly provided for in this agreement, the Seller does not give any representations or warranties about anything including the completeness of any information provided to the Buyer about the Company, the Sale Shares or the Assets; |
| 16.3 | as at the Agreement Date, the Buyer and its shareholders and officers did not have knowledge of any fact, matter or circumstance which they considered (acting reasonably) may result, or give rise, to an Agreement Claim; |
| 16.4 | it has made and has relied on its own searches, investigations and enquiries in respect of the Company, Sale Shares, Project and Assets, including as part of its due diligence investigations, and has satisfied itself of the results of those searches, investigations and enquiries; |
| 16.5 | subject to the Warranties, it has not relied on any information supplied by the Seller or any of the Seller’s officers, representatives and agents, except to the extent that such information is expressly included in this agreement; |
| 16.6 | as part of its due diligence investigations and enquiries in respect of the Company, the Sale Shares and the Assets, it and its representatives and advisers have had access to all documents and information they have requested from the Seller; |
| 16.7 | irrespective of whether or not the Buyer’s due diligence was as full or exhaustive as the Buyer would have wished, it has nevertheless independently and without the benefit of any inducement, representations or warranty (other than the Warranties) from the Seller determined to enter into this agreement; |
| 16.8 | the Seller will not be liable for any Loss of, or Claim by, the Buyer, arising from or relating to any statement, representation, warranty, promise, undertaking or agreement in connection with the sale of the Sale Shares made by or on behalf of the Seller or resulting from or implied by conduct made in the course of communications or negotiations in connection with the sale of the Sale Shares not expressly set out in this agreement; |
| 16.9 | the Seller gives no representations or warranties whatsoever about future matters, including the future financial position or performance of the Company; and |
| 16.10 | any forecast, forward looking statement or other statement as to the future made by or on behalf of the Seller or resulting from or implied by conduct made in the course of communications or negotiations in connection with the sale of the Sale Shares may involve significant elements of subjective judgment and assumption as to future events which may or may not be correct, and there are usually differences between forecasts and actual results because events and actual circumstances frequently do not occur as forecast and these differences may be material. |
pg 7
Part 6 – Agreement Claims and limitations
| 17. | Notice of Agreement Claim |
If a party has any Claim under or in connection with this agreement (Agreement Claim) against the other party, then the first party (Claimant) must give notice in writing to the second party (Respondent) within 10 Business Days of becoming aware of the circumstances giving rise to such Agreement Claim, setting out reasonable particulars to identify the nature and scope of the Agreement Claim and the Claimant’s estimate of the monetary value of the Agreement Claim (Claim Notice).
| 18. | General limitations on Agreement Claims |
| 18.1 | The Seller is not liable to the Buyer for any Agreement Claim: |
| (a) | if the liability for the Agreement Claim is a contingent liability, unless and until that liability is an actual liability and is due and payable; |
| (b) | to the extent that the Loss giving rise to the Agreement Claim is Consequential Loss; |
| (c) | to the extent that the Agreement Claim arises from any act or omission of the Buyer or the Company after Completion; |
| (d) | to the extent that the Loss in relation to an Agreement Claim results from the Buyer’s failure to use reasonable endeavours to mitigate its Loss; |
| (e) | to the extent that the Agreement Claim would not have arisen but for a material restructure of the Company or Project after Completion; |
| (f) | to the extent any Loss giving rise to an Agreement Claim or the Agreement Claim is caused or contributed to by any action expressly permitted by this agreement or any document contemplated by or related to it; |
| (g) | to the extent the Buyer receives, or is entitled to receive, compensation for the Loss giving rise to the Agreement Claim, whether under an insurance policy, indemnity or otherwise; |
| (h) | to the extent that any Loss giving rise to an Agreement Claim or the Agreement Claim is attributable to: |
| (i) | the passing of, or any change in any law, decision, administrative practice or policy (including any change in any law, decision, administrative practice or policy, which takes effect retrospectively); or |
| (ii) | the change in any interpretation of any law, decision, administrative practice or policy (including any change in interpretation which takes effect retrospectively), |
after the Agreement Date;
| (i) | to the extent that the Agreement Claim or Loss arises from the Company taking a position in relation to the application of a Tax law or regulation that is inconsistent with the position taken by the Company before Completion, unless the Company is required to adopt an inconsistent position to comply with a Tax law or regulation; |
| (j) | to the extent that the Agreement Claim arises or is increased as a result of action taken or not taken by the Seller at the request, and with the prior approval, of the Buyer; and |
| (k) | if the breach is capable of remedy and has been remedied within 20 Business Days after the Seller receives written notice of the Agreement Claim, to the reasonable satisfaction of the Buyer. |
pg 8
| 18.2 | The Buyer is not liable to the Seller for any Agreement Claim: |
| (a) | if the liability for the Agreement Claim is a contingent liability, unless and until that liability is an actual liability and is due and payable; |
| (b) | to the extent that the Loss giving rise to the Agreement Claim is Consequential Loss; |
| (c) | to the extent that the Agreement Claim arises from any act or omission of the Buyer or the Company after Completion; |
| (d) | to the extent that the Loss in relation to an Agreement Claim results from the Seller’s failure to use reasonable endeavours to mitigate its Loss; |
| (e) | to the extent that the Agreement Claim would not have arisen but for a material restructure of the Company or Project after Completion; |
| (f) | to the extent any Loss giving rise to an Agreement Claim or the Agreement Claim is caused or contributed to by any action expressly permitted by this agreement or any document contemplated by or related to it; |
| (g) | to the extent the Seller receives, or is entitled to receive, compensation for the Loss giving rise to the Agreement Claim, whether under an insurance policy, indemnity or otherwise; |
| (h) | to the extent that any Loss giving rise to an Agreement Claim or the Agreement Claim is attributable to: |
| (i) | the passing of, or any change in any law, decision, administrative practice or policy (including any change in any law, decision, administrative practice or policy, which takes effect retrospectively); or |
| (ii) | the change in any interpretation of any law, decision, administrative practice or policy (including any change in interpretation which takes effect retrospectively), |
after the Agreement Date;
| (i) | to the extent that the Agreement Claim or Loss arises from the Company taking a position in relation to the application of a Tax law or regulation that is inconsistent with the position taken by the Company before Completion, unless the Company is required to adopt an inconsistent position to comply with a Tax law or regulation; |
| (j) | to the extent that the Agreement Claim arises or is increased as a result of action taken or not taken by the Buyer at the request, and with the prior approval, of the Seller; and |
| (k) | if the breach is capable of remedy and has been remedied within 20 Business Days after the Buyer receives written notice of the Agreement Claim, to the reasonable satisfaction of the Seller. |
| 18.3 | If the Seller pays to the Buyer an amount to settle or discharge an Agreement Claim and the Buyer subsequently recovers any amount or receives any benefit which is referrable to that Agreement Claim or any fact, matter or circumstance giving rise to the Agreement Claim then the Buyer must pay to the Seller an amount equal to the lesser of: |
| (a) | the amount actually recovered or the value of the tangible benefit received (less all reasonable costs and expenses of recovery); and |
| (b) | the amount paid by the Seller to settle or discharge the Agreement Claim. |
| 19. | Limitation on Agreement Claims |
| 19.1 | The Respondent is not liable to the Claimant for any Agreement Claim unless: |
| (a) | the Claimant has provided to the Respondent a Claim Notice that: |
| (i) | meets the requirements of clause 17; and |
| (ii) | is given within 12 months after Completion; |
pg 9
| (b) | a proceeding is filed with a court of competent jurisdiction in respect of the Agreement Claim, and validly served on the Respondent, within six (6) months after the later of: |
| (i) | the date of receipt by the Respondent of the Claim Notice; and |
| (ii) | the date a sufficient number of written notices of Agreement Claims by the Claimant for, or in connection with, Agreement Claims have been received by the Respondent which in aggregate exceed the minimum Agreement Claims threshold referred to in clause 19.1(c); and |
| (c) | the amount finally agreed or adjudicated to be payable in respect of that Agreement Claim exceeds $50,000, or the aggregate amount finally agreed or adjudicated to be payable in respect of all Agreement Claims exceeds $100,000. |
| 19.2 | An Agreement Claim will be taken to be waived or withdrawn and will be barred and unenforceable (if it is not previously satisfied, settled or withdrawn) if the Claimant does not comply with clauses 19.1(a) and 19.1(b). |
| 19.3 | This clause 19 does not apply in respect of Claims for payment of the Purchase Price or any portion of it. |
| 20. | Maximum liability of the Parties |
| 20.1 | The Seller’s aggregate liability in respect of: |
| (a) | an Agreement Claim in respect of a breach of a Title Warranty or a Tax Warranty, is limited to $1,000,000; or |
| (b) | all other Agreement Claims, is limited to $500,000, |
and for the avoidance of doubt the Seller’s maximum aggregate liability for any and all Agreement Claims cannot exceed $1,000,000 when taking into account the claims under clauses 20.1(a) and (b).
| 20.2 | The Buyer’s aggregate liability in respect of all Agreement Claims other than claims for the payment of the Purchase Price is limited to $500,000. |
| 21. | Limitations do not apply |
None of the qualifications or limitations in this Part applies to any Agreement Claim by a Claimant to the extent that it arises out of, or is increased as a result of, any fraud, wilful default or wilful concealment by the Respondent.
Part 7 – General
| 22. | Interest on unpaid monies |
If any monies payable under this agreement are not paid on or before the relevant due date for payment, then interest is payable on the amount due from but excluding that due date to and including the date on which the moneys are paid. The rate of interest is a rate equal to the Cash Rate Target published by the Reserve Bank of Australia from time to time plus 5% per annum. Interest will be calculated on a daily basis and compounded monthly.
| 23. | GST |
| 23.1 | This clause applies if a party makes a taxable supply (within the meaning of any law imposing GST) in connection with this agreement for consideration unless such consideration is expressly provided to be “GST inclusive”. |
| 23.2 | Subject to this clause, the consideration payable by a party represents the value of the taxable supply. |
pg 10
| 23.3 | Subject to clause 23.5, the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, a further amount calculated by multiplying: |
| (a) | the amount otherwise payable; by |
| (b) | the GST rate for the time being. |
| 23.4 | If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled on the acquisition of the supply for which that loss, cost or expense is incurred. The party is assumed to be entitled to full input tax credits unless it demonstrates that its entitlement is otherwise prior to the date on which payment must be made by the other party. |
| 23.5 | A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply. |
| 23.6 | If a person is a member of a GST Group references to GST which the person must pay and to input tax credits to which the person is entitled include GST which the representative member of the GST Group must pay and input tax credits to which the representative member is entitled. |
| 24. | Consents and approvals |
| 24.1 | Unless otherwise provided, a party may give or withhold its determination, consent, agreement, authorisation or approval: |
| (a) | in that party’s absolute discretion; |
| (b) | with or without conditions and without giving reasons; |
| (c) | when that party chooses. |
| 24.2 | A party’s determination, consent, agreement, authorisation or approval is valid only if it is in writing and signed by that party or its authorised representative. |
| 25. | Confidentiality |
| 25.1 | A party (using party) may only use Confidential Information of another party: |
| (a) | if necessary to perform the using party’s obligations, or enforce the using party’s rights, under this agreement; or |
| (b) | if the other party consents to the use. |
| 25.2 | A party (disclosing party) may only disclose Confidential Information of another party: |
| (a) | to the disclosing party’s professional advisers; |
| (b) | if required by law or the Listing Rules; |
| (c) | if necessary to perform the disclosing party’s obligations or exercise the disclosing party’s rights under this agreement; |
| (d) | if the other party consents to the disclosure; |
| (e) | if and to the extent the information is publicly available other than by a breach of the disclosing party of this agreement, or any other agreement; |
| (f) | if the information is already in the possession of the disclosing party or comes into the possession of the disclosing party other than by breach of this agreement, or any other agreement; or |
| (g) | to the extent reasonably necessary to seek debt finance or equity investment to the party, or in relation to a potential third party acquisition of the whole or part of an interest in the party, provided the disclosure is to a person subject to equivalent obligations of confidentiality and the other party has been informed of the disclosure. |
pg 11
| 25.3 | In this clause 25, the term “Confidential Information” means: |
| (a) | any term of this agreement; |
| (b) | trade secrets, know-how, financial data, accounting information, statistics, research, scientific, technical, product, market or pricing information of a party or relating to a party’s systems, business, employees or contractors; |
| (c) | any other information belonging to a party that is marked “confidential”; and |
| (d) | any other information belonging to a party which is of a confidential nature. |
| 26. | Public announcements and communications |
Except if required by law or the Listing Rules, no party may make a public announcement or public communication of any kind (including, but not limited to, media announcements) in connection with, or regarding the existence of, the terms of this agreement or any matter contemplated by this agreement without first consulting the other party.
| 27. | Assignment |
A party may only assign its rights or obligations under this agreement with the written consent of the other party.
| 28. | Amendment |
This agreement may only be amended in writing signed by the parties.
| 29. | No waiver |
| 29.1 | A party may only waive a breach of this agreement in writing signed by that party or its authorised representative. |
| 29.2 | A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches). |
| 30. | No merger |
The rights and obligations under this agreement do not merge on completion of any transaction contemplated by this agreement.
| 31. | Further action |
| 31.1 | Each party must do all things necessary to carry out this agreement, including: |
| (a) | executing documents; and |
| (b) | ensuring its employees and agents perform their obligations. |
| 31.2 | A party must not do anything that will prevent this agreement from being carried out. |
| 32. | Entire agreement |
| 32.1 | This document records the entire agreement between the parties about its subject matter. |
| 32.2 | The parties exclude all terms implied by law, where possible. |
| 32.3 | Neither party has given any warranty or made any representation to the other party about the subject matter of this agreement, other than those warranties and representations appearing in this document. |
| 33. | Contribution |
Damages for any breach of this agreement are reduced to the extent that the claimant caused or contributed to the damage.
pg 12
| 34. | Execution and counterparts |
| 34.1 | Each party agrees that: |
| (a) | execution of this agreement by electronic signatures (including other verifiable forms of electronic acceptance) is appropriate in the circumstances and consents to such methods of execution; |
| (b) | by its officers applying their electronic signatures (or complying with the requirements of any other verifiable form of electronic acceptance), that party will have indicated its willingness to be bound by the terms of this agreement. |
| 34.2 | This agreement may be executed in any number of counterparts. A counterpart may be a scanned PDF format or a document created by any other means of legible electronic production. |
| 34.3 | Together all counterparts make up one document. |
| 34.4 | If this agreement is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party, or would be deemed to have received it if a notice. |
| 35. | Notice |
| 35.1 | Notice must be in writing and in English, and may be given by an authorised representative of the sender. |
| 35.2 | Notice may be given to a person: |
| (a) | personally; |
| (b) | by leaving it at the person’s address last notified; |
| (c) | by sending it by pre-paid mail to the person’s address last notified; |
| (d) | by sending it by electronic mail to the person’s email address last notified. |
| 35.3 | Notice is deemed to be received by a person: |
| (a) | when left at the person’s address; |
| (b) | if sent by pre-paid mail, 5 Business Days after posting; |
| (c) | if sent by electronic mail, on the day after the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted. |
However, if the notice is deemed to be received on a day which is not a Business Day, or after 5pm on a Business Day, it is deemed to be received at 9am on the next Business Day.
| 35.4 | If two or more people comprise a party, notice to one is effective notice to all. |
| 36. | Governing law |
| 36.1 | This agreement is governed by the law of South Australia. |
| 36.2 | The parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia and the South Australian division of the Federal Court of Australia, and the courts of appeal from them. |
| 36.3 | No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction. |
| 37. | Costs |
The parties must pay their own cost of preparing this agreement and any document required by this agreement.
