Notice of change of interests of substantial holder
604 page 1/2 15 July 2001
109196495
Form 604
Corporations Act 2001
Section 671B
Notice of change of interests of substantial holder
To Company Name/Scheme Ventia Services Group Limited (Ventia)
ACN 603 253 541
1. Details of substantial holder (1)
Name CIMIC Group Investments No.3 Pty Limited (CIMIC) and its related bodies corporate
ACN 653 589 649
There was a change in the interests of the
substantial holder on 04/09/2023 trade date / 06/09/2023 settlement date
The previous notice was given to the company on 09/05/2023
The previous notice was dated 09/05/2023
2. Previous and present voting power
The total number of votes attached to all the voting shares in the company or voting interests in the scheme that the substantial holder or an associate (2) had a
relevant interest (3) in when last required, and when now required, to give a substantial holding notice to the company or scheme, are as follows:
Class of securities (4)
Previous notice Present notice
Person’s votes Voting power (5) Person’s votes Voting power (5)
Fully paid ordinary shares 250,720,488 29.31% 99,777,092 11.66%
3. Changes in relevant interests
Particulars of each change in, or change in the nature of, a relevant interest of the substantial holder or an associate in voting securities of the company or
scheme, since the substantial holder was last required to give a substantial holding notice to the company or scheme are as follows:
Date of
change
Person whose
relevant interest
changed
Nature of
change (6)
Consideration
given in relation
to change (7)
Class and
number of
securities
affected
Person’s votes
affected
4 September
2023
CIMIC and its related
bodies corporate
Sale of fully paid
ordinary shares in
Ventia (Shares) by
CIMIC in accordance
with the block trade
agreement dated 1
September 2023, a
copy of which is
attached as Annexure
1 (
completion of sale 6
September 2023).
A$2.65 for each Share sold
by CIMIC
62,500,000 Shares 62,500,000
4 September
2023
CIMIC and its related
bodies corporate
Sale of Shares by AIF
VIII Singapore Pte Ltd
(AIF) in accordance
with the block trade
agreement dated 1
September 2023, a
copy of which is
attached as Annexure
1
(completion of sale 6
September 2023).
CIMIC and its related
bodies corporate
previously had a
deemed relevant
interest in these
Shares arising under
section 608(1)(c) of
the Corporations Act
because of provisions
in the Escrow Deed
(see the second row
of section 4 below for
further detail).
A$2.65 for each Share sold
by AIF (this consideration
was received by AIF and
not by CIMIC or any of its
related bodies corporate)
88,443,396 Shares 88,443,396
4. Present relevant interests
Particulars of each relevant interest of the substantial holder in voting securities after the change are as follows:
Holder of
relevant
interest
Registered
holder of
securities
Person entitled
to be registered
as holder (8)
Nature of
relevant
interest (6)
Class and
number of
securities
Person’s votes
CIMIC and its
related bodies
corporate
CIMIC CIMIC
CIMIC is the registered
holder of 62,860,244
Shares and therefore has a
relevant interest in those
Shares under section
608(1)(a) of the
Corporations Act. CIMIC’s
related bodies corporate
have a deemed relevant
interest in these Shares
under section 608(3) of the
Corporations Act.
62,860,244 Shares 62,860,244
CIMIC and its
related bodies
corporate
AIF AIF
As disclosed in section
9.8.2 of Ventia’s
prospectus dated 26
October 2021 (as
supplemented on 15
November 2021), CIMIC
also has a deemed
relevant interest in the
remaining Shares held by
AIF. This relevant interest
arises under section
608(1)(c) of the
Corporations Act, because
of provisions in the escrow
deed (as amended by the
block trade agreement
attached at Annexure 1)
between AIF, CIMIC Group
Limited (being the owner of
CIMIC), Ventia and others,
a copy of which is attached
as Annexure 2 (Escrow
Deed), relating to
cooperation on any sale of
escrowed Shares following
expiry of the Escrow Period
(as defined in the Escrow
Deed). CIMIC’s related
bodies corporate have a
deemed relevant interest in
these Shares under section
608(3) of the Corporations
Act.
As noted in section 3
above, on 6 September
2023, AIF will complete its
sale of 88,443,396 Shares
in accordance with the
block trade agreement
dated 1 September 2023, a
copy of which is attached
as Annexure 1.
36,916,848 Shares 36,916,848
109196495
5. Changes in association
The persons who have become associates (2) of, ceased to be associates of, or have changed the nature of their association (9) with, the substantial holder in
relation to voting interests in the company or scheme are as follows:
Name and ACN/ARSN (if applicable) Nature of association
N/A N/A
6. Addresses
The addresses of persons named in this form are as follows:
Name Address
CIMIC and its related bodies corporate C/- Level 25, 177 Pacific Highway, North Sydney NSW 2060, Australia
Signature
print name Robert Cotterill capacity Director
sign here date 05/09/2023
DIRECTIONS
(1) If there are a number of substantial holders with similar or related relevant interests (eg. a corporation and its related corporations, or the manager and
trustee of an equity trust), the names could be included in an annexure to the form. If the relevant interests of a group of persons are essentially similar,
they may be referred to throughout the form as a specifically named group if the membership of each group, with the names and addresses of members
is clearly set out in paragraph 6 of the form.
(2) See the definition of "associate" in section 9 of the Corporations Act 2001.
(3) See the definition of "relevant interest" in sections 608 and 671B(7) of the Corporations Act 2001.
(4) The voting shares of a company constitute one class unless divided into separate classes.
(5) The person’s votes divided by the total votes in the body corporate or scheme multiplied by 100.
(6) Include details of:
(a) any relevant agreement or other circumstances because of which the change in relevant interest occurred. If subsection 671B(4) applies, a copy
of any document setting out the terms of any relevant agreement, and a statement by the person giving full and accurate details of any contract,
scheme or arrangement, must accompany this form, together with a written statement certifying this contract, scheme or arrangement; and
(b) any qualification of the power of a person to exercise, control the exercise of, or influence the exercise of, the voting powers or disposal of the
securities to which the relevant interest relates (indicating clearly the particular securities to which the qualification applies).
See the definition of "relevant agreement" in section 9 of the Corporations Act 2001.
(7) Details of the consideration must include any and all benefits, money and other, that any person from whom a relevant interest was acquired has, or may,
become entitled to receive in relation to that acquisition. Details must be included even if the benefit is conditional on the happening or not of a
contingency. Details must be included on any benefit paid on behalf of the substantial holder or its associate in relation to the acquisitions, even if they
are not paid directly to the person from whom the relevant interest was acquired.
(8) If the substantial holder is unable to determine the identity of the person (eg. if the relevant interest arises because of an option) write “unknown’”.
(9) Give details, if appropriate, of the present association and any change in that association since the last substantial holding notice.