pg 13
Schedule 1 – Seller’s Warranties
| 1. | Sale Shares |
The Seller represents and warrants that, as at the Agreement Date and as at Completion:
| 1.1 | the Sale Shares are fully paid; |
| 1.2 | the Sale Shares comprise 100% of the issued capital of the Company; |
| 1.3 | other than the Seller, no other person: |
| (a) | holds any shares or other securities in the Company; |
| (b) | has any rights to be issued with any shares in the Company; |
| (c) | has any rights or options over the Sale Shares or any shares in the Company; and |
| (d) | has any securities that are convertible to, or exercisable for, shares in the Company; |
| 1.4 | it has legal and beneficial ownership of the Sale Shares free and clear of all Encumbrances; and |
| 1.5 | the transfer of the Sale Shares held by it in accordance with this agreement does not contravene a provision of the Company’s constitution and is capable of being registered under the Company’s constitution. |
| 2. | Seller |
The Seller represents and warrants that, as at the Agreement Date and as at Completion:
| 2.1 | it has the right to enter into this agreement and to sell the Sale Shares held by it, without the consent of any person; |
| 2.2 | it is a corporation duly organised and validly existing under the laws of Australia and is in good standing under such laws; |
| 2.3 | it is not subject to a Distress Event; and |
| 2.4 | it has power to execute this agreement and to perform its obligations under this agreement. |
| 3. | Company |
| 3.1 | The Seller represents and warrants that, as at the Agreement Date and the Completion Date: |
| (a) | the Company is a corporation duly incorporated, validly existing under the laws of Australia, and is in good standing under such laws; |
| (b) | the Company has not been de-registered and is not liable to be de-registered; |
| (c) | the Company is not subject to a Distress Event; |
| (d) | the Company has full corporate power and lawful authority to own the Assets; and |
| (e) | the Company has not received notice of any application or intended application to rectify the register of shareholders or any other register of the Company |
| 3.2 | The Seller represents and warrants that, as at the Agreement Date and as at Completion: |
| (a) | there is no resolution, agreement or proposal to issue any additional shares, securities convertible into shares, options or other pre-emptive rights to shares, or other interests in the share capital of the Company (other than to the Seller in order to convert Intercompany Payables to equity prior to Completion); |
| (b) | it has not entered into any contract or other arrangement about the exercise or variation of rights attaching to the Sale Shares held by it. |
pg 14
| 4. | Liabilities |
The Seller represents and warrants that, as at Completion, the Company will have no material liabilities except liabilities incurred with the prior written consent of the Buyer.
| 5. | Employees |
The Seller represents and warrants that, as at the Agreement Date and as at Completion, the Company has no employees.
| 6. | Business Records |
The Seller represents and warrants that, as at the Agreement Date and as at Completion:
| 6.1 | the Business Records are in the possession or control of the Company; and |
| 6.2 | the financial records and financial statements of the Company are substantially complete and do not contain or reflect any material inaccuracies. |
| 7. | Legal proceedings |
The Seller represents and warrants that, as at the Agreement Date:
| 7.1 | there are no subsisting Claims and, so far as it is aware, there are no threatened Claims, in respect of the Company or the Assets; |
| 7.2 | it does not know of any circumstance which may result in any Claim in respect of the Company or the Assets; and |
| 7.3 | there are no unsatisfied judgments, orders, awards or decisions in respect of the Company or the Assets. |
| 8. | Insurance |
| 8.1 | The Seller represents and warrants that, as at the Agreement Date: |
| (a) | it does not know of any circumstance which may result in any particular insurance claim; and |
| (b) | it does not know of any circumstance which would make any of those insurances and cover notes unenforceable or which would permit an insurer to cancel any of those insurances. |
| 9. | Tax |
| 9.1 | The Seller represents and warrants that, as at the Agreement Date and as at Completion: |
| (a) | the Company is not a member of a tax consolidated group; |
| (b) | the Company is registered for GST; |
| (c) | the Company is not liable for any Tax arising in respect of the period before Completion, other than any Tax: |
| (i) | incurred with the prior written consent of the Buyer; or |
| (ii) | arising from activities undertaken with the prior written consent of the Buyer; |
| (d) | the Company is not involved in a dispute about its liability to lodge a return under a law about Tax, or to pay any Tax; and |
| (e) | the Company has not contravened any anti-avoidance provisions of any law relating to Tax. |
| 9.2 | The Seller represents and warrants that, as at the Agreement Date: |
| (a) | it is not aware of any pending or threatened Tax audit in respect of the Company; and |
pg 15
| (b) | the Company has not received any notice, order or direction from any Government Authority within three years before the Agreement Date relating to any actual or suspected breach of any applicable law relating to Tax. |
| 10. | Information |
The Seller represents and warrants that so far as it is aware as at the Agreement Date and as at the Completion Date the Data Room Material is not misleading or deceptive.
| 11. | Assets |
The Seller represents and warrants that, as at the Agreement Date and as at Completion:
| 37.1 | the Company is the legal and beneficial owner of all of the Assets, and no third party has any rights to the Assets; |
| 37.2 | the Company has not granted any option or right of pre-emption or first refusal in respect of any of the assets of the Company to any third party; |
| 37.3 | no third party has rights or interests (including a mortgage, bill of sale, charge, lien, pledge, trust, encumbrance, power or title retention arrangement, right of set-off, assignment of income, garnishee order, monetary claim, flawed deposit arrangement or any arrangement having a similar effect or a PPS Security Interest as defined under the Personal Property Securities Act 2009 (Cth) over any of the assets of the Company. |
pg 16
| Executed as an agreement on | 2022 |
Executed by Integrated Media Technology Ltd in accordance
with section 127 of the Corporations Act 2001 (Cth):
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) |
| Executed by Capital Stone Holdings Limited : | ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
pg 17
Exhibit 99.2
Loan Agreement
Integrated Media Technology Limited
ACN 132 653 948
Capital Stone Holdings Limited
 |
| Contents | ||
| 1. | Definitions | 1 |
| 2. | Interpretation | 4 |
| 3. | Loan | 5 |
| 4. | Purpose | 5 |
| 5. | Repayment of Loan | 5 |
| 6. | Interest on Loan | 6 |
| 7. | Default interest | 6 |
| 8. | Security | 6 |
| 9. | Event of Default | 7 |
| 10. | Effect of Event of Default | 8 |
| 11. | Repayment default | 8 |
| 12. | No duty | 8 |
| 13. | Indemnity | 8 |
| 14. | The Lender’s certificate | 8 |
| 15. | Payments | 9 |
| 16. | General warranties | 9 |
| 17. | Trusts | 9 |
| 18. | Warranties repeat and continue | 10 |
| 19. | Continuing indemnities | 11 |
| 20. | Assignment | 11 |
| 21. | Amendment | 11 |
| 22. | No waiver | 11 |
| 23. | Further action | 11 |
| 24. | No merger | 11 |
| 25. | Counterparts | 11 |
| 26. | Notice | 11 |
| 27. | Consents and approvals | 12 |
| 28. | Governing law | 12 |
| 29. | Severance | 12 |
| 30. | Costs | 12 |
pg i
Parties
Party 1
Integrated Media Technology Limited ACN 132 653 948 of Level 7, 420 King William Street Adelaide South Australia 5000 (Lender)
Party 2
Capital Stone Holdings Limited a company incorporated in the British Virgin Islands with its registered address at Overseas Management Company Trust (BVI) LTD., OMC Chambers, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands (Borrower)
Introduction
| A. | The Borrower has asked the Lender to provide the Loan. |
| B. | The Lender has agreed to provide the Loan to the Borrower. |
| C. | The parties wish to document the terms of the Loan by way of this agreement. |
Operative clauses
| 1. | Definitions |
Unless otherwise specified, in this agreement:
ASX means ASX Limited;
Business Day means any day except a Saturday or a Sunday or other public holiday in South Australia;
Collateral has the meaning given to that term in the Security;
Collateral Security has the meaning given to that term in the Security;
Company means eGlass Technologies Ltd (ACN 659 782 028);
Control means:
| (a) | in relation to any body corporate, the ability of any persons to exercise control (which includes the ability to remove or appoint all or a majority of the directors of that body corporate) over the body corporate by virtue of holding the voting shares in that body corporate or by any other means whatsoever; and |
| (b) | in relation to a trust, the ability of any persons to exercise control (which includes the ability to remove or appoint a trustee of the trust) of the trust; |
Corporations Act means the Corporations Act 2001 (Cth);
Distress Event means the happening of any of the following events in relation to a person:
| (a) | where the person is a body corporate: |
| (i) | the body corporate becomes a Chapter 5 body corporate under the Corporations Act or steps are taken towards making the body corporate a Chapter 5 body corporate (but not where the steps taken consist only of making an application to a court and the application is withdrawn or dismissed within 10 Business Days); |
pg 1
| (ii) | without limiting paragraph (i), a controller, administrator, receiver, receiver and manager or analogous person is appointed to the body corporate or any of the body corporate’s property (except where the other party is satisfied that the appointment is capable of being set aside and it is set aside within 5 Business Days of the appointment being made) or any steps are taken for the appointment of such a person (except where the steps taken are reversed or abandoned within 10 Business Days); |
| (iii) | the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (except where the other party is satisfied that the appointment is capable of being set aside and it is set aside within 5 Business Days of the appointment being made); |
| (ii) | any steps are taken (including, without limitation, the making or passing of an application, order or resolution) with respect to the appointment of a liquidator or provisional liquidator for the winding up of the body corporate (unless those steps are stayed, withdrawn or dismissed within 10 Business Days); |
| (v) | the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; |
| (vi) | the body corporate suspends payment of all or a class of its debts, or enters, or takes any step towards entering, a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; |
| (vii) | the body corporate is or becomes, or its directors state that it is, or has become, unable to pay its debts as and when they become due and payable; |
| (viii) | the body corporate is taken by applicable law to be (or if a court would be entitled or required to presume the body corporate is) unable to pay its debts; |
| (ix) | a distress, attachment, execution, or other process of a Government Agency is issued against, levied or entered upon an asset of the body corporate in an amount exceeding $100,000 and is not set aside or satisfied within 10 Business Days; |
| (x) | any Security Interest for an amount in excess of $100,000 is enforced, or becomes capable of being enforced, against an asset of the body corporate or of a related body corporate; |
| (xv) | the body corporate is deregistered or any steps are taken to deregister the body corporate under the Corporations Act (except where the steps taken are reversed or abandoned within 10 Business Days); |
| (xvii) | the body corporate suspends payment of all or a class of its debts; |
| (xviii) | the body corporate enters into or resolves to enter into any arrangements, compositions or compromise with, or assignment for the benefit of, any of its creditors; |
| (xix) | the body corporate ceases or threatens to cease to carry on its business or any major part of its business; |
| (xx) | without limiting the foregoing, an event affecting the solvency of the body corporate, if domiciled in a foreign jurisdiction, in any manner similar to the way in which any one of the foregoing events would affect the body corporate if it was domiciled in Australia; or |
| (xxi) | anything analogous to or substantially similar effect to any of the above events; and |
| (b) | where the person is a natural person: |
| (i) | the person authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors; |
pg 2
| (ii) | a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; |
| (iii) | the person commits an act of bankruptcy or has a bankruptcy notice issued against them; |
| (v) | a receiver or trustee for creditors in bankruptcy is appointed to any of the person’s property; |
| (vi) | the person becomes an “insolvent under administration” within the meaning of the Corporations Act; |
| (vii) | the person dies, is imprisoned or becomes incapable of managing his or her own affairs; or |
| (viii) | anything analogous to having a substantially similar effect to any of the above events. |
Draw Date means the date of Completion under the Share Sale and Purchase Agreement or such other date as may be agreed between the parties in writing;
Event of Default means an event of default specified in clause 9;
Finance Document means each of:
| (a) | this agreement; |
| (b) | each Security; |
| (c) | each Guarantee; and |
| (d) | any document which the parties agree is a “finance document” for the purposes of this agreement; |
Financial Indebtedness means any debt or other monetary liability or indebtedness in respect of moneys borrowed or raised or financial accommodation;
Government Agency means any government, intergovernmental or any governmental or semi-governmental entity, judicial entity, authority, agency, commission, corporation or body and any regulatory or self-regulatory organisation or authority or body established under applicable law;
Interest Rate means 5% per annum;
IPO means an initial public offering of shares in the Company pursuant to a prospectus to be lodged with ASIC, in support of an application by the Company to be admitted to the official list of ASX;
IPO Price means the price at which new shares in the Company are offered to the public pursuant to the IPO;
Listing Rules means the Listing Rules of ASX;
Loan means the principal amount of US$6,800,000
Outstanding Moneys means:
| (a) | the Loan; |
| (b) | any money capitalised by the Lender under this agreement; |
| (c) | any default interest owing under this agreement; |
| (d) | all interest, fees, costs, expenses and other amounts owing to the Lender by the Borrower under a Finance Document; |
| (e) | any costs or expenses reasonably incurred by the Lender in the recovery or attempted recovery of any other of the Outstanding Moneys; |
| (f) | any fees, costs or expenses incurred by the Lender in the exercise or attempted exercise of any right and remedy conferred by a Finance Document or by legislation; and |
pg 3
| (g) | any other amount owing under a Finance Document, that remains outstanding; |
PPSA means the Personal Property Security Act 2009 (Cth);
Relevant Person has the meaning given to that term in the Security;
Remedy Period has the meaning given to that term in clause 9.2(a);
Security means the specific security deed dated on or about the date of this agreement between the Borrower and the Lender;
Security Interest includes:
| (a) | any security interest under the PPSA; |
| (b) | any mortgage, charge, pledge, hypothecation, lien, retention of title arrangement, set-off arrangement or other arrangement having the same or equivalent commercial effect as a grant of security; or |
| (c) | any agreement to create or give rise to any interest or arrangement of the type referred to in paragraphs (a) or (b); |
Secured Money has the meaning given to that term in the Security;
Share Sale and Purchase Agreement means the share sale and purchase agreement between the Lender and the Borrower dated on or about the date of this agreement;
Transaction Party means:
| (a) | the Borrower; |
| (b) | any other “transaction party” as that term is defined in a Finance Document; and |
| (c) | any other person the parties agree is a “transaction party” for the purposes of this agreement; and |
Term has the meaning given to that term in clause 5.1.
| 2. | Interpretation |
In this agreement, unless the context otherwise requires:
| 2.1 | the Introduction is correct; |
| 2.2 | headings do not affect interpretation; |
| 2.3 | singular includes plural and plural includes singular; |
| 2.4 | words of one gender include any gender; |
| 2.5 | a reference to time is a reference to Adelaide, Australia time; |
| 2.6 | a reference to “dollars”, “US$” or “$” is a reference to United States currency; |
| 2.7 | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
| 2.8 | a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure; |
| 2.9 | reference to a person includes a corporation, body corporate, joint venture, association, government body, firm and any other entity; |
| 2.10 | a reference to a party is to a party to this agreement, and a reference to a party to an agreement includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
pg 4
| 2.11 | a reference to this agreement includes this agreement as varied, supplemented, assigned or novated from time to time; |
| 2.12 | reference to two or more people means each of them individually and all of them jointly; |
| 2.13 | if a party comprises two or more people: |
| (a) | a promise by that party binds each of them individually and all of them jointly; |
| (b) | a right given to that party is given to each of them individually; |
| (c) | a representation, warranty or undertaking by that party is made by each of them individually; |
| 2.14 | a provision must not be construed against a party only because that party prepared it; |
| 2.15 | a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed; |
| 2.16 | the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including” or “in particular”) or precede them or are included elsewhere in this agreement; |
| 2.17 | if a thing is to be done on a day which is not a Business Day, it must be done on the next Business Day; |
| 2.18 | another grammatical form of a defined expression has a corresponding meaning; |
| 2.19 | an expression defined in the Corporations Act 2001 (Cth) has the meaning given by that Act at the date of this agreement. |
| 3. | Loan |
The Lender agrees to lend to the Borrower the Loan in a single lump sum on the Draw Date.