109196495.2
CIMIC GROUP INVESTMENTS NO.3 PTY LIMITED
ACN 603 253 541
THIS IS ANNEXURE 1 OF 21 PAGES REFERRED TO IN FORM 604
print name Robert Cotterill capacity Director
sign here date / /
05
2309
Type text here
CIMIC Group Investments No.3 Pty Limited
ACN 653 589 649
Level 25, 177 Pacific Highway,
North Sydney NSW 2060
AIF VIII Singapore Pte Ltd
8 Marina Boulevard
#07-02 Marina Bay Financial Centre
Singapore 018981
Singapore
1 September 2023
Dear Sirs/Madams
COMMERCIAL-IN-CONFIDENCE
Sale of Securities in Ventia Services Group Limited
1 Introduction
This agreement sets out the terms and conditions upon which CIMIC Group Investments
No.3 Pty Limited (ACN 653 589 649) (CIMIC) and AIF VIII Singapore Pte Ltd (Apollo)
(each a Seller and together the Sellers) engage Barrenjoey Markets Pty Limited ACN
636 976 059 (Barrenjoey), and J.P. Morgan Securities Australia Limited ACN 003 245
234 (J.P. Morgan) (Barrenjoey and J.P. Morgan together the Joint Lead Managers) to
procure purchasers for 150,943,396 existing fully paid ordinary shares in Ventia Services
Group Limited (ABN 53 603 253 541) (Company) held by the Sellers (with the number of
such existing fully paid ordinary shares to be sold by each Seller as set out in Schedule
1) (Sale Securities) (Sale) and the Joint Lead Managers agree to manage the sale of the
Sale Securities and to underwrite the Sale in accordance with the terms of this
agreement.
2 Sale of securities
2.1 Sale
The Sellers agree to sell the Sale Securities in their Respective Proportions and the Joint
Lead Managers, either themselves or through Affiliates (as defined in clause 10.5), agree
to:
(a) manage the sale of the Sale Securities by procuring purchasers for the Sale
Securities at a price of $2.65 per Sale Security (Sale Price). Purchasers may
include the Joint Lead Managers’ related bodies corporate (as that term is
defined in the Corporations Act) (Related Bodies Corporate) and Affiliates and
shall be determined by the Joint Lead Managers in their discretion following
consultation with the Sellers; and
(b) underwrite and guarantee the sale of the Sale Securities, in their JLM
Proportions, by purchasing, at the Sale Price per Sale Security, in their JLM
Proportions, any Sale Securities which have not been purchased by third party
purchasers (or the Joint Lead Managers’ Related Bodies Corporate or Affiliates)
in accordance with clause 2.1(a) as at 9.45am on the Trade Date specified in
the Timetable in Schedule 2 (or such other time as the parties agree in writing)
(Balance Securities),
subject to and in accordance with the terms of this agreement.
2.2 Retention Securities
Notwithstanding anything else in this agreement, where acquisition of some or all of the
Balance Securities by a Joint Lead Manager is prohibited or restricted by the application
of the takeover provisions in the Corporations Act 2001 (Cth) (Corporations Act) or
would require notification by a Joint Lead Manager or an Affiliate and non-objection by
the Treasurer of the Commonwealth of Australia under the Foreign Acquisitions and
Takeovers Act 1975 (Cth) (FATA) or related policy, the Sellers and the relevant Joint
Lead Manager agree that:
(a) the Sellers shall retain such number of Balance Securities in their Respective
Proportions as necessary in order to prevent the breach (Retention
Securities), and the relevant Joint Lead Manager shall advise the Sellers of the
number of Retention Securities relating to it (to avoid doubt, there may be
Retention Securities relating to more than one Joint Lead Manager);
(b) the relevant Joint Lead Manager must still comply with its obligations to pay to
the Sellers the full amount provided in clause 2.4, but the portion of that amount
that is equal to the number of any Retention Securities relating to the relevant
Joint Lead Manager multiplied by the Sale Price is to be provided to the Sellers
as an interest free loan (Advance Amount) (so that the Advance Amount is
advanced to each Seller in their Respective Proportions) (to avoid doubt, there
may be an Advance Amount relating to more than one Joint Lead Manager);
(c) each Seller is only required to repay the Advance Amount relating to a Joint
Lead Manager from and to the extent it receives or is entitled to receive
proceeds from the sale of Retention Securities relating to that Joint Lead
Manager prior to 7.00pm on the date that is 30 Business Days after the date of
this agreement (End Date) (with such amounts being set off as provided in
clause 2.2(f) below and, for the avoidance of doubt, a Joint Lead Manager will
not be entitled to claim from the Sellers any payment of the Advance Amount
relating to it except by way of set-off under this clause 2.2 and will not be
entitled to claim from the Sellers any Advance Amount relating to it which
remains outstanding after the End Date), and the Sellers are not responsible for
any shortfall in repayment from the proceeds of the sale of Retention Securities
and the relevant Joint Lead Manager will bear the loss arising from any such
shortfall;
(d) the relevant Joint Lead Manager must procure purchasers for any Retention
Securities relating to it as agent for the Sellers in the ordinary course of the
relevant Joint Lead Manager’s business prior to 7.00pm on the End Date, with
settlement of the sale of the relevant Retention Securities occurring on or before
the third Business Day following the sale of the relevant Retention Securities;
(e) the Sellers will transfer Retention Securities relating to a Joint Lead Manager in
accordance with the directions of the relevant Joint Lead Manager to settle
those sales; and
(f) the relevant Joint Lead Manager must apply, by way of set off, the proceeds for
the purchase of any Retention Securities relating to it against the Advance
Amount relating to it, immediately upon that Joint Lead Manager’s receipt of
those proceeds.
The Sellers acknowledge that the relevant Joint Lead Manager does not acquire any
interest or relevant interest in, or rights in respect of, any Retention Securities except to
act as agent for the Seller in procuring purchasers for the Retention Securities, and does
not have power to require that any Retention Securities be transferred to it or to its order
as referred to in the FATA.
2.3 Sale and Settlement Date
The Joint Lead Managers shall procure that the sale of the Sale Securities under clause
2.1 shall be effected:
(a) subject to clause 2.3(b), on the Trade Date (as specified in the Timetable in
Schedule 2), by way of one or more special crossings (in accordance with the
ASX Operating Rules) at the Sale Price, with settlement to follow on a T+2
basis in accordance with the ASX Settlement Operating Rules (Settlement
Date); and
(b) in respect of any Retention Securities, in accordance with clause 2.2.
Other than in respect of any Retention Securities, which will be dealt with in accordance
with clause 2.2, by no later than 9:30am on the Settlement Date (or such other time and
date as agreed between the Sellers and the Joint Lead Managers) the Sellers will deliver
their respective Sale Securities, or will instruct their custodians to deliver their respective
Sale Securities held by their custodians on their behalf, to the Joint Lead Managers or as
the Joint Lead Managers direct, against payment in accordance with clause 2.4.
2.4 Payment for Sale Securities
Subject to clause 8, by 4.00pm on the Settlement Date, the Joint Lead Managers shall, in
their JLM Proportions, arrange for the payment to each Seller of an amount equal to:
(a) the Sale Price multiplied by the number of Sale Securities sold by the relevant
Seller under clause 2.1(a); and
(b) the Sale Price multiplied by the number of Balance Securities sold by the
relevant Seller under clause 2.1(b) or retained by the relevant Seller under
clause 2.2(a),
less any fees payable under clause 3 by transfer to such bank account(s) as may be
notified by the Sellers for value (in cleared funds) against delivery of the Sale Securities
(excluding the Retention Securities, if any).
2.5 Timetable
The Joint Lead Managers must conduct the Sale in accordance with the Timetable set
out in Schedule 2 (unless the Sellers consent in writing to a variation).
2.6 Account Opening
On or before the Trade Date, the Joint Lead Managers or their nominated Affiliate(s) will
(where relevant) open an account in the name of each Seller in accordance with their
usual practice, and do all such things necessary to enable them to act as Joint Lead
Managers to sell the Sale Securities in accordance with this agreement.
2.7 Manner of Sale
(a) The Joint Lead Managers will conduct the Sale by way of an offer only to
persons that the Joint Lead Managers reasonably believe are persons:
(1) if in Australia, who do not need disclosure under Part 6D.2 or Part 7.9
of the Corporations Act; and
(2) if outside Australia, to whom offers for sale of securities may lawfully
be made without requiring the preparation, delivery, lodgement or
filing of any prospectus or other disclosure document or any other
lodgement, registration or filing with, or approval by, a government
agency (other than any such requirement with which the Sellers, in
their sole and absolute discretion, are willing to comply).
(b) Without limiting clause 2.7(a), the Sale Securities shall only be offered and sold
to persons that the Joint Lead Managers reasonably believe are persons:
(1) that are not in the United States in "offshore transactions" (as defined
in Rule 902(h) under the U.S. Securities Act of 1933 (U.S. Securities
Act)) in reliance on Regulation S under the U.S. Securities Act
(Regulation S); or
(2) that are either:
(A) in the United States and are qualified institutional buyers
(QIBs), as defined in Rule 144A under the U.S. Securities
Act, in transactions exempt from the registration
requirements of the U.S. Securities Act pursuant to Rule
144A thereunder; or
(B) dealers or other professional fiduciaries organised,
incorporated or (if an individual) resident in the United States
that are acting for an account (other than an estate or trust)
held for the benefit or account of persons that are not U.S.
Persons (as defined in Rule 902(k) under the U.S Securities
Act), for which they have and are exercising investment
discretion, within the meaning of Rule 902(k)(2)(i) of
Regulation S (Eligible U.S. Fund Managers), in reliance on
Regulation S.
(c) The Joint Lead Managers agree that they will only sell the Sale Securities to
persons specified in the foregoing provisions of this clause 2.7 that confirm
(either through deemed representations and warranties or through
representations and warranties in a confirmation letter executed on or prior to
the Settlement Date) amongst other things:
(1) their status as a person who meets the requirements of the foregoing
provisions of this clause 2.7; and
(2) their compliance with all relevant laws and regulations in respect of
the Sale (including the takeover and insider trading provisions of the
Corporations Act and the FATA).
3 Fees and costs
(a) In consideration of performing their obligations under this agreement the Joint
Lead Managers shall be entitled to such fees, if any, as the parties agree.
(b) The parties will each bear their own legal costs (if any) and all other out-of-
pocket expenses (if any) in connection with this agreement and the transactions
contemplated by it.
4 Representations and Warranties
4.1 Representations and warranties by the Sellers
As at the date of this agreement and on each day until and including the Settlement Date,
each Seller severally represents and warrants to the Joint Lead Managers that each of
the following statements is true, accurate and not misleading with respect to itself only:
(a) (body corporate) it is a body corporate validly existing and duly established
and duly incorporated under the laws of its place of incorporation;
(b) (capacity) it has full legal capacity and power to enter into this agreement and
to carry out the transactions that this agreement contemplates;
(c) (authority) it has taken, or will have taken by the time required, all corporate
action that is necessary to authorise its entry into this agreement and its
carrying out of the transactions that this agreement contemplates;
(d) (agreement effective) this agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms;
(e) (control) it does not control the Company within the meaning given to that term
in section 50AA of the Corporations Act;
(f) (ownership, encumbrances) it is the registered holder and sole legal owner of
the Sale Securities to be sold by it as set out in Schedule 1, and will transfer the
full legal and beneficial ownership of those Sale Securities free and clear of all
liens, charges, security interests, claims, equities and pre-emptive rights,
subject to registration of the transferee(s) in the register of shareholders of the
Company;
(g) (Sale Securities) following sale by it, the Sale Securities to be sold by it as set
out in Schedule 1 will rank equally in all respects with all other outstanding
ordinary shares of the Company, including as to their entitlement to dividends;
(h) (information) to the best of its knowledge after due and proper enquiry, all
information provided by it to the Joint Lead Managers in relation to the Sale, the
Sale Securities to be sold by it as set out in Schedule 1 and the Company is
true and correct in all material respects and not misleading or deceptive in any
material respect whether by omission or otherwise;
(i) (no inside information) at the time of its execution of this agreement, other
than information relating to the Sale, it is not in possession of any non-public
information or information which is not generally available which, if it were
generally available, a reasonable person would expect to have a material effect
on the price or value of the Sale Securities or other securities in the Company
and the sale of the Sale Securities to be sold by it as set out in Schedule 1 will
not constitute a violation by it of Division 3 of Part 7.10 of the Corporations Act;
(j) (power to sell) it has the corporate authority and power to sell the Sale
Securities to be sold by it as set out in Schedule 1 under this agreement and no
person has a conflicting right, whether contingent or otherwise, to purchase or
to be offered for purchase the Sale Securities;
(k) (breach of law) it will perform its obligations under this agreement so as to
comply with all applicable laws in Australia, including in particular the
Corporations Act and the FATA;
(l) (wholesale client) it is a "wholesale client" within the meaning of section 761G
of the Corporations Act;
(m) (no general solicitation) none of it, any of its subsidiaries or any person acting
on behalf of any of them (other than the Joint Lead Managers or their Affiliates
or any person acting on behalf of any of them, as to whom it makes no
representation) has offered or sold, or will offer or sell, any of the Sale
Securities to be sold by that Seller as set out in Schedule 1 in the United States,
using any form of "general solicitation" or "general advertising" within the
meaning of Rule 502(c) under the U.S. Securities Act;
(n) (no directed selling efforts) with respect to those Sale Securities sold by it in
reliance on Regulation S, none of it, any of its subsidiaries, or any person acting
on behalf of any of them (other than the Joint Lead Managers or their Affiliates
or any person acting on behalf of any of them, as to whom it makes no