| 4. | Purpose |
| 4.1 | The Borrower must only use the proceeds of the Loan for paying the Purchase Price under the Share Sale and Purchase Agreement. |
| 4.2 | The Lender is not obliged to ensure compliance with this clause. |
| 5. | Repayment of Loan |
| 5.1 | The term of the Loan is two years from the Draw Date (Term). |
| 5.2 | Subject to subclauses 5.3 and 5.4 and clause 6, the Borrower must repay to the Lender any Outstanding Moneys on the expiration of the Term. |
| 5.3 | The Borrower may, at its option, at any time repay to the Lender all or part of the Outstanding Moneys before the expiration of the Term. |
pg 5
| 5.4 | If the shares in the Company have become listed on ASX before the end of the Term, the Outstanding Moneys may be repaid by: |
| (a) | subject to clause 5.6, at the Borrower’s election, and subject to any approvals required under the Listing Rules, the Borrower transferring to the Lender the number of shares in the Company calculated as follows: |
Where Share Price means the lower of:
| (i) | 90% multiplied by the volume weighted average price per share of in the Company as reported on the ASX for the 5 consecutive trading days up to the day before the Outstanding Amount is repaid; or |
| (ii) | the IPO Price multiplied by 120%; or |
| (b) | subject to clause 5.6, at the Lender’s election, and subject to any approvals required under the Listing Rules, the Borrower transferring to the Lender the number of shares in the Company calculated by dividing the amount of Outstanding Money by the IPO Price. If the Borrower does not hold sufficient shares in the Company to discharge its obligation to transfer shares in the Company pursuant to this clause 5.4(b), the Borrower must repay the amount of any Outstanding Money that has not been repaid by a transfer of shares in the Company, to the Lender by an electronic transfer of funds to a bank account nominated by the Lender for that purpose. |
| 5.5 | The Borrower or the Lender may only make an election under clause 5.4(a) or 5.4(b), respectively, during the period of 15 days after the shares in the Company have become listed on ASX. If neither the Borrower nor the Lender makes an election under clause 5.4 by the date that is 15 days after the date the shares in the Company have become listed on ASX, the Lender will be deemed to have made an election under clause 5.4(b). |
| 5.6 | Upon a party making or being deemed to have made an election under clause 5.4, the other party will no longer have any right to make an election under that clause. |
| 6. | Interest on Loan |
| 6.1 | The Borrower must pay to the Lender interest at the Interest Rate on the Outstanding Moneys. |
| 6.2 | Interest is calculated and accrues from day to day, from the Draw Date until and including the date on which all Outstanding Moneys are repaid. |
| 6.3 | Accrued interest is capitalised and must be paid by no later than the expiration of the Term. |
| 7. | Default interest |
| 7.1 | The Borrower must pay to the Lender interest on money due and payable to the Lender under the Finance Documents but unpaid at the rate equal to 5% above the Interest Rate. |
| 7.2 | Default interest accrues from day to day, from the day the interest or other money becomes payable until and including the day of payment. |
| 7.3 | The Lender may capitalise accrued default interest at any time by providing written notice to the effect to the Borrower. |
| 8. | Security |
| 8.1 | Payment of the Outstanding Moneys is secured by the Security. |
| 8.2 | The Security must: |
| (a) | be in a form acceptable to the Lender; |
| (b) | be properly executed; |
| (c) | be properly stamped and registered (if applicable); and |
| (d) | in respect of the Security, have the priority contemplated by the parties to it. |
pg 6
| 9. | Event of Default |
It will be an Event of Default if:
| 9.1 | the Borrower or any other Transaction Party fails to pay an amount under a Finance Document when it falls due; |
| 9.2 | the Borrower or any other Transaction Party breaches or is in default of its obligations under a Finance Document (other than an obligation referred to in clause 9.1); and |
| (a) | by written notice to the Borrower or that Transaction Party, the Lender requires remedy of the default within 14 days or any longer period the Lender allows (Remedy Period); and |
| (b) | the Borrower or that Transaction Party is still in default at the end of that Remedy Period; |
| 9.3 | an “event of default”’ (howsoever expressed or defined) occurs under a Finance Document, a Collateral Security, or another Security Interest in the Collateral granted to any person; |
| 9.4 | a representation, warranty or statement made or deemed to be made by a Transaction Party is untrue or misleading in any material respect, or becomes false or misleading; |
| 9.5 | the Borrower or any other Transaction Party stops payment, or threatens to do so; |
| 9.6 | the Lender reasonably considers that the financial position of the Borrower or any other Transaction Party is materially impaired; |
| 9.7 | the Borrower or any other Transaction Party reduces its capital or buys-back its shares, or takes steps to do so; |
| 9.8 | a Transaction Party gives financial assistance for the acquisition of shares in that Transaction Party without the Lender’s consent; |
| 9.9 | without the Lender’s consent: |
| (a) | Control of the Borrower or any other Transaction Party changes; or |
| (b) | there is a change in the directors of the Borrower or any other Transaction Party; |
| 9.10 | without the Lender’s consent, the Borrower or any other Transaction Party alters its constitution; |
| 9.11 | this deed, the Security, or any other Finance Document (or any part thereof) is terminated or is able to be terminated or is or becomes capable of becoming void, voidable, illegal, invalid, ineffective, or unenforceable or of limited force and effect; |
| 9.12 | an undertaking, given to the Lender by or for the Borrower or any other Transaction Party, in respect of any Finance Document, the Collateral or a Collateral Security, is not wholly performed within any period specified in the undertaking (or if no period is specified, within 30 days after the date of the undertaking); |
| 9.13 | the Borrower or any other Transaction Party fails to meet any lawful demand made by the Lender under a Finance Document within seven days of such demand; |
| 9.14 | the Security is not binding or any person alleges that the Security is not binding; |
| 9.15 | the Security ceases to have the priority it purports to have under or in connection with a Finance Document; |
| 9.16 | a Security Interest over any property which is the subject of a Security becomes unenforceable; |
| 9.17 | any other indebtedness of the Borrower or any other Transaction Party becomes due and payable or capable of being declared due and payable before its stated maturity other than as a result of an optional right of prepayment in the absence of default; |
| 9.18 | there is a default under a document in respect of any Financial Indebtedness or any such document becomes enforceable; |
| 9.19 | without the Lender’s consent, the Borrower or any other Transaction Party does anything which in the opinion of the Lender reduces or would have the likely consequence of reducing the value or effectiveness of the Security; |
pg 7
| 9.20 | a Distress Event occurs in respect of the Borrower or any other Transaction Party; |
| 9.21 | there occurs any other event or series of events, whether related or not (including, without limitation, any material adverse change in the business, assets or financial conditions of the Borrower or any other Transaction Party or a Relevant Person or any other person) which in the absolute and unfettered opinion of the Lender could affect: |
| (a) | the ability or willingness of the Borrower or any other Transaction Party to perform its respective obligations to the Lender; or |
| (b) | the value to the Lender of the Security or any Collateral Security; or |
| 9.22 | any of the above events occur in respect of another person liable to pay any Secured Money (including any other Transaction Party). |
| 10. | Effect of Event of Default |
Despite any delay or previous waiver by the Lender, if an Event of Default has occurred, the Lender may (in addition to all or any of the Lender’s rights and remedies under the Finance Documents, any rule of common law, any principles of equity and/or under any legislation) do any or all of the following:
| 10.1 | make all the Outstanding Moneys immediately payable by written demand to the Borrower; |
| 10.2 | enforce the Guarantee; and |
| 10.3 | enforce the Security. |
| 11. | Repayment default |
If the Lender demands the repayment of the whole or any part of the Outstanding Moneys under clause 10.1 and the Borrower does not comply with that demand within 7 days of receipt of the Lender’s written demand, the Lender may immediately:
| 11.1 | sue the Borrower for the whole of the Outstanding Moneys as a debt; and/or |
| 11.2 | exercise all or any of the Lender’s rights and remedies under this agreement, any rule of common law, any principles of equity and/or under any legislation. |
| 12. | No duty |
The Lender may exercise its powers as it thinks fit, is not obliged to exercise any power and is not liable for any loss caused by the exercise, non-exercise, attempted exercise, delayed exercise or past exercise of a power.
| 13. | Indemnity |
The Borrower indemnifies the Lender against all claims, costs, liability, losses and expenses in respect of an Event of Default, the exercise, non-exercise, attempted exercise or delayed exercise of any power by the Lender and any claim in respect of anything done or not done in relation to or in connection with this agreement. In this clause 13, Lender includes any attorney, employee, officer, proprietor, principal, director, manager, agent, consultant, contractor, beneficiary, shareholder, and professional adviser of the Lender.
| 14. | The Lender’s certificate |
A certificate signed by or for the Lender as to:
| 14.1 | the amount of money owing to the Lender on a certain date; |
| 14.2 | any other matter in respect of this agreement; |
is sufficient evidence of the matter unless proved incorrect.
pg 8
| 15. | Payments |
The Lender may use any payment received from the Borrower in satisfying money due from the Borrower in any way that the Lender determines.
| 16. | General warranties |
The Borrower represents and warrants that, except as disclosed in writing to the Lender before the date of this agreement:
| 16.1 | the Borrower has power and authority to enter this agreement and to perform its obligations under this agreement; |
| 16.2 | by entering into this agreement, the Borrower does not breach any applicable law, any contract, arrangement, understanding (written or unwritten) or any other binding arrangement, or any provision of the Borrower’s constitution or similar documents (if relevant); |
| 16.3 | a Distress Event has not occurred in respect of the Borrower or any other Transaction Party; |
| 16.4 | the Borrower and each Transaction Party are able to pay all their debts as and when they become due and payable; |
| 16.5 | there are no facts, matters, events or circumstances which give any person the right to apply to liquidate or wind up the Borrower or any other Transaction Party, or the right to apply for a bankruptcy notice to be issued against the Borrower or any other Transaction Party (as the context requires); |
| 16.6 | there are no existing or threatened proceedings (including without limitation, prosecution, litigation, arbitration, infringement, or other investigation) affecting the Borrower or any other Transaction Party, before any court or governmental authority or arbitrator, which may materially impair: |
| (a) | the Borrower’s or any other Transaction Party’s business; or |
| (b) | the Borrower’s or any other Transaction Party’s financial position or ability to perform its obligations under the Finance Documents; |
| 16.7 | no information provided to the Lender by or for the Borrower or any other Transaction Party is false or misleading; |
| 16.8 | the Borrower has disclosed in writing to the Lender all information which may reasonably affect the Lender’s decision to provide financial accommodation or not press for immediate payment of the Outstanding Moneys; |
| 16.9 | the Borrower has either: |
| (a) | sought independent legal advice; or |
| (b) | declined to seek independent legal advice, in respect of this agreement and its obligations under this agreement; and |
| 16.10 | this agreement constitutes a legal, valid and binding obligation on the Borrower enforceable in accordance with its terms by the appropriate legal remedy. |
| 17. | Trusts |
| 17.1 | This clause applies if the Borrower is a trustee of a trust (whether or not the Lender knows about the trust). |
pg 9
| 17.2 | The Borrower must provide to the Lender a true copy of the trust deed (as amended) whenever requested. |
| 17.3 | This agreement binds the Borrower and any succeeding trustee and any additional trustee personally and as trustee of the trust. |
| 17.4 | The Borrower must cause any new trustee of the trust to sign any documents the Lender requires to ensure that this agreement binds that new trustee. |
| 17.5 | Unless the Lender consents, the Borrower must not: |
| (a) | amend the trust deed; |
| (b) | retire as trustee of the trust; or |
| (c) | appoint a new trustee of the trust. |
| 17.6 | The Borrower represents and warrants that: |
| (a) | the trust deed for the trust creates or evidences all trusts of which the Borrower is a trustee; |
| (b) | the Borrower is the sole trustee of the trust; |
| (c) | the Borrower has power to execute this agreement and to perform its obligations under this agreement; |
| (d) | the Borrower has a right of indemnity from trust assets which is unrestricted (subject to law and to the trust deed); |
| (e) | the Borrower executes this agreement as part of the proper administration of the trust fund and for the benefit of the beneficiaries; |
| (f) | the Borrower has disclosed in writing to the Lender all information about the trust and the trust assets which may reasonably affect the Lender’s decision to provide financial accommodation or not press for immediate payment of the Outstanding Moneys; |
| (g) | no vesting date of the trust has been or will be determined; |
| (h) | the Borrower is not in breach of trust; |
| (i) | there are no claims against the trust assets; |
| (j) | no notice has been or will be given under any legislation inviting claims against the trust fund before distribution; |
| (k) | no trust assets have been or will be resettled, set aside or transferred to other trusts; and |
| (l) | no capital has been or will be distributed under the trust, without the consent of the Lender. |
| 17.7 | The Borrower represents and warrants that each representation and warranty in this clause will be true at all times while this agreement is in force. |
| 18. | Warranties repeat and continue |
| 18.1 | The Borrower repeats each representation and warranty in this agreement whenever the Lender provides financial accommodation to or for the Borrower and whenever any portion of the Outstanding Moneys is paid to the Lender. |
| 18.2 | The Borrower represents and warrants that each representation and warranty given by the Borrower in this agreement will be true at all times while this agreement is in force. |
pg 10
| 19. | Continuing indemnities |
Unless this agreement provides otherwise:
| 19.1 | each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination or expiration of this agreement; |
| 19.2 | it is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this agreement; and |
| 19.3 | the making of a claim by a party under an indemnity contained in this agreement in respect of a particular event does not preclude that party from subsequently making further claims under that indemnity in respect of the same event. |
| 20. | Assignment |
A party may only assign its rights or obligations under this agreement with the written consent of the other party.
| 21. | Amendment |
This agreement may only be amended in writing signed by the parties.
| 22. | No waiver |
| 22.1 | A party may only waive a breach of this agreement in writing signed by that party or its authorised representative. |
| 22.2 | A waiver is limited to the instance referred to in the writing. |
| 23. | Further action |
| 23.1 | Each party must do all things necessary to carry out this agreement, including: |
| (a) | executing documents; and |
| (b) | ensuring its employees and agents perform their obligations. |
| 23.2 | A party must not do anything that will prevent this agreement from being carried out. |
| 24. | No merger |
The rights and obligations under this agreement do not merge on completion of any transaction contemplated by this agreement.
| 25. | Counterparts |
| 25.1 | This agreement may be executed in any number of counterparts. A counterpart may be a scanned PDF format or a document created by any other means of legible electronic production. |
| 25.2 | Together all counterparts make up one document. |
| 25.3 | If this agreement is executed in counterparts, it takes effect when each party has received the counterpart executed by each other party, or would be deemed to have received it if a notice. |
| 26. | Notice |
| 26.1 | Notice must be in writing and in English, and may be given by an authorised representative of the sender. |
| 26.2 | Notice may be given to a person: |
| (a) | personally; |
| (b) | by leaving it at the person’s address last notified; |
pg 11
| (c) | by sending it by pre paid mail to the person’s address last notified; |
| (d) | by sending it by electronic mail to the person’s email address last notified. |
| 26.3 | Notice is deemed to be received by a person: |
| (a) | when left at the person’s address; |
| (b) | if sent by pre paid mail, five Business Days after posting; |
| (c) | if sent by electronic mail, on the day after the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted. |
However, if the notice is deemed to be received on a day which is not a Business Day it is deemed to be received on the next Business Day.
| 26.4 | If two or more people comprise a party, notice to one is effective notice to all. |
| 27. | Consents and approvals |
| 27.1 | Unless otherwise provided in this agreement, the Lender may give or withhold its determination, nomination, notice, consent, request, agreement, authorisation, or approval under this agreement, but that consent is not to be unreasonably delayed or withheld. |
| 27.2 | The Lender’s determination, nomination, notice, consent, request, agreement, authorisation or approval given pursuant to or required by this agreement is valid only if it is in writing and signed by the Lender or its authorised representative. |
| 28. | Governing law |
| 28.1 | This agreement is governed by the law of South Australia. |
| 28.2 | The parties irrevocably submit to the exclusive jurisdiction of the courts of South Australia and the South Australian division of the Federal Court of Australia, and the courts of appeal from them. |
| 28.3 | No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction. |
| 29. | Severance |
If a provision of this agreement would, but for this clause 29, be void, unenforceable or illegal in a jurisdiction:
| 29.1 | the provision will be read down to the extent necessary to avoid that result; and |
| 29.2 | if the provision cannot be read down to that extent it will be severed in that jurisdiction, |
without affecting the validity and enforceability of that provision in any other jurisdiction or any other provisions of this agreement. This clause 29 has no effect if its operation alters the basic nature of this agreement or is contrary to public policy.
| 30. | Costs |
The parties must pay their own cost of preparing this agreement and any document required by this agreement.