representation) has engaged or will engage in any "directed selling efforts" (as
that term is defined in Rule 902(c) under the U.S. Securities Act);
(o) (foreign private issuer and no substantial market interest) to the knowledge
of the Seller, the Company is a 'foreign private issuer' as defined in Rule 405
under the U.S. Securities Act and there is no 'substantial U.S. market interest'
(as defined in Rule 902(j) under the U.S. Securities Act) in the Sale Securities to
be sold by that Seller as set out in Schedule 1 or any security of the same class
or series as those Sale Securities;
(p) (no integrated offers) neither it nor any of its subsidiaries, nor any person
acting on behalf of any of them (other than the Joint Lead Managers or their
Affiliates or any person acting on behalf of any of them, as to whom the Seller
makes no representation), has offered or sold, and they will not offer or sell, in
the United States any security that could be integrated with the sale of the Sale
Securities to be sold by that Seller as set out in Schedule 1 in a manner that
would require the offer and sale of those Sale Securities to be registered under
the US Securities Act;
(q) (Rule 144A eligibility) to the knowledge of the Seller, the Sale Securities to be
sold by it as set out in Schedule 1 are eligible for resale pursuant to Rule 144A
and are not of the same class as securities listed on a national securities
exchange registered under Section 6 of the US Securities Exchange Act of
1934 (the Exchange Act) or quoted in a US automated interdealer quotation
system;
(r) (Rule 144A information) to the knowledge of the Seller, the Company is
exempt from reporting under Section 13 or 15(d) of the Exchange Act pursuant
to Rule 12g3-2(b);
(s) (not an investment company) to the knowledge of the Seller, the Company is
not registered, nor required to register, as an "investment company" under the
US Investment Company Act of 1940;
(t) (no stabilisation or manipulation) neither it nor any of its subsidiaries has
taken or will take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in the stabilisation or manipulation of
the price of the Sale Securities in violation of any applicable law;
(u) (no registration required) subject to compliance by the Joint Lead Managers
with their obligations under clause 4.2 of this agreement, it is not necessary to
register the offer and sale of the Sale Securities to be sold by it as set out in
Schedule 1 to the Joint Lead Managers or investors or the initial resale to
investors by the Joint Lead Managers in the manner contemplated by this
agreement under the U.S. Securities Act, it being understood that it makes no
representation or warranty about any subsequent resale of those Sale
Securities;
(v) (no bribery) neither it nor any of its subsidiaries nor, to the best of its
knowledge, any director, officer, agent or employee of it or of any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made or
taken an act in furtherance of an offer, promise or authorisation of any direct or
indirect unlawful payment to any foreign or domestic government or regulatory
official or employee, or of a public international organisation, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office, from corporate
funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or regulation implementing the OECD
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, or committed an offence under the Bribery Act 2010 of
the United Kingdom or United States Foreign Corrupt Practices Act of 1977, or
any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered,
agreed, requested or taken an act in furtherance of any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment, which, in each of (i)
through and including (iv), relate to the Sale;
(w) (OFAC) neither it nor any of its subsidiaries nor, to the best of its knowledge,
any director, officer, agent or employee of it or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury (OFAC) or any similar
Australian sanctions administered by the Commonwealth of Australia, or any
sanctions administered by the United Nations Security Council, the European
Union or any of its Member States, His Majesty's Treasury, the Swiss State
Secretariat for Economic Affairs, or other relevant sanctions authority
(collectively, Sanctions), including those located, organised or resident in a
country or territory that is the subject of Sanctions; and it will not directly or
indirectly use the proceeds of the offering of the Sale Securities to be sold by it
as set out in Schedule 1 or lend, contribute or otherwise make available these
proceeds to any subsidiary, joint venture partner or other person or entity:
(1) to fund or facilitate any activities of or business with any person that,
at the time of such funding or facilitation, is the subject or the target of
Sanctions; or
(2) in any other manner that will result in a violation by any person
(including any person participating in the Sale, whether as
underwriter, adviser, investor or otherwise) of Sanctions; and
(x) (anti-money laundering) the operations of the Seller and its subsidiaries are
and have been conducted in all material respects the in compliance with
applicable financial recordkeeping and reporting requirements of the Anti-
Money Laundering and Counter Terrorism Financing Act 2006 (Cth) and the
Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth)
the U.S. Currency and Foreign Transactions Reporting Act of 1970, as
amended, and applicable money laundering statutes of such jurisdictions in
which the Seller operates or transacts business, and the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any Governmental Authority (collectively, the
Money Laundering Laws) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Seller or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the relevant Seller, threatened, which, if
determined adversely to the relevant Seller, would have a material adverse
effect on the relevant Seller or the Sale of the Sale Securities to be sold by it as
set out in Schedule 1.
4.2 Representations and warranties of the Joint Lead Managers
As at the date of this agreement and on each day until and including the Settlement Date,
each Joint Lead Manager represents and warrants to each Seller that each of the
following statements is correct:
(a) (body corporate) it is a body corporate validly existing and duly established
and duly incorporated under the laws of its place of incorporation;
(b) (capacity) it has full legal capacity and power to enter into this agreement and
to carry out the transactions that this agreement contemplates;
(c) (authority) it has taken, or will have taken by the time required, all corporate
action that is necessary or desirable to authorise its entry into this agreement
and its carrying out of the transactions that this agreement contemplates;
(d) (licences) it holds all licences, permits and authorities necessary for it to fulfil its
obligations under this agreement and has complied with all the terms and
conditions of the same;
(e) (agreement effective) this agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms;
(f) (no registration) it acknowledges that the offer and sale of the Sale Securities
have not been and will not be registered under the U.S. Securities Act and may
not be offered or sold in the United States or to, or for the account or benefit of,
persons in the United States, except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the U.S. Securities
Act;
(g) (no directed selling efforts) with respect to those Sale Securities sold in
reliance on Regulation S, none of it, its Affiliates nor any person acting on
behalf of any of them has engaged or will engage in any "directed selling
efforts" (as that term is defined in Rule 902(c) under the U.S. Securities Act);
(h) (no general solicitation) none of it, any of its Affiliates or any person acting on
behalf of any of them has offered or sold, or will offer or sell, any of the Sale
Securities in the United States, using any form of "general solicitation" or
"general advertising" within the meaning of Rule 502(c) under the U.S.