pg 12
Executed as an agreement on
| Executed
by Integrated Media Technology Ltd in accordance with section 127 of the Corporations Act 2001 (Cth): | ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
Executed by Capital Stone Holding Limited: | ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
pg 13
Exhibit 99.3
Specific Security Deed
Integrated Media Technology Limited
ACN 132 653 948
Capital Stone Holdings Limited
 |
| Contents | ||
| Part 1 – Preliminary | 1 | |
| 1. | Definitions | 1 |
| 2. | Interpretation | 3 |
| Part 2 – Security Interest | 4 | |
| 3. | Security Interest | 4 |
| 4. | Attachment | 4 |
| Part 3 – Warranties | 4 | |
| 5. | General warranties | 4 |
| 6. | Warranties continue | 4 |
| 7. | Trusts | 5 |
| Part 4 – Grantor’s Obligations | 5 | |
| 8. | Dealing with the Shares | 5 |
| 9. | Title documents | 6 |
| 10. | Obligations regarding Event of Default | 6 |
| 11. | Maintenance and protection | 6 |
| 12. | Better security | 6 |
| Part 5 – Secured Party’s Powers | 6 | |
| 13. | Powers | 6 |
| Part 6 – Default | 7 | |
| 14. | Acceleration of payment | 7 |
| 15. | Appointment of Receiver | 7 |
| 16. | Powers of Receiver | 7 |
| 17. | Receiver’s agency | 7 |
| 18. | Receiver appointed during insolvency | 7 |
| 19. | Receiver’s powers exercisable by Secured Party | 8 |
| 20. | Protection of purchasers | 8 |
| 21. | Other powers | 8 |
| 22. | No duty of Secured Party or Receiver | 8 |
| 23. | Giving up possession | 8 |
| 24. | Liability limited to actual receipts | 8 |
| 25. | Power of attorney | 9 |
| Part 7 – Application of Money | 9 | |
| 26. | Order | 9 |
| 27. | Amounts contingently owing | 9 |
| 28. | Money actually received | 10 |
| 29. | Notice of subsequent Security Interest | 10 |
| 30. | Combination and set-off | 10 |
| 30. | Certificate as to Secured Money | 10 |
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| PART 8 – PPSA | 10 | ||
| 31. | Waiver of certain provisions of the PPSA | 10 | |
| 32. | Waiver of certain notices by Grantor | 11 | |
| 33. | Perfection of Security Interest | 11 | |
| PART 9 – MISCELLANEOUS | 11 | ||
| 34. | Continuing security | 11 | |
| 35. | Indemnity | 12 | |
| 36. | No merger | 12 | |
| 37. | No marshalling | 12 | |
| 38. | No moratorium | 12 | |
| 39. | Assignment | 13 | |
| 40. | Time of essence | 13 | |
| 41. | Consent | 13 | |
| 42. | No waiver | 13 | |
| 43. | Completion of other documents | 13 | |
| 44. | Completion of this deed | 13 | |
| 45. | Right to disclose | 14 | |
| 46. | Costs | 14 | |
| 47. | Notices | 14 | |
| 48. | Notice need not be specific | 15 | |
| 49. | Time for notice | 15 | |
| 50. | Governing law | 15 | |
| Schedule 1 – Shares | 16 | ||
ii
Parties
Party 1
Integrated Media Technology Limited ACN 132 653 948 of Level 7, 420 King William Street Adelaide South Australia 5000 (Secured Party)
Party 2
Capital Stone Holdings Limited a company incorporated in the British Virgin Islands with its registered address at Overseas Management Company Trust (BVI) LTD., OMC Chambers, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands (Grantor)
Introduction
| A. | At the Grantor’s request, the Secured Party has agreed to lend money, give credit or provide finance to, or at the request of, the Grantor. |
| B. | The Grantor considers that by providing this deed there will be a commercial benefit flowing to the Grantor. |
Operative clauses
Part 1 – Preliminary
| 1. | Definitions |
Unless otherwise specified, in this deed:
Attorney means an attorney appointed under this deed;
Authorised Officer means:
| (a) | a director, secretary or manager (of any class) of the Secured Party, or a person acting in any of those offices; and |
| (b) | a person appointed as an authorised officer by the Secured Party; |
Business Day means any day except a Saturday or a Sunday or other public holiday or bank holiday in South Australia;
Certificates means any present and future certificates or other title documents in respect of the Shares;
Collateral Security means another security or a guarantee or indemnity, granted by any person to the Secured Party, to secure payment of any Secured Money;
Constitutional Documents means the constitutional documents of the Issuer and any other agreement between all holders of shares in the Issuer including any agreement relating to the Shares;
Corporations Act means the Corporations Act 2001 (Cth);
Event of Default means an event of default as defined in the Transaction Documents;
Insolvency Event means the happening of any of the following events in relation to a person:
| (a) | where the person is a body corporate: |
| (i) | the body corporate becomes a Chapter 5 body corporate under the Corporations Act; |
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| (ii) | steps are taken by a third person towards making the body corporate a Chapter 5 body corporate (but not where the steps taken consist only of making an application to a court and the application is withdrawn or dismissed within 14 days); |
| (iii) | a controller (as defined in section 9 of the Corporations Act) is appointed over any of the property of the body corporate or any steps are taken for the appointment of a controller (but not where the steps taken are reversed or abandoned within 14 days); |
| (iv) | the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; |
| (v) | a secured creditor of the body corporate or a Related Body Corporate of the body corporate exercises its security in relation to its debt; or |
| (vi) | the body corporate is, or its directors state that it is, unable to pay its debts as and when they become due and payable; or |
| (b) | where the person is a natural person: |
| (i) | the person authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors; |
| (ii) | a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; |
| (iii) | the person commits an act of bankruptcy; |
| (iv) | the person has a bankruptcy notice issued against them; |
| (v) | a receiver or trustee for creditors or in bankruptcy is appointed to any of the person’s property; |
| (vi) | the person becomes an “insolvent under administration” within the meaning of the Corporations Act; or |
| (vii) | the person dies, is imprisoned or becomes incapable of managing his or her own affairs; |
Issuer means eGlass Technologies Ltd (ACN 659 782 028);
Loan means the moneys loaned by the Secured Party to the Borrower (together with any interest and other payments due) pursuant to the Loan Agreement;
Loan Agreement means the agreement dated on or about the date of this deed between the Secured Party and the Borrower in respect of the Loan;
Potential Default means anything that with the giving of notice or passage of time or both would constitute an Event of Default;
PPSA means the Personal Property Securities Act 2009 (Cth);
Receiver means a receiver or receiver and manager appointed under this deed;
Security Interest means:
| (a) | a ’security interest’ as that term is defined in the PPSA; |
| (b) | any interest held as security for the payment of a monetary obligation or the performance of any other obligation, including a mortgage, charge, encumbrance, lien, pledge or hypothecation; and |
| (c) | any other right, interest or arrangement that: |
(i) in substance secures the payment of money or the performance of an obligation; or
(ii) gives a creditor priority over other creditors in relation to any property;
2
Secured Money means all money which the Borrower (personally or as a trustee, alone or with another person) now or in the future owes or may contingently owe, whether as principal debtor or as a surety, to the Secured Party (alone or with another person), under or in relation to each Transaction Document;
Shares means the fully paid ordinary shares in the Issuer described in Schedule 1;
Transaction Documents means:
| (a) | this deed; |
| (b) | each Collateral Security; |
| (c) | any loan agreement between the Secured Party and the Borrower and/or Grantor; |
| (d) | any document that the Secured Party and the Borrower and/or Grantor agree is a Transaction Document or any document or agreement entered into or given under or in connection with or for the purpose of amending or varying the above. |
| 2. | Interpretation |
In this deed, unless the context otherwise requires:
| 2.1 | the Introduction is correct; |
| 2.2 | headings do not affect interpretation; |
| 2.3 | singular includes plural and plural includes singular; |
| 2.4 | words of one gender include any gender; |
| 2.5 | a reference to time is a reference to Adelaide, Australia time; |
| 2.6 | a reference to “dollars”, “US$” or “$” is a reference to United States currency; |
| 2.7 | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
| 2.8 | a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this deed, and a reference to this deed includes any schedule or annexure; |
| 2.9 | reference to a person includes a corporation, body corporate, joint venture, association, government body, firm and any other entity; |
| 2.10 | a reference to a party is to a party to this deed, and a reference to a party to a deed includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
| 2.11 | a reference to this deed includes this deed as varied, supplemented, assigned or novated from time to time; |
| 2.12 | reference to two or more people means each of them individually and all of them jointly; |
| 2.13 | if a party comprises two or more people: |
| (a) | a promise by that party binds each of them individually and all of them jointly; |
| (b) | a right given to that party is given to each of them individually; |
| (c) | a representation, warranty or undertaking by that party is made by each of them individually; |
| 2.14 | a provision must not be construed against a party only because that party prepared it; |
| 2.15 | a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed; |
3
| 2.16 | the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including” or “in particular”) or precede them or are included elsewhere in this deed; |
| 2.17 | if a thing is to be done on a day which is not a Business Day, it must be done on the next Business Day; |
| 2.18 | another grammatical form of a defined expression has a corresponding meaning; |
| 2.19 | an expression defined in the Corporations Act 2001 (Cth) has the meaning given by that Act at the date of this deed. |
Part 2 – Security Interest
| 3. | Security Interest |
As a continuing security for the payment of the Secured Money, the Grantor grants the Secured Party a Security Interest in the Shares.
| 4. | Attachment |
The parties acknowledge and agree that the Security Interest created by this deed attaches to the Shares in accordance with the PPSA upon execution of this deed.
Part 3 – Warranties
| 5. | General warranties |
The Grantor represents and warrants that, except as disclosed in writing to the Secured Party before the date of this deed:
| 5.1 | the Grantor has the power and authority to grant this deed and to perform its obligations under this deed; |
| 5.2 | except as previously disclosed in writing, there are no prior equities or Security Interests over the Shares; |
| 5.3 | by granting this deed, the Grantor does not breach a law or a binding arrangement; |
| 5.4 | the Shares are fully paid; |
| 5.5 | the issue of the Shares has been duly authorised and validly created and the issue or transfer of them does not contravene any law; |
| 5.6 | all copies of the Constitutional Documents given by it or on its behalf to the Secured Party are true and complete copies and are in full force and effect except to the extent set out in the Loan Agreement or unless otherwise agreed by the Secured Party. |
| 6. | Warranties continue |
The Grantor warrants that each representation and warranty in this Part will be true at all times while this deed is in force.
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| 7. | Trusts |
| 7.1 | This clause applies if the Grantor is a trustee of a trust (whether or not the Secured Party knows about the trust). |
| 7.2 | The Grantor must provide to the Secured Party a true copy of the trust deed (as amended) whenever requested. |
| 7.3 | This deed binds the Grantor and any succeeding trustee and any additional trustee personally and as trustee of the trust. |
| 7.4 | The Grantor must cause any new trustee of the trust to sign any documents the Secured Party requires to ensure that this deed binds that new trustee. |
| 7.5 | Unless the Secured Party consents, the Grantor must not: |
| (a) | amend the trust deed; |
| (b) | retire as trustee of the trust; or |
| (c) | appoint a new trustee of the trust. |
| 7.6 | The Grantor represents and warrants that: |
| (a) | the Grantor is the sole trustee of the trust; |
| (b) | the Grantor has power to execute this deed and to perform its obligations under this deed; |
| (c) | the Grantor executes this deed as part of the proper administration of the trust fund and for the benefit of the beneficiaries; |
| (d) | the Grantor has given to the Secured Party a true copy of the trust deed (as amended); |
| (e) | no vesting date of the trust has been or will be determined; |
| (f) | the Grantor is not in breach of trust. |
| 7.7 | The Grantor represents and warrants that each representation and warranty in this clause will be true at all times while this deed is in force. |
| 7.8 | The Grantor repeats each representation and warranty in this clause whenever the Secured Party provides financial accommodation to or for the Borrower and whenever any Secured Money is paid to the Secured Party. |
| 7.9 | There is also an Event of Default if the Grantor does not disclose to the Secured Party the existence and terms of the trust, before executing this deed. |
Part 4 – Grantor’s Obligations
| 8. | Dealing with the Shares |
| 8.1 | Subject to sub-clause 8.2, the Grantor must not, without the consent of the Secured Party: |
| (a) | dispose of or deal with any interest in, or part with possession of, the Shares; or |
| (b) | create or allow to exist another Security Interest in the Shares; or |
| (c) | give control or possession of the Shares to another person other than the Secured Party. |
| 8.2 | The Grantor must attend meetings and exercise all rights including voting rights in connection with the Shares but not so as to materially and adversely affect the rights attached to the Shares. |
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| 9. | Title documents |
| 9.1 | The Grantor must upon the execution of this deed by the Grantor deposit with the Secured Party the Certificates relating to the Shares. The Secured Party may have control and possession of the Certificates until the Secured Party is obliged to release the Shares from the Secured Interest created by this deed. |
| 9.2 | The Grantor may from time to time and at reasonable times upon written request and at its own cost and on payment of the Secured Party’s costs and expenses relating to the exercise of the Grantor’s right, inspect and make copies or abstracts of, or extracts from, the documents relating to the Shares in the possession or under the control of the Secured Party. |
| 10. | Obligations regarding Event of Default |
| 10.1 | The Grantor must not cause or allow the occurrence or continuation of an Event of Default. |
| 10.2 | If an Event of Default or Potential Default occurs, the Grantor must immediately give the Secured Party notice and any information the Secured Party requires about the Event of Default or Potential Default. |
| 11. | Maintenance and protection |
The Grantor must:
| 11.1 | not do or omit or allow anything which, in the opinion of the Secured Party, may: |
| (a) | materially lessen the value of the Shares or a Collateral Security or this deed; or |
| (b) | jeopardise any Shares; |
| 11.2 | take or defend any legal proceedings to protect or recover any Shares, as the Secured Party requires; |
| 11.3 | comply with all statutes and governmental requirements affecting the Shares; |
| 11.4 | punctually perform all its contractual and other obligations affecting the Shares; |
| 11.5 | at the Secured Party’s request, deliver to the Secured Party evidence of a payment under this clause; and |
| 11.6 | on receipt, deliver to the Secured Party any notice or other document received from a governmental authority in respect of the Shares. |
| 12. | Better security |
The Grantor must do all things and execute all further documents (and cause any third party to do all things and execute all further documents), reasonably required by the Secured Party to:
| 12.1 | perfect and continuously maintain perfection of the Security Interest granted under this deed; |
| 12.2 | provide better security over the Shares to the Secured Party; and |
| 12.3 | aid the Secured Party exercising a right under this deed or a Collateral Security. |
Part 5 – Secured Party’s Powers
| 13. | Powers |
At any reasonable time, without notice to the Grantor, the Secured Party and persons authorised by the Secured Party may:
| 13.1 | inspect records relating to the Shares; and |
| 13.2 | do anything which this deed obliges the Grantor to do, but which the Grantor did not do or did not do properly. |
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Part 6 – Default
| 14. | Acceleration of payment |
At the Secured Party’s option, on an Event of Default all the Secured Money becomes immediately payable without notice to the Grantor. No agreement or delay or previous waiver by the Secured Party affects this.
| 15. | Appointment of Receiver |
| 15.1 | If an Event of Default has occurred, without notice to the Grantor, the Secured Party may: |
| (a) | appoint a person, or two or more persons jointly or severally or jointly and severally, as Receiver of all or part of the Shares; |
| (b) | remove the Receiver; |
| (c) | appoint a replacement Receiver; |
| (d) | fix the remuneration of the Receiver. |
| 15.2 | The Receiver’s remuneration and expenses are part of the Secured Money. |
| 16. | Powers of Receiver |
Unless excluded by the terms of appointment, without notice to the Grantor, the Receiver may do anything in respect of the Shares the Grantor could do, including:
| 16.1 | take possession or control of the Shares; |
| 16.2 | manage, quietly enjoy and otherwise deal with the Shares; |
| 16.3 | sell the Shares; or |
| 16.4 | exercise the rights of the Grantor and perform the obligations of the Grantor in respect of the Shares and cause and permit any other person to perform their obligations in respect of the Shares . |
| 17. | Receiver’s agency |
The Receiver is the agent of the Grantor alone until the Secured Party otherwise notifies the Grantor. The Grantor is solely responsible for the actions and defaults of and the remuneration and expenses payable to the Receiver.
| 18. | Receiver appointed during insolvency |
If the Grantor is bankrupt:
| 18.1 | the Secured Party may still appoint a Receiver (to the extent permitted by law); and |
| 18.2 | the Receiver may not be able to act as the Grantor’s agent in some respects. |
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| 19. | Receiver’s powers exercisable by Secured Party |
| 19.1 | If an Event of Default has occurred, without notice to the Grantor, the Secured Party may: |
| (a) | exercise any power of a Receiver; |
| (b) | appoint an agent to exercise any power of a Receiver; and |
| (c) | fix the remuneration of the agent. |
| 19.2 | The Secured Party’s expenses and the agent’s remuneration and expenses are part of the Secured Money. |
| 19.3 | This clause applies whether or not the Secured Party has appointed a Receiver. |
| 20. | Protection of purchasers |
| 20.1 | The Secured Party, Receiver, Attorney and the agent or Authorised Officer of the Secured Party may give valid discharges and receipts for money paid by a third party in respect of an exercise of a power under this deed. |
| 20.2 | No person dealing with the Secured Party, Receiver, Secured Party’s agent or Attorney need enquire: |
| (a) | whether this deed is enforceable; |
| (b) | whether the Receiver, Secured Party’s agent or Attorney was properly appointed; |
| (c) | whether the exercise of a power is proper or necessary; or |
| (d) | about the use of money paid or property transferred to or for the Secured Party, Receiver, Secured Party’s agent or Attorney; and |
| (e) | even if the person knows about any of these matters, the dealing is deemed to be within power and valid. |
| 21. | Other powers |
The Secured Party and the Receiver have the powers conferred by statute, law, equity and otherwise, in addition to the powers conferred by this deed.
| 22. | No duty of Secured Party or Receiver |
| 22.1 | The Secured Party and the Receiver may exercise: |
| (a) | their powers as they think fit; |
| (b) | more than one power at a time. |
| 22.2 | The Secured Party and the Receiver are not obliged to exercise any power. |
| 22.3 | The Secured Party and the Receiver are not liable for a loss caused by the exercise, attempted exercise, non exercise, delayed exercise or past exercise of a power. |
| 23. | Giving up possession |
The Secured Party may:
| 23.1 | give up possession of any Shares; or |
| 23.2 | withdraw a receivership. |
| 24. | Liability limited to actual receipts |
Except for actual receipts, the Secured Party and the Receiver are not liable:
| 24.1 | to account as mortgagee in possession; or |
| 24.2 | for any loss or default for which a mortgagee in possession could otherwise be liable. |
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| 25. | Power of attorney |
| 25.1 | The Grantor irrevocably appoints the Secured Party, each Authorised Officer of the Secured Party and any Receiver severally as its Attorney. |
| 25.2 | If an Event of Default has occurred, the Attorney may, without notice to the Grantor, in the name of the Grantor, at the Grantor’s cost: |
| (a) | do anything the Grantor is obliged to do under this deed; |
| (b) | exercise any power of the Secured Party or Receiver under this deed; |
| (c) | do anything the Attorney thinks expedient to give effect to a power of the Secured Party or the Receiver (whether or not under this deed). For example, the Attorney may execute a document for the Grantor under clause 43; and |
| (d) | appoint a substitute Attorney for any period and remove that substitute Attorney. |
| 25.3 | The Grantor must ratify anything done by the Attorney under this clause. |
Part 7 – Application of Money
| 26. | Order |
| 26.1 | The Secured Party, Receiver, Secured Party’s agent or Attorney must apply money, received under this deed, in the following order: |
| (a) | first, in discharge of any claims with priority over this deed; |
| (b) | secondly, in payment of all expenses of or incidental to the exercise or attempted exercise of a power under this deed; |
| (c) | thirdly, in payment of all other outgoings the Secured Party, Receiver, Secured Party’s agent or Attorney may consider appropriate to pay; |
| (d) | fourthly, in payment of the Receiver’s remuneration; |
| (e) | fifthly, towards satisfaction of any part of the Secured Money the Secured Party thinks fit; |
| (f) | fifthly, in payment to any person entitled to the Shares in priority to the Grantor, including subsequent encumbrances (whether registered or not); and |
| (g) | sixthly, in payment of any surplus to the Grantor, without interest. |
| 26.2 | The Secured Party, Receiver, Secured Party’s agent or Attorney may pay: |
| (a) | any amount into court by way of interpleader; and |
| (b) | any surplus into a bank account in the name of the Grantor. |
| 27. | Amounts contingently owing |
If any Secured Money is contingently owing to the Secured Party when money is applied under the previous clause, the Secured Party or Receiver or agent or Attorney may pay an amount into a short term interest bearing account until the amount contingently owing becomes payable, and then pay the Secured Party and subsequent payees under the previous clause.
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| 28. | Money actually received |
The Secured Party is obliged to credit the Grantor only with money the Secured Party actually receives as Secured Money.
| 29. | Notice of subsequent Security Interest |
| 29.1 | If the Secured Party receives actual notice or is deemed to receive constructive notice of a subsequent Security Interest in the Shares, the Secured Party may open a new account for the Grantor. If the Secured Party does not immediately open a new account, it is deemed to do so. |
| 29.2 | All subsequent financial accommodation by the Secured Party to the Grantor is debited to the new account (or is deemed to be debited to the new account). All subsequent payments by the Grantor to the Secured Party are credited to the new account (or are deemed to be credited to the new account). |
| 30. | Combination and set-off |
The Secured Party may:
| 29.3 | apply a credit balance of any account (joint or otherwise) of the Grantor with the Secured Party; |
| 29.4 | set-off money owing by the Secured Party to the Grantor, |
towards payment of the Secured Money.
| 30. | Certificate as to Secured Money |
A certificate signed by the Secured Party or its Authorised Officer, stating the amount of the Secured Money owing or payable, is sufficient evidence of the matter unless proved incorrect.
PART 8 – PPSA
| 31. | Waiver of certain provisions of the PPSA |
| 31.1 | This clause 31 applies to the extent that the Security Interest in the Shares created by this deed is not excluded from the application of Chapter 4 (apart from sections 110, 111, 113 and 140) of the PPSA pursuant to section 109(3)(a) of the PPSA. |
| 31.2 | To the extent permitted by section 115(1) of the PPSA, the parties agree that the following provisions of the PPSA are excluded in respect of the enforcement of this deed in relation to the Shares: |
| (a) | section 125 (obligation to dispose of or retain collateral); |
| (b) | section 132(3)(d) (contents of statement of account after disposal); |
| (c) | section 132(4) (statement of account if no disposal); |
| (d) | section 135 (notice of retention); and |
| (e) | section 142 (redemption of collateral). |
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| 31.3 | To the extent permitted by section 115(7) of the PPSA, the parties agree that the following provisions of the PPSA will not apply to the enforcement of this deed over the Shares : |
| (a) | section 129(2) and (3) (disposal by purchase); |
| (b) | section 132 (statement of account if no disposal); |
| (c) | section 133(1)(b) (as it relates to the Security Interest of the Secured Party); |
| (d) | section 134(2) and section 135 (notice of retention of collateral); |
| (e) | section 136(3), (4) and (5) (retaining collateral free of interest); and |
| (f) | section 137 (persons entitled to notice may object to proposal). |
| 32. | Waiver of certain notices by Grantor |
The Grantor waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
| 33. | Perfection of Security Interest |
Without limiting clause 12, the Grantor must comply with all reasonable requests of the Secured Party for the purpose of securing perfection of a Security Interest created by this deed in favour of the Secured Party, including by doing all things reasonably necessary upon request from time to time to:
| 33.1 | perfect a Security Interest by control; |
| 33.2 | permit any Security Interest created by this deed to be registered on the register; or |
| 33.3 | otherwise permit a Security Interest created by this deed to be perfected. |
PART 9 – MISCELLANEOUS
| 34. | Continuing security |
| 34.1 | This deed is a continuing security. It is discharged only when the Secured Party discharges the Grantor in writing. |
| 34.2 | The Grantor’s liability is unconditional and is not affected by anything including: |
| (a) | a concession or extension of time by the Secured Party to the Borrower or other person; |
| (b) | an act, omission, mistake or delay by the Secured Party or other person; |
| (c) | a dealing with, or a variation, exchange, renewal, release, transfer or abandonment of a contract, Collateral Security or instrument; |
| (d) | a failure to complete a contract; |
| (e) | a failure to recover Secured Money, because of a failure to enforce a judgment, Collateral Security or instrument or otherwise; |
| (f) | an outstanding negotiable instrument, security, contract, or other obligation in respect of the Secured Money; |
| (g) | a settlement of account or intervening payment, or the fact that there is no Secured Money owing; |
| (h) | the merger, amalgamation or reconstruction of the Grantor or the Secured Party; |
| (i) | if this deed secures the indebtedness of a partnership: |
| (i) | an alteration in the composition of the partnership; |
| (ii) | the fact that the Grantor is not or is no longer a partner; |
| (iii) | cessation of business by the partnership; |
| (j) | the invalidity or unenforceability of the Grantor’s obligations under or referred to in this deed; |
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| (k) | the Grantor not being, or ceasing to be, authorised or empowered to enter into or perform the Grantor’s obligations under this deed; |
| (l) | the invalid or irregular execution of this deed by the Grantor. |
| 35. | Indemnity |
| 35.1 | The Grantor indemnifies the Secured Party, Receiver, Secured Party’s agent and the Attorney, against all claims, costs, liability, losses and expenses, in respect of: |
| (a) | an Event of Default; |
| (b) | the exercise, non exercise, attempted exercise or delayed exercise of any power by the Secured Party, the Receiver, an agent or the Attorney; |
| (c) | an act or omission of the Grantor, its employees or agents; |
| (d) | any worker’s compensation claim by any of the Grantor’s employees; |
| (e) | any claim in respect of the Shares; |
| (f) | the disclosure of any information about the Grantor, a related body corporate, a surety or co surety for the Secured Money, or the business or affairs of any of them (including confidential information), if the Secured Party, Receiver, agent or Attorney thought the disclosure necessary to exercise their powers; |
| (g) | any breach of a warranty in this deed; |
| (h) | anything in respect of this deed or the Shares. |
| 35.2 | In this clause, Secured Party includes an employee, officer, agent, contractor and professional adviser of the Secured Party. |
| 36. | No merger |
| 36.1 | The Secured Party’s rights under this deed are not prejudiced by or merged in any other right of the Secured Party (present or future), including rights under a negotiable instrument, contract or judgment. |
| 36.2 | This deed does not affect any other Security Interest (present or future) of the Secured Party: |
| (a) | in the property of the Grantor; |
| (b) | in the property of any other person as security for payment of the Secured Money. |
| 37. | No marshalling |
The Secured Party is not obliged to marshall in favour of the Grantor or other person:
| 37.1 | any security held by the Secured Party; |
| 37.2 | any assets held by the Secured Party or to which the Secured Party is entitled. |
| 38. | No moratorium |
A law that:
| 38.1 | lessens the Grantor’s obligations; |
| 38.2 | postpones or prevents the exercise of the Secured Party’s or the Receiver’s rights; or |
| 38.3 | protects or compensates the Grantor, |
is excluded from this deed, unless the law otherwise requires.
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| 39. | Assignment |
Without notice to the Grantor, the Secured Party may assign:
| 39.1 | the whole or any part of a debt comprised in the Secured Money; |
| 39.2 | the Secured Party’s rights under this deed (including an indemnity). |
| 40. | Time of essence |
Time is of the essence in respect of the Grantor’s obligations under this deed.
| 41. | Consent |
| 41.1 | Unless otherwise provided, the Secured Party may give or withhold consent, agreement or approval: |
| (a) | in its absolute discretion; |
| (b) | with or without conditions; |
| (c) | without giving reasons; |
| (d) | when it chooses. |
| 41.2 | The Secured Party’s consent or approval is valid only if in writing and signed by the Secured Party or its Authorised Officer. |
| 42. | No waiver |
| 42.1 | The Secured Party or the Receiver waives a right under this deed only by giving notice that it waives that right. |
| 42.2 | A power is not impaired or waived by: |
| (a) | a failure to exercise that power; |
| (b) | a delay in exercising that power; |
| (c) | a partial exercise of that power; |
| (d) | a previous exercise of that power; |
| (e) | negotiations between the Grantor and the Secured Party or Receiver; |
| (f) | acceptance of part of the Secured Money. |
| 43. | Completion of other documents |
The Secured Party or an Authorised Officer of the Secured Party may complete, in favour of the Secured Party or nominee, any document executed by or for the Grantor in blank and deposited with the Secured Party as a Collateral Security.
| 44. | Completion of this deed |
The Secured Party, an Authorised Officer of the Secured Party, an Attorney or the Secured Party’s solicitors may insert in this deed:
| 44.1 | its date; |
| 44.2 | any other detail to complete this deed. |
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| 45. | Right to disclose |
The Secured Party or Receiver may disclose information about the Grantor or the Shares to any person who might enter into a contract with the Secured Party or Receiver in respect of this deed or in exercising a power under this deed.
| 46. | Costs |
| 46.1 | The Grantor must pay on demand all costs and expenses incurred by the Secured Party, Receiver or Attorney in respect of this deed or a Collateral Security, including: |
| (a) | the costs and expenses of preparing, negotiating, executing, stamping, registering, protecting, administering, exercising a power under, attempting to exercise a power under, varying, extending and discharging this deed or a Collateral Security; |
| (b) | the costs and expenses of performing any obligation of the Grantor under this deed or a Collateral Security; |
| (c) | legal costs on a solicitor and own client basis; |
| (d) | the reasonable hourly costs (as fixed by the Secured Party or Receiver or Attorney) of its officers and employees in protecting, administering, or exercising a power under or attempting to exercise a power under, this deed or a Collateral Security, and in negotiating about a variation of this deed or a Collateral Security and any facilities secured by this deed; |
| (e) | taxes (including goods and services taxes) and duties (including stamp duty and financial institutions duty) in respect of this deed, a Collateral Security, an act authorised by either of them, any Secured Money and the payment of any Secured Money. |
| 46.2 | These costs and expenses are part of the Secured Money. |
| 46.3 | The Grantor must perform its obligations under this deed at its own cost, whether or not at the Secured Party’s request. |
| 47. | Notices |
| 47.1 | A notice or demand must be in writing, signed by the person giving it or that person’s Authorised Officer or lawyer. |
| 47.2 | Notice may be given to a person: |
| (a) | personally; |
| (b) | by leaving it at the person’s address last notified; |
| (c) | by sending it by pre paid mail to the person’s address last notified; |
| (d) | by sending it by electronic mail to the person’s email address last notified. |
| 47.3 | Notice is deemed to be received by a person: |
| (a) | when left at the person’s address; |
| (b) | if sent by pre paid mail, 5 Business Days after posting; |
| (c) | if sent by electronic mail, on the day after the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted. |
However, if the notice is deemed to be received on a day which is not a Business Day it is deemed to be received on the next Business Day.
| 47.4 | Notice to the Grantor under this clause is effective even if the Grantor is an externally-administered body corporate. |
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| 47.5 | If 2 or more people comprise the Grantor, notice or demand to one is effective notice to all. |
| 47.6 | The Grantor or the Secured Party may change its address or facsimile number for service by giving at least 5 Business Days’ notice to the other. |
| 47.7 | A certificate signed by the Secured Party or its Authorised Officer or lawyer, stating the date and time at which any notice was personally given or posted or faxed to the Grantor, is sufficient evidence of the matter unless proved incorrect. |
| 48. | Notice need not be specific |
A notice or demand need not specify the amount payable to the Secured Party.
| 49. | Time for notice |
| 49.1 | Any statutory notice requirement or lapse of time requirement is excluded from this deed, unless the law otherwise requires. |
| 49.2 | The Secured Party or the Receiver may exercise any power under this deed without giving notice to the Grantor, unless a statutory notice requirement cannot be excluded. |
| 49.3 | Where a statute allows a period of notice to be fixed by this deed, the period of notice is 2 days. |
| 50. | Governing law |
| 50.1 | This deed is governed by the law of South Australia. |
| 50.2 | The Grantor irrevocably submits to the non-exclusive jurisdiction of the courts of South Australia and the South Australian division of the Federal Court of Australia, and the courts of appeal from them. |
| 50.3 | The Grantor may not object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction. |
15
Schedule 1 – Shares
16
Executed as a deed on
| Executed
by Integrated Media Technology Ltd in accordance with section 127 of the Corporations Act 2001 (Cth): | ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
| Executed
by Capital Stone Holdings Limited in accordance with section 127 of the Corporations Act 2001 (Cth): | ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
17
Exhibit 99.4
Subscription Agreement
|
Integrated Media Technology Limited ACN 132 653 948
|
|
eGlass Technologies Ltd ACN 659 782 028
|
|
[Investor Name]
|
Contents
| 1. | Definitions | 1 |
| 2. | Interpretation | 3 |
| 3. | Completion | 4 |
| 4. | Notes and Warrants | 5 |
| 5. | Representations and warranties | 6 |
| 6. | Consents and approvals | 7 |
| 7. | Confidentiality | 7 |
| 8. | Assignment | 7 |
| 9. | Amendment | 7 |
| 10. | No waiver | 8 |
| 11. | No merger | 8 |
| 12. | Further action | 8 |
| 13. | Entire agreement | 8 |
| 14. | Contribution | 8 |
| 15. | Counterparts | 8 |
| 16. | Notice | 9 |
| 17. | Governing law | 9 |
| 18. | Costs | 9 |
| Schedule 1 – Note terms | ||
| 1. | Defined terms | 10 |
| 2. | Form and Face Value | 10 |
| 3. | Ranking, security and other indebtedness | 10 |
| 4. | Interest | 10 |
| 5. | Conversion | 11 |
| 6. | Requirements of Holder Notices | 12 |
| 7. | Repayment and notice obligations | 12 |
| 8. | Conversion | 13 |
| 9. | Transactions | 14 |
| 10. | Enforcement | 14 |
| 11. | General | 14 |
| 12. | Certificate and Register | 15 |
| 13. | Notices | 16 |
| 14. | Amendments to these Terms | 17 |
| 15. | Governing law and jurisdiction | 17 |
| 16. | Interpretation and Definitions | 18 |
| Schedule 2 – Warrant Exercise Notice | 24 | |
| Schedule 3 – Warrant Terms | 25 | |
i
Parties
Party 1
Integrated Media Technology Limited ACN 132 653 948 of Level 7, 420 King William Street Adelaide South Australia 5000 (Company)
Party 2
eGlass Technologies Ltd (formerly known as Smartgass Technologies Ltd) ACN 659 782 028 of Level 7, 420 King William Street Adelaide South Australia 5000 (eGlass)
Party 3
[Name] of [ ] (Subscriber)
Introduction
| A. | The Company has agreed to issue, and the Subscriber has agreed to subscribe for, the Subscription Notes; and |
| B. | eGlass has agreed to issue, and the Subscriber has agreed to subscribe for, the Warrants, on the terms of this agreement. |
Operative clauses
| 1. | Definitions |
Unless otherwise specified, in this agreement:
Affiliate means any person or entity that is directly or indirectly in control of, controlled by, or under common control with, such other entity, including but not limited to, parent or subsidiary corporations or entities;
ASIC means the Australian Securities and Investments Commission;
ASX means ASX Limited (ABN 98 008 624 691) or the securities exchange operated by ASX Limited, as the context requires;
ASX Listing Rules means the listing rules of ASX as amended or replaced from time to time, except to the extent of any express written waiver by ASX;
Authorisation includes:
| 1 | any consent, registration, filing, agreement, notice of non-objection, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a Government Agency; and |
| 2 | in relation to anything which a Government Agency may prohibit or restrict within a specific period, the expiry of that period without intervention or action or notice of intended intervention or action; |
Business Day means a day on which banks are open for business in Adelaide which is not a Saturday, Sunday or public holiday;
Completion means completion of the issue of the Subscription Notes and Warrants in accordance with clause 3;
Completion Date means the next Business Day after the date of this agreement or such other date agreed by the parties;
Constitution means the constitution of the Company, as amended from time to time;
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Corporations Act means the Corporations Act 2001 (Cth);
Encumbrance means any interest or power:
| 1 | reserved in or over any interest in any asset; or |
| 2 | 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, or having similar commercial effect to, security for payment of a debt, any other monetary obligation or the performance of any other obligation, or any trust or any retention of title and includes, but is not limited to, any agreement to grant or create any of the above;
Government Agency means a government or a governmental, semi government, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;
Group means the Company and each Subsidiary;
Group Member means a member of the Group;
Immediately Available Funds means payment by bank cheque or electronic funds transfer into an account nominated by the Company;
Insolvency Event occurs in relation to a body corporate if:
| 1 | it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or |
| 2 | it has a controller (as defined in the Corporations Act) appointed, or is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property; or |
| 3 | it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the creditors); or |
| 4 | an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of 1, 2 or 3 above; or |
| 5 | it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand; or |
| 6 | it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which a creditor reasonably deduces it is so subject); or |
| 7 | it is otherwise unable to pay its debts when they fall due; or |
| 8 | something having a substantially similar effect to 1 to 7 happens in connection with it under the law of any jurisdiction; |
IPO means an initial public offering of shares in eGlass pursuant to a prospectus to be lodged with ASIC, in support of an application by eGlass to be admitted to the official list of ASX;
IPO Price means the price at which new shares in eGlass are offered to the public pursuant to the IPO;
Note Certificate means a “Certificate” as defined in the Note Terms;
Notes means convertible notes issued by the Company in accordance with the Note Terms;
Note Subscription Amount means the Face Value (as defined in the Note Terms) multiplied by the number of Subscription Notes;
Note Terms means the terms of issue of the Notes as set out in Schedule 1;
Relevant Number has the meaning given in clause 4.3;
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Share means an ordinary fully paid share in the capital of the Company or eGlass, as the case requires;
Securities has the meaning given in clause 3.1(a);
Subscriber Warranties means the warranties provided by the Subscriber under clause 5.2;
Subscription Notes means that number of Notes which at their specified face value is equal to US$[ ].