Securities Act;
(i) (no stabilisation or manipulation) neither it nor any of its Affiliates has taken
or will take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in the stabilisation or manipulation of
the price of the Sale Securities in violation of any applicable law; and
(j) (US selling restrictions) it, its Affiliates and any person acting on behalf of any
of them has offered and sold the Sale Securities, and will offer and sell the Sale
Securities:
(1) in the United States, only to persons whom it reasonably believes are
(A) QIBs in transactions exempt from the registration requirements of
the U.S Securities Act pursuant to Rule 144A under the US Securities
Act, or (B) Eligible US Fund Managers in reliance on Regulation S;
and
(2) to persons that are not in the United States, in "offshore transactions"
(as defined in Rule 902(h) under the US Securities Act) in accordance
with Regulation S.
4.3 Non-resident CGT
(a) Each Seller severally warrants and declares that as at the date of this
agreement:
(1) it is an Australian resident for income tax purposes; or
(2) the Sale Securities to be sold by it as set out in Schedule 1 are not
indirect Australian real property interests as defined in section 855-25
of the Income Tax Assessment Act 1997 (Cth).
(b) Without limiting clause 4.3(a), Apollo warrants and represents in favour of each
Joint Lead Manager that no Australian capital gains tax is payable on the sale of
the Sale Securities to be sold by it as set out in Schedule 1.
(c) Each Joint Lead Manager acknowledges that:
(1) the warranty and declaration given by each Seller under clause 4.3(a)
represents a declaration for the purposes of section 14-210(3) of
Schedule 1 to the Taxation Administration Act 1953 (Cth) (TAA) given
by each Seller to the Lead Manager;
(2) the Joint Lead Manager does not know that the declaration is false;
and
(3) because of the declaration, and the representation and warranty in
clause 4.3(b), the Joint Lead Manager will not:
(A) withhold any amount under Subdivision 14-D of Schedule 1
to the TAA from any amount payable under this agreement
(including without limitation clause 2.4 hereof); or
(B) pay any amount under Subdivision 14-D of Schedule 1 to
the TAA to the Commissioner of Taxation, in connection with
the transactions contemplated by this agreement.
(d) If any payment is required to be made to a Seller under this agreement later
than the date six months after the date of this agreement, that Seller must
deliver to the relevant Joint Lead Manager(s), at or before the time of that
payment, a further declaration in accordance with clause 4.3(a).
4.4 Reliance
Each party giving a representation, warranty, declaration or acknowledgement
acknowledges that the other parties have relied on the above representations, warranties,
declarations and acknowledgements in entering into this agreement and will continue to
rely on these representations, warranties, declarations and acknowledgements in
performing their obligations under this agreement. The above representations,
warranties, declarations and acknowledgements continue in full force and effect
notwithstanding completion of this agreement.
4.5 Notification
Each party agrees that it will tell the other parties immediately upon becoming aware of
any of the following occurring prior to the completion of the sale of the Sale Securities:
(a) any change materially affecting any of the foregoing representations and
warranties; or
(b) any of the foregoing representations or warranties becoming materially untrue
or materially incorrect.
4.6 Disclosure to potential purchasers
The Sellers authorise the Joint Lead Managers to notify potential purchasers of the
representations and warranties contained in clause 4.1, and also authorise the Joint Lead
Managers to disclose the identity of the Sellers to potential purchasers, in each case,
where such disclosure is reasonably necessary for the Joint Lead Managers to fulfil their
obligations under this agreement.
5 Moratorium
(a) Each Seller represents and warrants that it will not, unless otherwise waived by
the Joint Lead Managers in writing, from the date of this agreement until
12.01am on 18 November 2023 (Escrow Period), Deal in all or any of the fully
paid ordinary shares held by it in the Company (Remaining Securities) at the
time of settlement of the Sale of the Sale Securities pursuant to this agreement,
excluding:
(1) transactions in order to satisfy demand from eligible shareholders
under a Company initiated dividend or distribution reinvestment plan;
(2) a repurchase (whether by buy-back, reduction of capital or other
means) of Remaining Securities by the Company;
(3) any acceptance by a Seller of a takeover offer for the Company in
accordance with Chapter 6 of the Corporations Act or transfer
pursuant to a scheme of arrangement under Part 5.1 of the
Corporations Act;
(4) a sale, transfer or disposal to a third party where it is a condition of the
sale that the third party announce an intention to acquire, or propose a
transaction to acquire, greater than 50% of the ordinary shares of the
Company;
(5) the sale of any Retention Securities in accordance with the terms of
this agreement;
(6) an encumbrance or transfer of any (or all) of its Remaining Securities
(as relevant) to a bona fide third party financial institution (Financial
Institution) as security for a loan, hedge or other financial
accommodation provided that such agreement with a Financial
Institution must provide that the Remaining Securities are to remain in
escrow and subject to the terms of this agreement as if the Financial
Institution were a party to this deed; and
(7) a sale, transfer or disposal to an Affiliate of the Seller that is subject to
a representation and warranty on substantially the same terms as this
clause 5 in respect of the Remaining Securities sold, transferred or
disposed. For the avoidance of doubt, any such representation and
warranty will be in respect of the Escrow Period only.
(b) Each party to this agreement acknowledges that the representation and
warranty in clause 5(a) is not intended to and does not give the Joint Lead
Managers any power to dispose of, or control the disposal of, the Remaining
Securities and a breach of the representation and warranty will only give rise to
a right to damages and the parties acknowledge that, in such circumstances,
damages are an adequate remedy for a breach of the representation and
warranty.
(c) Each party to this agreement acknowledges that the representation and
warranty in clause 5(a) has been provided to only address the financial
consequences of each Seller Dealing with, any Remaining Securities held by it.
Each party to this agreement acknowledges that the Joint Lead Managers are
not entitled to a remedy of specific performance for a breach of the
representation and warranty in clause 5(a).
(d) For the purposes of this clause 5, Deal in respect of the Remaining Securities
means:
(1) sell, assign, transfer or otherwise dispose of;
(2) agree to offer to sell, assign, transfer or otherwise dispose of;
(3) enter into any option which, if exercised (whether such exercise is
subject to conditions or otherwise), enables or requires a Seller to sell,
assign, transfer or otherwise dispose of; or
(4) decrease or agree to decrease an economic interest in,
the Remaining Securities.
(e) The Sellers agree with one another that the reference to “5%” in clause 6(c) of
the Voluntary Escrow Deed between themselves and others dated 26 October
2021 (as amended on 15 November 2021) is on and from the date of this
agreement to be read as “3%”.