Subsidiary has the meaning given in the Corporations Act, but an entity will also be taken to be a Subsidiary of an entity if it is controlled by that entity (expressions used in this definition have the meanings given for the purposes of Chapter 2M of the Corporations Act) and, without limitation:
| 1 | a trust may be a Subsidiary, for the purposes of which a unit or other beneficial interest will be regarded as a share; and |
| 2 | an entity may be a Subsidiary of a trust if it would have been a Subsidiary if that trust were a corporation; |
Trading Day has the meaning given in the ASX Listing Rules;
Warrant means US$[ ] unlisted warrants issued to the Subscriber in accordance with the Warrant Terms;
Warrant Certificates means certificates in the form set out in Schedule 4 evidencing the issue of the Warrants;
Warrant Exercise Notice means an exercise notice in the form set out in Schedule 2;
Warrant Exercise Price means an amount equal to the IPO Price per Warrant, adjusted in accordance with the Warrant Terms;
Warrant Expiry Date means the first anniversary of the date eGlass is admitted to the official list of ASX;
Warrant Terms means the terms of issue of the Warrants as set out in Schedule 3.
| 2. | Interpretation |
In this agreement, unless the context otherwise requires:
| 2.1 | the Introduction is correct; |
| 2.2 | headings do not affect interpretation; |
| 2.3 | singular includes plural and plural includes singular; |
| 2.4 | words of one gender include any gender; |
| 2.5 | a reference to time is a reference to Adelaide, Australia time; |
| 2.6 | a reference to “dollars”, “US$” or “$” is a reference to United States currency; |
| 2.7 | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
| 2.8 | a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure; |
| 2.9 | reference to a person includes a corporation, body corporate, joint venture, association, government body, firm and any other entity; |
| 2.10 | a reference to a party is to a party to this agreement, and a reference to a party to an agreement includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
| 2.11 | a reference to this agreement includes this agreement as varied, supplemented, assigned or novated from time to time; |
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| 2.12 | reference to two or more people means each of them individually and all of them jointly; |
| 2.13 | if a party comprises two or more people: |
| (a) | a promise by that party binds each of them individually and all of them jointly; |
| (b) | a right given to that party is given to each of them individually; |
| (c) | a representation, warranty or undertaking by that party is made by each of them individually; |
| 2.14 | a provision must not be construed against a party only because that party prepared it; |
| 2.15 | a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed; |
| 2.16 | the meaning of general words or provisions shall not be limited by references to specific matters that follow them (for example, introduced by words such as “including” or “in particular”) or precede them or are included elsewhere in this agreement; |
| 2.17 | if a thing is to be done on a day which is not a Business Day, it must be done on the next Business Day; |
| 2.18 | another grammatical form of a defined expression has a corresponding meaning; |
| 2.19 | an expression defined in the Corporations Act 2001 (Cth) has the meaning given by that Act at the date of this agreement. |
| 3. | Completion |
| 3.1 | Obligations at Completion |
| (a) | On the Completion Date, the Company must: |
| (i) | issue the Subscription Notes and Warrants (Securities) to the Subscriber; |
| (ii) | cause the Subscriber to be registered as the holder of each of the Securities in the registers maintained by the Company in respect of each class of Security; |
| (iii) | issue Warrant Certificates in the name of the Subscriber in respect of each of the Warrants; |
| (iv) | issue a Note Certificate in the name of the Subscriber in respect of the Subscription Notes; |
| (v) | provide the Subscriber with a certified copy of the Warrant register showing the Subscriber as registered holder of the Warrants; |
| (vi) | provide the Subscriber with a certified copy of the Notes register showing the Subscriber as registered holder of the Subscription Note. |
| (b) | The Subscriber acknowledges that this agreement constitutes its application for each of the Securities and on the Completion Date the Subscriber agrees to: |
| (i) | subscribe for and accept the issue of the Securities; |
| (ii) | pay the Note Subscription Amount to the Company in respect of the Subscription Notes in Immediately Available Funds to the designated account determined by the Company; |
| (iii) | be bound by the Warrant Terms and the Note Terms (as applicable). |
| (c) | For the avoidance of doubt, no subscription price will be payable in respect of the issue of the Warrants. |
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| 3.2 | Time and place for Completion |
Completion will take place on the Completion Date and may occur by electronic exchange of documents.
| 3.3 | Securities |
Each of the Securities issued to the Subscriber must be issued:
| (a) | fully paid; |
| (b) | free and clear of all Encumbrances; |
| (c) | equal in ranking in all respects with the other equivalent securities on issue (if any) as at the Completion Date; and |
| (d) | such that they are able to be freely transferred by the Subscriber. |
| 4. | Notes and Warrants |
| 4.1 | Note Terms |
| (a) | Each Subscription Note is granted on, and subject to, the Note Terms. |
| (b) | Each party undertakes in favour of the other that it will comply with the Note Terms. |
| (c) | The Subscription Notes may only be Converted or Repaid (each as defined in the Note Terms), in accordance with the Note Terms. |
| 4.2 | Warrant Terms |
| (a) | Each Warrant is granted on, and subject to, the Warrant Terms. |
| (b) | Each party undertakes in favour of the other that it will comply with the Warrant Terms. |
| 4.3 | Warrant Exercise |
| (a) | The Warrants may be exercised by the Subscriber at any time after the date eGlass becomes admitted to the official list of ASX and any time prior to the relevant Warrant Expiry Date by delivering to the Company a Warrant Exercise Notice duly executed by the Subscriber (together with the relevant Warrant Certificate), specifying the number of Warrants being exercised, which number must be an integral multiple of 50,000, or whatever number of Warrants remain if there are less than 50,000 (the Relevant Number) and paying to the Company in Immediately Available Funds, upon the date of the issue of eGlass Shares in connection with the exercise of the relevant Warrants, an amount equal to the Warrant Exercise Price multiplied by the Relevant Number (Settlement Price). |
| (b) | eGlass must, within 2 Business Days of receipt of the documents referred to in clause 4.3(a): |
| (i) | issue to the Subscriber the Relevant Number of eGlass Shares; and |
| (ii) | if applicable, issue a replacement Warrant Certificate to the Subscriber for the remaining unexercised Warrants; |
| (c) | The Subscriber must, upon the same Business Day as the issue of eGlass Shares under clause 4.3(b), pay the Settlement Price to the Company in Immediately Available Funds. |
| (d) | A Warrant Exercise Notice once given is irrevocable and binds the Subscriber. |
| 4.4 | If Warrants not exercised |
| (a) | If any Warrants are not exercised in accordance with clause 4.3 on or before the Warrant Expiry Date, those Warrants will automatically expire. |
| (b) | The Warrants will automatically expire if eGlass does not become admitted to the official list of ASX on or before the first anniversary of the date of this agreement. |
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| 5. | Representations and warranties |
| 5.1 | Company Warranties |
The Company and eGlass represent and warrant to and for the benefit of the Subscriber that, except as fully and fairly disclosed prior to the date of this agreement, each of the following statements is true, accurate and not misleading as at the date of this agreement and as at the Completion Date:
| (a) | (Status) each Group Member is a body corporate validly existing under the laws of its place of incorporation or establishment; |
| (b) | (Corporate power) the Company has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; |
| (c) | (Corporate action) subject to the satisfaction of the conditions in clause 4.1, the Company 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) | (Power and capacity) each Group Member has the power and capacity to own its assets and to conduct its business in the manner presently conducted; |
| (e) | (Binding obligation) this agreement is the Company’s valid and binding obligation, enforceable in accordance with its terms; |
| (f) | (No contravention) neither the entry into nor performance by the Company nor eGlass of this agreement in accordance with its terms nor any transaction contemplated under this agreement violates in any material respect any provision of any judgment binding on the Company, its constituent documents, any law or any document, agreement or other arrangement binding on it or its assets; |
| (g) | (Solvency) There is no Insolvency Event or potential Insolvency Event relating to any Group Member and, assuming completion of this agreement, each Group Member is able to pay its debts as and when they fall due. |
| 5.2 | Subscriber Warranties |
The Subscriber represents and warrants to and for the benefit of the Company that each of the following statements is true, accurate and not misleading as at the date of this agreement and as at the Completion Date:
| (a) | If it is a company: |
| (i) | (status) it is a body corporate validly existing under the laws of its place of incorporation or establishment; |
| (ii) | (corporate power) it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; |
| (iii) | (corporate action) 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. |
| (b) | (binding obligation) This agreement is its valid and binding obligation. |
| (c) | (no contravention) Neither the entry into nor performance by it of this agreement nor any transaction contemplated under this agreement violates in any material respect any provision of any judgment binding on it, its constituent documents, any law or any document, agreement or other arrangement binding on it or its assets. |
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| (d) | (jurisdiction) It is not located or taken to be located in Australia or the United States of America, and this agreement does not constitute an offer to sell, or a solicitation of an offer to buy, securities in the United States or any other jurisdiction. |
The Subscriber acknowledges that any securities described in this agreement have not been, and will not be, registered under the US Securities Act of 1933 (as amended) and may not be offered or sold in the United States except in transactions exempt from, or not subject to, registration under the US Securities Act and applicable US state securities laws.
| 6. | Consents and approvals |
| 6.1 | Unless otherwise provided, a party may give or withhold its determination, consent, agreement, authorisation or approval: |
| (a) | in that party’s absolute discretion; |
| (b) | with or without conditions and without giving reasons; |
| (c) | when that party chooses. |
| 6.2 | A party’s determination, consent, agreement, authorisation or approval is valid only if it is in writing and signed by that party or its authorised representative. |
| 7. | Confidentiality |
| 7.1 | A party (using party) may only use Confidential Information of the other party: |
| (a) | if necessary to perform the using party’s obligations under this agreement; or |
| (b) | if the other party consents to the use. |
| 7.2 | A party (disclosing party) may only disclose Confidential Information of the other party: |
| (a) | to the disclosing party’s professional advisers; |
| (b) | if required by law or the rules of a recognised securities exchange; |
| (c) | if necessary to perform the disclosing party’s obligations or exercise the disclosing party’s rights under this agreement; |
| (d) | if the other party consents to the disclosure; |
| (e) | if and to the extent the information is publicly available other than by a breach of the disclosing party of this agreement, or any other agreement; or |
| (f) | if the information is already in the possession of the disclosing party or comes into the possession of the disclosing party other than by breach of this agreement, or any other agreement. |
| 7.3 | In this clause 7, the term “Confidential Information” means: |
| (a) | any term of this agreement; |
| (b) | trade secrets, know-how, financial data, accounting information, statistics, research, scientific, technical, product, market or pricing information of a party or relating to a party’s systems, business, employees or contractors; |
| (c) | any other information belonging to a party that is marked “confidential”; and |
| (d) | any other information belonging to a party which is of a confidential nature. |
| 8. | Assignment |
A party may only assign its rights or obligations under this agreement with the written consent of the other party, which consent must not be unreasonably withheld.
| 9. | Amendment |
This agreement may only be amended in writing signed by the parties.
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| 10. | No waiver |
| 10.1 | A party may only waive a breach of this agreement in writing signed by that party or its authorised representative. |
| 10.2 | A waiver is limited to the instance referred to in the writing (or if no instance is referred to in the writing, to past breaches). |
| 11. | No merger |
The rights and obligations under this agreement do not merge on completion of any transaction contemplated by this agreement.
| 12. | Further action |
| 12.1 | Each party must do all things necessary to carry out this agreement, including: |
| (a) | executing documents; and |
| (b) | ensuring its employees and agents perform their obligations. |
| 12.2 | A party must not do anything that will prevent this agreement from being carried out. |
| 13. | Entire agreement |
| 13.1 | This document records the entire agreement between the parties about its subject matter. |
| 13.2 | The parties exclude all terms implied by law, where possible. |
| 13.3 | Neither party has given any warranty or made any representation to the other party about the subject matter of this agreement, other than those warranties and representations appearing in this document. |
| 14. | Contribution |
Damages for any breach of this agreement are reduced to the extent that the claimant caused or contributed to the damage.
| 15. | Counterparts |
| 15.1 | This agreement may be executed in any number of counterparts. |
| 15.2 | Each counterpart of this agreement constitutes an original of this agreement, all of which together constitute one agreement. |
| 15.3 | In this clause, electronic signature means a digital signature or other visual representation of a person’s handwritten signature or mark placed or typed on a copy of this agreement by electronic or mechanical means (or any other means of electronic signing this agreement used by agreement between the parties) and electronically signed has a corresponding meaning. |
| 15.4 | The parties consent to this agreement being signed by or on behalf of a party by electronic signature. |
| 15.5 | Where this agreement is electronically signed by or on behalf of a party, the party warrants and agrees that the electronic signature has been used to identify the person signing and to indicate that the party intends to be bound by this agreement. |
| 15.6 | This agreement may be electronically signed in any number of counterparts which together will constitute one document. |
| 15.7 | Each party consents to the exchange of counterparts of this agreement by delivery by email to the party or its legal representative or other electronic means of exchange as the parties may agree. |
| 15.8 | If executed by electronic method, an electronic copy of this agreement duly executed by both parties will be taken to be an original. |
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| 16. | Notice |
| 16.1 | Notice must be in writing and in English, and may be given by an authorised representative of the sender. |
| 16.2 | Notice may be given to a person: |
| (a) | personally; |
| (b) | by leaving it at the person’s address last notified; |
| (c) | by sending it by pre paid mail to the person’s address last notified; |
| (d) | by sending it by electronic mail to the person’s email address last notified. |
| 16.3 | Notice is deemed to be received by a person: |
| (a) | when left at the person’s address; |
| (b) | if sent by pre paid mail, five Business Days after posting; |
| (c) | if sent by electronic mail, on the day after the day the message is showing on the sender’s electronic mail system as having been properly transferred or transmitted. |
However, if the notice is deemed to be received on a day which is not a Business Day it is deemed to be received on the next Business Day.
| 16.4 | If two or more people comprise a party, notice to one is effective notice to all. |
| 17. | Governing law |
| 17.1 | This agreement is governed by the law of South Australia. |
| 17.2 | The parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia and the South Australian division of the Federal Court of Australia, and the courts of appeal from them. |
| 17.3 | No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction. |
| 18. | Costs |
The parties must pay their own cost of preparing this agreement and any document required by this agreement.
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Schedule 1 – Note terms
| 1. | Defined terms |
Words and expressions defined in clause 16 have the meanings given to them in that clause when used in these Terms.
| 2. | Form and Face Value |
| 2.1 | Form |
| (a) | The Notes are unsecured, non-cumulative, non-redeemable, convertible notes issued under these Terms (Notes). |
| (b) | The Holder and transferees are entitled to the benefit of and are bound by the provisions of these Terms. |
| 2.2 | Face Value and Issue Price |
| (a) | Each Note has a face value of $1 (Face Value). |
| (b) | Each Note will be issued by the Issuer at an issue price of $1 (Issue Price). The Issue Price must be paid in full on the Issue Date. |
| 2.3 | Certificate |
A Certificate will be issued to each Holder in respect of the Holder’s Notes.
| 2.4 | Transfer |
| (a) | The Notes are transferable at the Holder’s absolute discretion, subject always to the Corporations Act and applicable law. |
| (b) | The Issuer must register a transfer of Notes on receipt of a document executed by the transferor and the transferee that constitutes the transfer. |
| 2.5 | Quotation |
The Notes will not be quoted on ASX.
| 3. | Ranking, security and other indebtedness |
| 3.1 | Ranking |
| (a) | The Notes are direct, unsecured and unsubordinated debt obligations of the Issuer and rank without preference or priority among themselves and at least equally with all present and future unsubordinated and unsecured debt obligations of the Issuer (subject to laws and principles of equity generally affecting creditors’ rights). |
| (b) | The ranking of Notes is not affected by the date of registration of any Holder in the Register. |
| 3.2 | No Security Interest |
Nothing in these Terms creates a Security Interest over any asset of the Issuer or eGlass.
| 4. | Interest |
| 4.1 | Interest free |
No interest is payable on the Notes.
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| 4.2 | Record Dates |
All payments under or in respect of any Note will be made only to the person registered as Holder of that Note on the relevant Record Date.
| 4.3 | Deductions and gross up |
| (a) | Subject to paragraph 4.3(b) and clause 4.4, all payments under or in respect of these Terms must be made without set off or counterclaim and free of deduction for or on account of any tax or similar amount. |
| (b) | The Issuer may withhold or deduct from any interest or other amounts payable to the Holder the amount of any Tax which a qualified legal or taxation advisor acceptable to the Holder (acting reasonably) advises the Holder in writing, and on letterhead, that the Issuer is required by law to withhold or deduct in respect of such interest or other amount. |
| (c) | If the Issuer is required by law to withhold or deduct from any amount payable to the Holder the amount of any Tax, the Issuer will pay such additional amounts to the Holder as are necessary to ensure that the Holder receives, in total, an amount equal to the amount that it would have received if no such withholding or deduction had been required. |
| (d) | The Issuer will pay the full amount required to be deducted to the relevant revenue authority within the time allowed for such payment without incurring penalty under the applicable law and will, if required by any Holder, deliver to that Holder a copy of the relevant receipt issued by the revenue authority without unreasonable delay after it is received by the Issuer. |
| 4.4 | Set off |
A Holder may set off any amounts owing by it to the Issuer against Claims owing by the Issuer to the Holder.
| 4.5 | Method of payment |
Any amount which is payable to the Holder in respect Notes will, unless the Issuer and Holder otherwise agree, be paid by direct credit into an account nominated by the Holder at a financial institution. If the Holder fails to nominate such an account, the amount may be deposited by the Issuer in an interest bearing bank account in the Issuer’s name established for the purpose and held by the Issuer until the Holder nominates an account, with such interest accruing to the Holder.
| 5. | Conversion |
| 5.1 | Conversion |
| (a) | Subject to clause 5.1(b), all Notes held by a Holder will Convert to eGlass Shares under clause 8.2(a), on the date eGlass receives notice from ASX that it will be admitted to the official list of ASX, subject only to customary conditions including the issue of eGlass Shares under the IPO. |
| (b) | If by the first anniversary of the date of this agreement eGlass has not received notice from ASX that it will be admitted to the official list of ASX, subject only to customary conditions including the issue of shares under the IPO, all Notes will convert to Issuer Shares under clause 8.2(b). |
| 5.2 | Number of Notes to be Converted |
A Conversion under clause 5.1 will be in relation to all (but not some only) of the Holder’s Notes.
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| 5.3 | Conversion upon Event of Default |
If an Event of Default has occurred, the Holder may require Conversion of all (but not some only) of the Holder’s holding of Notes, by giving a Conversion Notice to the Issuer no later than 15 Business Days after the date of the notice given by the Issuer under clause 7.1 providing notice to the Holder of the occurrence of the relevant event.
| 5.4 | Conversion Date |
Conversion must occur 2 Business Days after the first to occur of:
| (a) | the date the Conversion Notice is given to the Issuer by the Holder under clause 5.3; and |
| (b) | the date eGlass receives notice from ASX that it will be admitted to the official list of ASX, subject only to customary conditions including the issue of eGlass Shares under the IPO; and |
| (c) | the first anniversary of the date of this agreement, (Conversion Date). |
| 6. | Requirements of Holder Notices |
| 6.1 | Once given by the Holder, a Holder Repayment Notice or Conversion Notice (Holder Notice) cannot be withdrawn without the written consent of the Issuer. |
| 6.2 | A Holder Notice must be accompanied by evidence of title reasonably acceptable to the Issuer for the Notes the subject of the Holder Notice and is not taken to be a valid Holder Notice unless and until such evidence is actually received by the Issuer. |
| 6.3 | A Holder must not deal with, transfer, dispose of or encumber any Notes the subject of a Holder Notice once that Holder Notice has been given. |
| 6.4 | Where the Issuer has received a valid Conversion Notice in respect of any particular Notes, any Conversion Notice subsequently received will be taken to apply only to Notes which were not the subject of the prior Conversion Notice. The Directors may apply such adjustments (if any) as the Directors consider to be reasonably necessary to reflect this. |
| 7. | Repayment and notice obligations |
| 7.1 | Repayment on Change of Control Event or Event of Default |
| (a) | If a Change of Control Event or Event of Default has occurred, the Holder may require immediate Repayment of some or all of the Holder’s holding of Notes, in each case, by giving a Holder Repayment Notice to the Issuer no later than 20 Business Days after the date of the notice issued by the Issuer under clause 7.4 specifying such event. |
| (b) | Repayment must occur 5 Business Days after the date of the Holder Repayment Notice given to the Issuer by the Holder. |
| 7.2 | Repayment Amount |
Where Notes are to be Repaid under these Terms, the Issuer must pay the Holder an amount equal to the Repayment Amount for the relevant Notes on the Repayment Date.
| 7.3 | Repayment Date |
The Notes must be Repaid on the date specified in clause 7.1(b) (Repayment Date).
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| 7.4 | Notice requirements on Issuer |
The Issuer must give written notice to the Holder as soon as reasonably practicable after it becomes aware of the occurrence of:
| (a) | a Change of Control Event or an Event of Default; or |
| (b) | a breach by the Issuer of these Terms. |
| 7.5 | Purchase by tender |
| (a) | Subject to compliance with any applicable law, the Issuer and any of its Subsidiaries may at any time purchase Notes by tender offer, which must be made available to all Holders on a pro rata basis. |
| (b) | Notes purchased under this clause 7.5 may be held or resold at the discretion of the purchaser and the Notes may also be cancelled at the Issuer’s discretion. |
| 8. | Conversion |
| 8.1 | Conversion |
| (a) | On Conversion of any Notes, the Issuer must: |
| (i) | redeem each of those Notes for an amount equal to the Repayment Amount; and |
| (ii) | apply the whole of the amount payable on redemption by subscribing, on behalf of the Holder, for the number of eGlass Shares or Issuer Shares (as the case requires) calculated under clause 8.2. |
| (b) | The Holder irrevocably and unconditionally: |
| (i) | acknowledges that compliance with the process set out in clause 8.1(a) is in full and final satisfaction of the Holder’s rights in respect of the relevant Notes (whether as to Face Value or otherwise); and |
| (ii) | consents to be a member of eGlass or the Issuer (as applicable) and agrees to be bound by the constitution of eGlass or the Issuer. |
| (c) | Any issue of eGlass Shares or Issuer Shares under this clause 8.1 will have effect on and from, and be deemed to have been made on the Conversion Date. |
| 8.2 | Conversion Number |
| (a) | If clause 5.1(b) applies, the number of eGlass Shares to which the Holder is entitled upon Conversion of Notes is determined by the following formula: |
Where:
ARA means the aggregate of the Repayment Amount of the Notes being converted by the Holder on the Conversion Date.
Conversion Price means the IPO Price multiplied by 75% per Note.
| (b) | If clause 5.1(b) applies, the number of Issuer Shares to which the Holder is entitled upon Conversion of Notes is determined by the following formula: |
Where:
ARA means the aggregate of the Repayment Amount of the Notes being converted by the Holder which is due and payable on the Conversion Date.
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Conversion Price means the 30 day VWAP multiplied by 90% per Note.
30 day VWAP means the volume weighted average price per share of Issuer common stock as reported on the NASDAQ for the 30 consecutive trading days up to the day before the Conversion Date.
| (c) | Where the number of eGlass Shares or Issuer Shares to be issued to the Holder under clause 8.2(a) or 8.2(b) includes a fraction, that fraction will be rounded up. |
| 9. | Transactions |
The Issuer may enter into or vary any borrowing, other financial accommodation, guarantee and indemnity and may acquire, dispose of, create any security interest over or otherwise deal with any assets without requiring any consents from the Holder.
| 10. | Enforcement |
| 10.1 | Events of Default |
Each of the following is an Event of Default:
| (a) | (Non-payment) the Issuer fails to pay any amount payable by it under any Note within 5 Business Days after the date on which the payment is due; |
| (b) | (Non-delivery) the Issuer fails to issue Issuer Shares or eGlass fails to issue eGlass Shares (as applicable) on Conversion in accordance with these Terms within 2 Business Days after the date on which such issue is to be made; |
| (c) | (Breach of other obligations) the Issuer fails to comply with any of its other material obligations under the Terms and such failure remains unremedied for a period of 10 Business Days after the Issuer has received written notice in respect of the failure; |
| (d) | (Insolvency) an Insolvency Event occurs in respect of the Issuer; |
| (e) | (Vitiation) all or any material rights or obligations of the Issuer or Holder under these Terms are terminated or are or become void, illegal, invalid, unenforceable or of limited force and effect; and |
| (f) | (Unlawfulness) it is, at any time unlawful for the Issuer to perform any of its payment obligations under the Notes. |
| 10.2 | Consequences of Event of Default |
After the occurrence of an Event of Default, and at any time while that Event of Default subsists, the Holder may by notice in writing to the Issuer, exercise all or any of its powers to enforce its rights under these Terms.
| 11. | General |
| 11.1 | Issue of additional equity or debt securities |
The Issuer may from time to time without the consent of the Holder create and issue further Notes, any class of share capital or other equity or debt securities and create, issue, secure or guarantee any indebtedness upon such terms, including as to return of contribution or repayment in a Winding Up, as the Issuer may think fit (whether ranking ahead, behind or equally with the Claims of the Holder).
| 11.2 | Voting rights |
The Holder may attend, but not vote, at meetings of members of the Issuer unless otherwise provided for by the Corporations Act.
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| 11.3 | Ranking of shares |
| (a) | Subject to clause 11.3(b), each Issuer Share or Holder Share issued or delivered on Conversion will: |
| (i) | be issued fully paid and free and clear of all encumbrances; |
| (ii) | be freely transferrable by the Holder and the Issuer must do all things and lodge all documents required under the Corporations Act and, in the case of eGlass, ASX Listing Rules to comply with this obligation. |
| (b) | The Holder must sign all documents and do all other things (including entering any agreements required by chapter 9 and Appendix 9A of the ASX Listing Rules) that may be necessary or desirable for eGlass to become admitted to the official list of ASX. |
| 11.4 | Participation in new issues |
The Notes themselves confer no rights to subscribe for new securities in the Issuer, and the Holder acknowledges and agrees that the Issuer is free to issue further Notes or other securities (and to buy back or otherwise acquire Notes or other securities) without further reference to the Holder (except in circumstances where the Issuer has otherwise agreed to refer to the Holder in respect of further issues of Notes or other securities).
| 11.5 | Delivery of shares and payments to the Holder |
| (a) | Shares which are to be issued or transferred to the Holder upon Conversion are to be registered in the name of the Holder and a holding statement in respect of those shares is to be sent to the Holder (at its registered address). |
| (b) | Any amount (including for the avoidance of doubt any amount payable on Repayment) which is payable to the Holder in respect of Notes is to be paid in the manner provided in clause 4.5. |
| 12. | Certificate and Register |
| 12.1 | Certificate |
| (a) | Upon registration of a transfer of Notes, the Issuer must cancel the Certificate in respect of those Notes and re- issue a Certificate in respect of the Notes to the transferee. |
| (b) | Upon Repayment or Conversion of Notes, the Issuer must cancel the Certificate in respect of those Notes. |
| 12.2 | Maintenance of Register |
The Issuer must prepare and maintain a Register which contains all usual and proper information relating to the Notes including, without limitation:
| (a) | the name and address of each holder of Notes; |
| (b) | the number and Face Value of Notes issued by the Issuer; |
| (c) | whether Notes held by or on behalf of any noteholder have been repaid, converted or transferred; |
| (d) | the date of issue, transfer, repayment or conversion of each Note; and |
| (e) | the number of each Certificate. |
| 12.3 | Effect of inscription |
| (a) | Each inscription in the Register is sufficient and conclusive evidence to all persons and for all purposes that the person whose name is so inscribed is the registered holder of the Note, except in the case of manifest error, fraud or a breach by the Issuer of its obligations under the Terms. |
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| (b) | The Issuer must, if directed by the Holder, record on the Register that the Holder (or nominee) holds its Notes as trustee or custodian for another party. |
| 12.4 | Inspection |
The Issuer must make the Register available for inspection by the Holder during business hours and as otherwise required by the Corporations Act.
| 12.5 | Replacement |
If any Certificate:
| (a) | becomes worn out or defaced, the Issuer must upon the Certificate being provided to the Issuer and upon request by the Holder, cancel the Certificate and issue a replacement Certificate to the Holder; and |
| (b) | is lost or destroyed, the Issuer must upon request by the Holder, cancel the Certificate and issue a replacement Certificate to the Holder. |
| 13. | Notices |
| 13.1 | Service of notices |
| (a) | A notice may be given by the Issuer to any Holder, or in the case of joint Holders to the Holder whose name appears first in the Register: |
| (i) | personally; |
| (ii) | by leaving it at the Holder’s address noted in the Register or by sending it by prepaid post (airmail if posted to a place outside Australia) addressed to the Holder’s address noted in the Register; |
| (iii) | by email, at the delivery address nominated by the Holder. |
If the notice is signed, the signature may be original, printed or in digital format.
| (b) | A notice given by the Holder to the Issuer must: |
| (i) | be in writing and signed by a person duly authorised by the sender; and |
| (ii) | be left at, or sent by prepaid post (airmail if posted from a place outside Australia) to the address last notified by the Issuer, or sent by electronic mail transmission to the email address last notified by the Issuer: |
If the notice is signed, the signature may be original, printed or in digital format.
| 13.2 | When notice considered to be received |
Any notice is taken to be received:
| (a) | if served personally or left at the intended recipient’s address, when delivered; |
| (b) | if sent by prepaid post, on the third Business Day (or, if posted to or from a place outside Australia, the seventh day) after the date of posting; |
| (c) | if sent by facsimile, on production of a report by the machine indicating that the transmission has been made in its entirety to the correct fax number; and |
| (d) | if sent by electronic mail, 24 hours after being sent by the sender, unless the sender receives an error message or out of office message in response to its electronic mail, in which case notice is not taken to be received, but if the result is that a notice would be taken to be given or made on a day that is not a Business Day it will be taken to have been duly given or made at the commencement of business on the next business day in that place. |
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| 13.3 | Notice to transferor binds transferee |
Every person who, by operation of law, transfer or any other means, becomes entitled to be registered as the Holder of any Note is bound by every notice which, prior to the person’s name and address being entered in the Register in respect of the Notes, was properly given to the person from whom the person derived title to those Notes.
| 13.4 | Service on deceased Holder |
A notice served in accordance with this clause 13 is (despite the fact that the Holder is then deceased and whether or not the Issuer has notice of the Holder’s death) considered to have been properly served in respect of any Notes, whether held solely or jointly with other persons by the Holder, until some other person is registered in the Holder’s place as the Holder or joint Holder. The service is sufficient service of the notice or document on the Holder’s personal representative and any persons jointly interested with the Holder in the Notes.
| 14. | Amendments to these Terms |
| 14.1 | Amendment without consent |
At any time, but subject to compliance with the Corporations Act and all other applicable laws, the Issuer may in accordance with these Terms, without the consent of the Holder, amend these Terms if the Issuer is of the opinion that such amendment is of a formal or technical nature or is made to correct a manifest error and the Issuer has provided the Holder with a legal opinion in form and substance satisfactory to the Holder (acting reasonably) addressed to or otherwise able to be relied on by the Holder from legal advisers of recognised standing in Australia acceptable to the Holder (acting reasonably) opining that such amendment (taken as a whole and in conjunction with all other modifications, if any, to be made contemporaneously with that modification) is otherwise not prejudicial in any way to the interests of the Holder.
| 14.2 | Amendment with consent |
At any time, but subject to clause 14.1 and compliance with the Corporations Act and all other applicable laws, the Issuer may amend these Terms if such amendment is approved by a Holder Resolution.
| 15. | Governing law and jurisdiction |
| 15.1 | Governing law |
The Notes and these Terms are governed by the laws of South Australia, Australia.
| 15.2 | Jurisdiction |
The Issuer and each Holder submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia in connection with matters concerning the Notes or these Terms.