6 Indemnity
(a) Each Seller agrees with each Joint Lead Manager that it will keep the Joint
Lead Manager and its Related Bodies Corporate and Affiliates, and their
respective directors, officers and employees (together that Joint Lead
Manager’s Indemnified Parties) indemnified against any reasonable losses,
damages, liabilities, costs, claims, actions and demands (including any
reasonable expenses arising in connection therewith) (Losses) to the extent
that such Losses are incurred as a result of a breach of this agreement by that
Seller, including any breach of any of the above representations and warranties
or undertakings given by it.
(b) The indemnity in clause 6(a) does not extend to and is not to taken as an
indemnity against any Losses of an Indemnified Party to the extent any Losses
are finally judicially determined to:
(1) have resulted from any fraud, wilful default or gross negligence of the
Indemnified Party (or of the Joint Lead Manager associated with that
Indemnified Party or of any other Indemnified Party of that Joint Lead
Manager); or
(2) relate to any amount in respect of which the indemnity would be
illegal, void or unenforceable under any applicable law.
(c) Each Seller also agrees that no Indemnified Party will have any liability to a
Seller, any of its Affiliates or any of their respective directors, officers,
employees, advisers, representatives or agents of any of them or any of the
Sellers’ security holders or creditors for any Loss suffered by any of them in
relation to any event to which indemnity applies, except that this release does
not apply to the extent that any Losses are finally judicially determined to have
resulted from any fraud, wilful default or gross negligence of the Indemnified
Party (or of the Joint Lead Manager associated with that Indemnified Party or of
any other Indemnified Party of that Joint Lead Manager).
(d) Each Seller and each Indemnified Party must not settle any action, demand or
claim to which the Indemnity in clause 6(a) relates without the prior written
consent of the relevant Seller or the relevant Joint Lead Manager, as applicable,
such consent not to be unreasonably withheld.
(e) Each Joint Lead Manager shall not and shall procure that each of its
Indemnified Parties shall not make any admission of liability or settlement of any
proceedings, action, demand or claim in respect of which the Indemnity in
clause 6(a) may apply, without the prior written consent of the relevant Seller or
Sellers (such consent not to be unreasonably withheld or delayed). The relevant
Seller or Sellers shall not make any admission of liability or settlement of any
proceedings, action, demand or claim in respect of which the indemnity in
clause 6(a) may apply, without the prior written consent of the relevant Joint
Lead Manager (such consent not to be unreasonably withheld or delayed).
(f) The indemnity in clause 6(a) and the release in clause 6(c) are continuing
obligations, separate and independent from the other obligations of the parties
under this agreement and survive termination or completion of this agreement
for 24 months after the expiry of the Risk Period. It is not necessary for a Joint
Lead Manager to incur expense or make payment before enforcing that
indemnity.
(g) If a Joint Lead Manager becomes aware of any suit, action, proceedings, claim
or demand in respect of which an Indemnified Party wishes to claim for
indemnification under the indemnity contained in this clause 6, the Joint Lead
Manager must promptly notify the relevant Seller or Sellers of the substance of
that matter and co-operate with the relevant Seller or Sellers and act reasonably
in relation to the defence thereof.
(h) The indemnity in clause 6(a) is granted to each Joint Lead Manager both for
itself and on behalf of its Indemnified Parties.
7 Announcements
(a) The Sellers and the Joint Lead Managers will consult each other in respect of
any material public releases by any of them concerning the sale of the Sale
Securities except:
(1) where disclosure is required or requested by applicable law, a legal or
regulatory authority or the ASX Listing Rules;
(2) disclosure is made to an adviser or to a person who must know for the
purposes of this agreement, on the basis that the adviser or person
keeps the information confidential; and
(3) to a person to the extent reasonably necessary in connection with any
actual or potential claim or judicial or administrative process involving
that party in relation to the Sale.
(b) The prior written consent of the Sellers must be obtained prior to a Joint Lead
Manager making any release or announcement or engaging in publicity in
relation to the Sale and such release, announcement or engagement must be in
compliance with all applicable laws, including the securities laws of Australia
and any other applicable jurisdiction.
8 Confidentiality
Each party agrees to keep the terms and subject matter of this agreement and any
ancillary arrangements confidential, except:
(a) where such terms and subject matter become part of the public domain other
than as a result of a breach by the relevant party of this clause 8;
(b) where disclosure is required by applicable law, a legal or regulatory authority or
the ASX Listing Rules;
(c) where disclosure is made to an Affiliate of the party, or an officer, employee,
agent, contractor or adviser of the party or Affiliate of the party
(Representative), or to any person who must have access to the information,
on the basis that the Affiliate, Representative or other person keeps the
information confidential; and
(d) where disclosure is reasonably necessary in connection with any actual or
potential claim or investigation or judicial or administrative process involving that
party in relation to the Sale.
9 Event of termination
9.1 Right of termination.
If, at any time during the Risk Period, any of the following events occur, then a Joint Lead
Manager may at any time before the expiry of the Risk Period terminate this agreement,
without cost or liability to itself, by giving written notice to the Sellers (copied it to the other
Joint Lead Managers), specifying the relevant event:
(a) (ASX actions) ASX does any of the following:
(1) announces that the Company will be removed from the official list of
ASX or securities in the same class as the Sale Securities will be
suspended from quotation;
(2) removes the Company from the official list of ASX; or
(3) suspends the trading of same class of securities as the Sale
Securities for any period of time;
(b) (ASIC inquiry into Sale) ASIC issues or threatens to issue proceedings in
relation to the Sale or commences, or threatens to commence any inquiry in
relation to the Sale; or
(c) (breach) a Seller is in default of any of the terms and conditions of this
agreement or breaches any representation and warranty or undertaking given
or made by it under this agreement; or
(d) (banking moratorium) a general moratorium on commercial banking activities
in Australia, the United States, Singapore, Hong Kong, the United Kingdom or
the European Union is declared by the relevant central banking authority in any
of those countries, or there is a material disruption in commercial banking or
security settlement or clearance services in any of those countries.
9.2 Materiality
Neither of the events listed in clauses 9.1(c) and 9.1(d) entitles a Joint Lead Manager to
exercise its termination rights unless, in the bona fide and reasonable opinion of the Joint
Lead Manager, it:
(a) has, or would reasonably be expected to have, a material adverse effect on:
(1) the willingness of persons to purchase the Sale Securities; or
(2) the price at which ordinary shares in the Company are sold on the
ASX; or
(b) would reasonably be expected to give rise to a liability of the Lead Manager
under the Corporations Act or any other applicable law.
9.3 Termination by Joint Lead Managers
If in accordance with this clause 9, a Joint Lead Manager (the Terminating JLM)
terminates its obligations under this agreement, the other Joint Lead Manager (the
Remaining JLM) may elect by giving a notice in writing to the all other parties, by the end
of the Business Day after the Remaining JLM receives notice from the Terminating JLM
of its termination (or within such other period as the Sellers and the Remaining JLM may
agree), to:
(a) also terminate its obligations under this agreement; or
(b) assume the obligations of the Terminating JLM under this agreement.