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| 16. | Interpretation and Definitions |
| 16.1 | Interpretation |
Headings are for convenience only and do not affect interpretation. The following rules apply in the interpretation of these Terms unless the context requires otherwise:
| (a) | Unless otherwise specified, the Directors may exercise all powers of the Issuer under these Terms as are not, by the Corporations Act or by the constitution of the Issuer required to be exercised by the Issuer in a general meeting. |
| (b) | Notices may be given by the Issuer to the Holder in the manner prescribed by the these Terms. |
| (c) | If a calculation is required under these Terms, unless the contrary intention is expressed, the calculation will be rounded to 2 decimal places. For the purposes of making any payment in respect of the Holder’s aggregate holding of Notes, any fraction of a cent will be disregarded. For the purposes of issuing or transferring shares in respect of the Holder’s aggregate holding of Notes, any fraction of a share will be rounded up. |
| (d) | Calculations, elections and determinations made by the Issuer under these Terms are binding on the Holder in the absence of manifest error. |
| (e) | A reference to $ or cents in these Terms is a reference to United States of America currency. A reference to time in these Terms is a reference to Sydney time. |
| (f) | The terms ‘associate’, ‘relevant interest’, ’scheme of arrangement’ and ‘takeover bid’ when used in these Terms have the meaning given in the Corporations Act. |
| (g) | A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them. |
| (h) | If an event under these Terms must occur on a stipulated day which is not a Business Day, then the stipulated day will be taken to be the next Business Day. |
| (i) | If a term is given a defined meaning, different grammatical forms of the term have corresponding meanings. |
| (j) | The singular includes the plural and the converse. |
| 16.2 | Definitions |
The following expressions have the following meanings in these Terms:
ASX means ASX Limited (ABN 98 008 624 691) or the securities exchange operated by ASX Limited, as the context requires;
ASX Listing Rules means the listing rules of ASX as amended or replaced from time to time, except to the extent of any express written waiver by ASX;
Business Day means a day on which banks are open for business in Adelaide, Australia, which is not a Saturday, Sunday or public holiday;
Certificate means a certificate in the form set out in Schedule 1;
Change of Control Event means each of:
| 1 | a takeover bid is made to acquire all of the Issuer Shares and the offer under the takeover bid is, or becomes, unconditional and: |
| ● | the bidder has acquired at any time during the offer period (or after the close of the offer period) a relevant interest in more than 50 per cent of the Issuer Shares on issue; or |
| ● | the directors of the Issuer unanimously recommend acceptance of the offer under the takeover bid, and acceptance of that offer would result in the bidder having a relevant interest in 100 per cent of the Issuer Shares on issue; and |
| 2 | a court approves a proposed scheme of arrangement which, when implemented, will result in a person having a relevant interest in 100 per cent of the Issuer Shares on issue (where the requisite shareholder approval has also been obtained); |
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Claim means in respect of any person, any claim, action, demand, suit or proceeding for damages or other monetary compensation, debt, restitution, equitable compensation, account, injunction, specific performance or other remedy that person has or may have, whether under contract, statute or otherwise, against the Issuer;
Conversion means the Holder ceasing to hold Notes and receiving Issuer Shares of esGlass Shares (as applicable) in accordance with clause 8.1, and Convert and Converted have corresponding meanings;
Conversion Date has the meaning given in clause 5.4;
Conversion Notice means a Conversion Notice given by the Holder under clause 5.1 or clause 5.3 in the form set out at Schedule 2;
Conversion Price has the meaning given in clause 8.2(a);
Corporations Act means the Corporations Act 2001 (Cth);
Director means a director of the Issuer;
Event of Default has the meaning given in clause 10.1;
Face Value has the meaning given in clause 2.2(a);
Financial Indebtedness means any indebtedness, present or future, actual or contingent, in relation to money borrowed or raised by the Issuer or any Subsidiary;
Governmental Agency means a government or a governmental, semi-government, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law (as defined in the GST Act) or otherwise on a supply;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Holder means a person whose name is for the time being registered in the Register as the holder of Notes;
Holder Notice means a Conversion Notice or a Holder Repayment Notice;
Holder Repayment Notice means a notice given by the Holder to the Issuer to Repay Notes under clause 7.1 in the form as set out in Schedule 3;
Holder Resolution means a resolution in writing signed by Holders who hold more than 90 per cent in terms of aggregate Face Value of the Notes on issue which resolution may be contained in one document or in several documents in like form each signed by one or more Holders, but only if a copy of the resolution has been delivered to all persons who would otherwise be entitled to receive notice of a meeting and in like form);
Insolvency Event occurs in relation to a body corporate if:
| 1 | it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or |
| 2 | it has a controller (as defined in the Corporations Act) appointed, or is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property; or |
| 3 | it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the creditors); or |
| 4 | an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of 1, 2 or 3 above; or |
| 5 | it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand; or |
| 6 | it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which a creditor reasonably deduces it is so subject); or |
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| 7 | it is otherwise unable to pay its debts when they fall due; or |
| 8 | something having a substantially similar effect to 1 to 7 happens in connection with it under the law of any jurisdiction; |
IPO means an initial public offering of shares in eGlass pursuant to a prospectus to be lodged with ASIC, in support of an application by eGlass to be admitted to the official list of ASX;
IPO Price means the price at which new shares in eGlass are offered to the public pursuant to the IPO;
Issue Date means in relation to the Notes, the date on which the Notes are issued, which is expected to be on or around June 15, 2022;
Issue Price has the meaning given in clause 2.2(b);
Issuer means Integrated Media Technology Limited ACN 132 653 948;
Issuer Share means an ordinary fully paid share in the capital of the Issuer;
Notes has the meaning given in clause 2.1;
Record Date in relation to any payment to be made under or in respect of the Notes, 7:00pm (Sydney time) on the date which is 20 Business Days before the due date for payment;
Register means the register of Holders as provided for in clause 12.2;
Repayment means the repayment of Notes in accordance with clause 7, and Repaid and Repay have corresponding meanings;
Repayment Amount means an amount equal to the Face Value;
Repayment Date has the meaning given in clause 7.3;
Security Interest means any mortgage, pledge, lien or charge or any security or preferential interest or arrangement of any kind and includes:
| 1 | any right of or arrangement with any creditors to have a claim satisfied in priority to other creditors with or from the proceeds of any asset; and |
| 2 | retention of title (other than in the ordinary course of day-to-day trading) and a deposit of money by way of security; |
eGlass means eGlass Technologies Ltd ACN 659 782 028;
eGlass Share means an ordinary fully paid share in the capital of eGlass;
Subsidiary has the meaning given in the Corporations Act, but an entity will also be taken to be a Subsidiary of an entity if it is controlled by that entity (expressions used in this definition have the meanings given for the purposes of Chapter 2M of the Corporations Act) and, without limitation:
| 1 | a trust may be a Subsidiary, for the purposes of which a unit or other beneficial interest will be regarded as a share; and |
| 2 | an entity may be a Subsidiary of a trust if it would have been a Subsidiary if that trust were a corporation; |
Tax means any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount. It includes GST;
Tax Act means:
| 1 | the Income Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997 (Cth) as the case may be, as amended, and a reference to any section of the Income Tax Assessment Act 1936 (Cth) includes a reference to that section as rewritten in the Income Tax Assessment Act 1997 (Cth); and |
| 2 | any other statute setting the rate of income tax payable and any regulation promulgated thereunder; |
Terms mean these terms of issue for the Notes;
Winding Up means in respect of a person the appointment of a liquidator or provisional liquidator of that person (and where the appointment is made by a court, by a court of competent jurisdiction in Australia).
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Schedule 1
Certificate
Convertible Note Certificate
Certificate Number: [insert number]
[Name]
(Company)
THIS IS TO CERTIFY that [insert name, ACN or ABN (if any) and address] (the Noteholder) is the registered holder of [insert number] Notes with a face value of $1.00 each issued by the Company on [insert date].
Capitalised terms used but not defined in this certificate have the same meaning as defined in the terms of issue of the Notes.
Signed, sealed and delivered by
[IMTE] by
21
Schedule 2
Form of Conversion Notice
To: The Directors
[ ]
(Company)
I/We refer to the terms of issue of the Notes constituting the Notes between the Holder and the Company (the Terms). Capitalised terms used but not defined in this notice have the meanings given in the Terms.
We, being the Holder of [insert number] Notes (or on whose behalf the Notes are held), hereby exercise our right under the Terms to require the Company to Convert [insert number] Notes on [insert date] into [Issuer Shares/eGlass Shares] at the Conversion Price of [insert price] in accordance with the Terms.
The original Certificate is enclosed. [Insert execution
block]
Dated: [*]
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Schedule 3
Form of Holder Repayment Notice
To: The Directors
[ ]
(Company)
I/We refer to the terms of issue of the Notes constituting the Notes between the Holder and the Company (the Terms). Capitalised terms used but not defined in this notice have the meanings given in the Terms.
We, being the Holder of [insert number] Notes (or on whose behalf the Notes are held), hereby exercise our right under the Terms to require the Company to Repay [insert number] Notes.
The Company must pay [insert amount], being the Repayment Amount, in immediately available and freely transferable funds by direct credit into [insert account details] on [insert] in accordance with the Terms.
The original Certificate is enclosed. [Insert execution block]
Dated: [*]
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Schedule 2 – Warrant Exercise Notice
To: [ ] (Company)
In accordance with the subscription agreement dated [insert date] and made between the Company and [ ] (Subscriber) (Agreement), the Subscriber:
| (a) | irrevocably notifies you that the Subscriber exercises its rights under the Agreement to exercise [insert number] of Warrants by giving this notice to the Company under clause 6.3 and encloses the documents required under that clause; |
| (b) | requires you to issue [insert] Shares to the Subscriber for the Warrant Exercise Price on the terms of the Agreement; |
| (c) | agrees to hold all Shares issued to it on and subject to the provisions of the Constitution; and |
| (d) | undertakes to pay to the Company the Settlement Price in Immediately Available Funds. |
Terms which are used in this notice and have a defined meaning in the Agreement have that meaning in this notice.
Dated:
Signed by
[ ]
by
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Schedule 3 – Warrant Terms
TERMS AND CONDITIONS OF UNLISTED WARRANTS
| (a) | Each warrant (Warrant) issued by eGlass Technologies Ltd (eGlass) on these terms and conditions entitles its holder (Warrantholder) to the issue of one (1) fully paid ordinary share in the capital of eGlass (Share) upon delivery of a Warrant Exercise Notice and payment of the Warrant Exercise Price (as defined below) at any time following issue of the Warrant but before 5.00pm (Adelaide Time) on the relevant Warrant Expiry Date (Exercise Period). |
| (b) | Capitalised terms used but not defined in these Warrant Terms have the same meaning as defined in the subscription agreement between the eGlass, Integrated Media Technology Ltd and [ ] (Agreement). |
| (c) | A Warrantholder may exercise Warrants at any time during the Exercise Period. |
| (d) | The Warrant Exercise Price is the amount equal to the IPO Price. |
| (e) | The Warrants are assignable and transferrable. |
| (f) | The Warrants may be exercised by the Subscriber at any time prior to the relevant Warrant Expiry Date by delivering to the Company a Warrant Exercise Notice duly executed by the Subscriber (together with the relevant Warrant Certificate), specifying the number of Warrants being exercised, which number must be an integral multiple of 50,000, or whatever number of Warrants remain if there are less than 50,000 (the Relevant Number) and paying to the Company in Immediately Available Funds, upon the date of the issue of Shares in connection with the exercise of the relevant Warrants, an amount equal to the Warrant Exercise Price multiplied by the Relevant Number (Settlement Price). |
| (g) | The Warrantholder must, upon the same Business Day as the issue of Shares under exercise of Warrants, pay the Settlement Price to the Company in immediately available funds. |
| (h) | The Warrants expire on the Warrant Expiry Date. |
| (i) | Until the exercise or expiry of all the Warrants, the Company will: |
| (i) | give the Warrantholder notice of all general meetings of the Company and of all resolutions to be considered at those meetings at the same time the shareholders of the Company are issued with such notices; and |
| (ii) | not do anything by way of altering its constitution or otherwise which has the effect of changing or converting any Shares into shares of another class, or restricts the Company’s ability to issue Shares on the exercise of Warrants. |
| (j) | Until the exercise or expiry of all of the Warrants, the Company must ensure that the Warrantholder is given at least 10 Business Days written notice prior to the Record Date in relation to any pro-rata issue of shares or rights to subscribe for shares issued or to be issued by the Company (Additional Rights). |
| (k) | A Warrant does not confer any voting rights or rights to dividends. |
| (l) | A Warrant does not confer any right on the Warrantholder to participate in a new issue without exercising the Warrant. |
| (m) | The Warrantholder will be entitled to participate in any rights to take up Additional Rights on the same terms and conditions as applicable to the other offerees or shareholders of the Company provided that the Warrantholder has exercised any Warrant prior to the Record Date for the relevant offer. |
| (n) | Any Shares issued to the Warrantholder as a result of the exercise of a Warrant will rank pari passu in all respects with all other Shares then on issue. Shares issued upon the exercise of Warrants will only carry an entitlement to receive a dividend if they were issued on or before the Record Date for that dividend. |
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| (o) | The Warrantholder has the right for the Warrant Exercise Price to be adjusted in accordance with these Warrant Terms. |
| (p) | In the event of a pro rata issue of Shares by the Company (except a bonus issue), the Warrant Exercise Price for each Warrant will be adjusted in accordance with Listing Rule 6.22.2 of the ASX Listing Rules (which adjustment formula will apply even where the Company is not admitted to the official list of the ASX). |
| (q) | If there is a bonus issue to the holders of Shares, the number of Shares over which the Warrants are exercisable may be increased by the number of Shares which the Warrantholder would have received if the Warrant had been exercised before the record date for the bonus issue. |
| (r) | If the Company reorganises its capital, the rights of a Warrantholder (and the Warrant Exercise Price) will be changed to the extent necessary to comply with the ASX Listing Rules applying to a reorganisation of capital, at the time of the reorganisation. |
| (s) | The terms of Warrants applicable to a particular Warrantholder may be varied at any time by written agreement between the Company and the relevant Warrantholder. |
| (t) | If any Warrant Certificate is lost, stolen, mutilated, defaced or destroyed, the holder of the relevant Warrants may apply for a replacement Warrant Certificate. The application must be accompanied by: |
| (i) | a written statement that the certificate has been lost or destroyed and not otherwise pledged, sold or otherwise disposed of; |
| (ii) | if the certificate has been lost, a written statement that proper searches have been made; and |
| (iii) | an undertaking that, if the certificate is found or received by the holder of the relevant Warrants, it will be returned to the Company. |
| (u) | The Company must issue a replacement Warrant Certificate within 5 Business Days after receipt of the documents referred to above. |
These terms and the Warrants are governed by the laws of South Australia, Australia.
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Schedule 4 – Warrant Certificate
Warrant Certificate
Certificate Number: [insert number]
[ ]
(Company)
THIS IS TO CERTIFY that [insert] (the Warrantholder) is the registered holder of [insert] Warrants with an Warrant Exercise Price of [insert], subject to adjustment, each issued by the Company on [insert].
Capitalised terms used but not defined in this certificate have the same meaning as defined in the terms of issue of the Warrants.
Signed, sealed and delivered by
[ ]
by
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Executed as an agreement on
|
Executed by Integrated Media Technology Limited in accordance with section 127 of the Corporations Act 2001 (Cth):
| ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
Executed by eGlass Technologies Ltd
| ||
| Director | Director/Company Secretary | |
| Name (please print) | Name (please print) | |
|
Executed by [ ] in accordance with section 127 of the
|
||
| Signature | ||
| Name (please print) | ||
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