The exercise by the Terminating JLM of its right to terminate does not automatically
terminate the obligations of the Remaining JLM, except that if the Remaining JLM fails to
give a notice under this clause 9.3 within the period specified, it shall be treated as having
also terminated its obligations under this agreement (unless the Sellers and the
Remaining JLM agree otherwise).
If the Remaining JLM gives a notice under this clause 9.3 that it or they will assume the
obligations of the Terminating JLM under this agreement, then the JLM Proportions of the
Remaining JLM will be adjusted accordingly (such that its JLM Proportion will become
100%) and in addition to the fees to which it is entitled under clause 3, it will also be
entitled to the fees that would have been payable to the Terminating JLM under clause 3
if it had not terminated this agreement.
9.4 Termination by the Sellers
If, at any time during the Risk Period, a Joint Lead Manager or any of its Affiliates is in
material default of any provision of this agreement or materially breaches any
representation, warranty or undertaking given or made by it under this agreement, the
Sellers may at any time before expiry of the Risk Period by giving written notice to the
relevant Joint Lead Manager (copied to the other Joint Lead Manager) immediately
terminate this agreement in its entirety with respect to that Joint Lead Manager without
cost or liability to the Sellers, including, for the avoidance of doubt, without obligation to
pay any fees to the relevant Joint Lead Manager (and the provisions of clause 9.3 above
shall apply, mutatis mutandis, to the other Joint Lead Manager, as though it were a
Remaining Joint Lead Manager as referred to in that clause).
9.5 Effect of termination
If a Joint Lead Manager or the Sellers terminate in accordance with this clause 9:
(a) the respective obligations of the relevant parties under this agreement end
(subject to the provisions of clauses 9.3 and 9.4);
(b) all respective entitlements of:
(1) the parties under this agreement in respect of the period prior to
termination; and
(2) the Joint Lead Managers and the Indemnified Parties to be
indemnified under clause 6,
survive; and
(c) the relevant parties will be discharged from their respective obligations under
this agreement (subject to the provisions of clauses 9.3 and 9.4), but the
termination of this agreement will not limit or prevent the exercise of any other
rights and remedies which the parties may otherwise respectively have under
this agreement.
10 Miscellaneous
10.1 Entire agreement
This agreement constitutes the entire agreement of the parties about its subject matter
and supersedes all previous agreements, understandings and negotiations on that
matter.
10.2 Governing law
This agreement is governed by the laws of New South Wales, Australia. Each party
submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South
Wales, and waives any right to claim that those courts are an inconvenient forum.
10.3 Assignment and transfer
No party may assign or otherwise deal with its rights or obligations under this agreement
without the prior written consent of the other parties.
For the avoidance of doubt, references to any party to this agreement includes references
to its respective successors and permitted assigns.
10.4 Notices
Any notice, approval, consent, agreement, waiver or other communication in connection
with this agreement must be in writing.
10.5 Definitions
In this agreement the term:
(a) Affiliate of any person means any other person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such person; control (including the terms controlled by
and under common control with) means the possession, direct or indirect, of
the power to direct or cause the direction of the management, policies or
activities of a person, whether through the ownership of securities by contract or
agency or otherwise and the term “person” is deemed to include a partnership
and includes any person which is an “Affiliate” within the meaning of Rule 405
under the U.S. Securities Act of 1933, as amended (the U.S. Securities Act);
(b) ASIC means the Australian Securities and Investments Commission.
(c) ASX means ASX Limited (ABN 98 008 624 691) or the Australian Securities
Exchange, as appropriate.
(d) ASX Listing Rules mean the listing rules of ASX, as amended from time to
time.
(e) Business Day means a day on which:
(1) ASX is open for trading in securities; and
(2) banks are open for general banking business in Sydney, Australia.
(f) JLM Proportion, in respect of each Joint Lead Manager, means one half
(subject to the provisions of clauses 9.3 and 9.4).
(g) Respective Proportion, in respect of a Seller, means the number of Sale
Securities to be sold by that Seller divided by the total number of Sale
Securities, as set out in Schedule 1.
(h) Risk Period means the period commencing on the execution of this agreement
and ending at 10:00am on the Trade Date (as defined in the Timetable).
10.6 Interpretation
In this agreement:
(a) headings and sub-headings are for convenience only and do not affect
interpretation;
(b) a reference to legislation or to a provision of legislation includes a modification
or re-enactment of it, a legislative provision substituted for it and a regulation or
statutory instrument issued under it;
(c) a reference to “dollars” and “$” is to Australian currency;
(d) a reference to a right or obligation of any 2 or more persons confers that right,
or imposes that obligation, severally and not jointly and severally;
(e) where a liability arising under or in connection with this agreement is expressed
to be made or given by a party, then that liability is imposed severally, and not
jointly and severally, on that party; and
(f) all references to time are to Sydney, New South Wales, Australia time.
10.7 Severability
Any provision of this agreement which is prohibited or unenforceable in any jurisdiction
will be ineffective as to that jurisdiction to the extent of the prohibition or unenforceability.
That will not invalidate the remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
10.8 Waiver and variation
A provision of or right vested under this agreement may not be:
(a) waived except in writing signed by the party granting the waiver, or
(b) varied except in writing signed by the parties.
If a party does not exercise a right or remedy (including a right to waive) fully or at a given
time, the party may still exercise it later.
10.9 No merger
The rights and obligations of the parties will not merge on the termination or expiration of
this agreement. Any provision of this agreement remaining to be performed or observed
by a party, or having effect after the termination of this agreement for whatever reason
remains in full force and effect and is binding on that party.
10.10 Counterparts
This agreement may be executed in any number of counterparts. All counterparts
together will be taken to constitute one agreement.
10.11 Acknowledgement
The Sellers acknowledge that:
(a) a Joint Lead Manager is not obliged to disclose to the Sellers or utilise for the
benefit of the Sellers, any non-public information which the Joint Lead Manager
obtains in the normal course of their business where such disclosure or use
would result in a breach of any obligation of confidentiality or any internal
Chinese wall policies of the Joint Lead Manager;
(b) without prejudice to any claim the Sellers may have against the Joint Lead
Managers, no proceedings may be taken against any director, officer, employee
or agent of a Joint Lead Manager in respect of any claim that the Sellers may
have against the Joint Lead Manager;
(c) it is contracting with each Joint Lead Manager on an arm's length basis to
provide the services described in this agreement and the Joint Lead Manager
has not and is not assuming any duties or obligations (fiduciary or otherwise) in
respect of it other than those expressly set out in this agreement;
(d) in performing this agreement, each Joint Lead Manager will rely on the
information provided to it by or on behalf of the Sellers and information in the
public domain without having independently verified the same, and the Joint
Lead Manager does not assume any responsibility for the accuracy or
completeness of such information for which, in the case of information provided
to the Joint Lead Manager by or on behalf of a Seller, the relevant Seller will be
solely responsible; and
(e) each Joint Lead Manager (together with its Related Bodies Corporate and
Affiliates) ( together a Joint Lead Manager Group) comprises a full service
securities firm engaged in securities, commodities and derivatives trading,
foreign exchange and other brokerage activities, and principal investing as well
as providing investment, corporate and private banking, asset and investment
management, financing and financial advisory services and other commercial
services and products to a wide range of companies, governments and
individuals from which conflicting interests or duties, or a perception thereof,
may arise. Each Seller expressly acknowledges that, in the ordinary course of
business, each Joint Lead Manager and/or other members of its Joint Lead
Manager Group at any time may invest on a principal basis or on behalf of
customers or manage funds that invest, make or hold long or short positions,
finance positions or trade or otherwise effect transactions, for their own account
or the accounts of customers, in equity, debt or other securities or financial
instruments (including derivatives, bank loans or other obligations) of each
Seller, the Company or any other entity, and may be providing or arranging
financing and other financial services to companies that may be involved in any
proposed or competing transaction, in each case whose interests may conflict
with those of each Seller, and each Seller hereby consents to the each Joint
Lead Manager and/or other members of its Joint Lead Manager Group and it
and their employees and officers undertaking such activities (A) without regard
to the relationship with the Sellers established by this Agreement, and (B)
regardless of any conflict of interest (whether actual, perceived or potential) that
may arise as a result of such activity.
10.12 No requirement to disclose best execution
The parties agree that the Joint Lead Managers are not required to disclose to the Sellers
the matters referred to in subrules 3.10.1(1) and 3.10.1(2) of the ASIC Market Integrity
Rules (Securities Markets) 2017 (Cth).
10.13 Relationship between the Joint Lead Managers
(a) Unless otherwise expressly provided for in this agreement, all obligations and
liabilities of the Joint Lead Managers under this agreement are several and not
joint or joint and several.
(b) Each Joint Lead Manager holds and may exercise its rights, powers and
benefits under this agreement individually. Where the consent or approval of
the Joint Lead Managers is required under this agreement, that consent or
approval must be obtained from each of the Joint Lead Managers (other than
one whose obligations are terminated under clause 9).
(c) Nothing contained or implied in this agreement constitutes any of the Joint Lead
Managers as the partner, agent or representative of the other Joint Lead
Managers for any purpose or creates any partnership, agency or trust between
them.
(d) No Joint Lead Manager shall be liable for any Losses arising out of the actions
taken by or advice given by the other Joint Lead Manager. In addition, the
rights of a Joint Lead Manager and the Indemnified Parties associated with that
Joint Lead Manager under the indemnity in clause 6 will in no way be affected
by the actions taken or alleged to have been taken or advice given by the other
Joint Lead Managers or Indemnified Parties associated with those other Joint
Lead Managers.
(e) The Sellers consider that the nature and scope of the services sought by the
Sellers under this agreement reasonably require two joint lead managers and
underwriters, and the Joint Lead Managers are not in competition with each
other for the provision of the services to the Sellers under this agreement.
(f) The Sellers and the Joint Lead Managers agree and acknowledge that the
activities of the Joint Lead Managers pursuant to this agreement are undertaken
jointly and are for the purpose of and are reasonably necessary to implement
the Sale (including without limitation the pricing of the Sale and the marketing of
the Sale).
Yours sincerely
Signed for and on behalf of
J.P. Morgan Securities
Australia
Limited
by its duly authorised signatory
sign here
►
Signature of authorised signatory
print name
Jonas Troeber
Lachlan Collins
Signed for and on behalf of
Barrenjoey Markets Pty Limited
by its attorney under power of attorney
dated 28 April 2023, who has not notice of
revocation of that power of attorney
sign here
Signature of attorney
print name
Signed for and on behalf of
J.P. Morgan Securities Australia
Limited
by its duly authorised signatory
sign here
Signature of authorised signatory
print name
Signed for and on behalf of
CIMIC Group Investments No.3
Pty Limited (ACN 653 589 649) in
accordance with section 127 of the
Corporations Act 2001 (Cth) by:
sign heresign here
Signature of director Signature of director/secretary
print name print name
Signed sealed and delivered by
AIF VIII Singapore Pte Ltd
by
sign here
print name
in the presence of
sign here
Witness
print name
Signed for and on behalf of
Barrenjoey Markets Pty Limited
by its attorney under power of attorney
dated 28 April 2023
, who has not notice of
revocation of that power of attorney
sign here ►
Signature of attorney
print name
Signed for and on behalf of
J.P. Morgan Securities
Australia
Limited
by its duly authorised signatory
sign here ►
Signature of authorised signatory
print name
Signed for and on behalf of
CIMIC Group Investments No.3
Pty Limited (ACN 653 589 649)
in
accordance with section 127 of the
Corporations Act 2001 (Cth) by:
sign here ►
sign here ►
Signature of director Signature of director/secretary
print name print name
Signed sealed and delivered by
AIF VIII Singapore Pte Ltd
by
sign here ►
print name
Suzanne Helen Spells
in the presence of
sign here ►
Witness
print name
Cheah Guat Hoon
Schedule 1
Sale Securities
Seller Address Number of Sale
Securities
Respective
Proportion
CIMIC Group
Investments No.3 Pty
Limited
ACN 653 589 649
Level 25, 177 Pacific
Highway,
North Sydney NSW 2060
62,500,000 41.40625%
AIF VIII Singapore Pte
Ltd
AIF VIII Singapore Ltd
8 Marina Boulevard
#07-02 Marina Bay
Financial Centre
Singapore 018981
Singapore
88,443,396 58.59375%
Total 150,943,396
Schedule 2
Timetable
Key events Date
Books open 5:15pm, 1 September 2023
Books close 8:00pm, 1 September 2023
Trade Date (T) (Special crossing/s) 4 September 2023
Settlement Date (T + 2) 6 September 2023
109196495.2
CIMIC GROUP INVESTMENTS NO.3 PTY LIMITED
ACN 603 253 541
THIS IS ANNEXURE 2 OF 30 PAGES REFERRED TO IN FORM 604
print name Robert Cotterill capacity Director
sign here date / /
05
09
23
ANZ Tower 161 Castlereagh Street Sydney NSW 2000 Australia
GPO Box 4227 Sydney NSW 2001 Australia
T +61 2 9225 5000 F +61 2 9322 4000
herbertsmithfreehills.com DX 361 Sydney
Deed
Deed of Amendment and
Restatement – Voluntary
Escrow Deed
Ventia Services Group Limited
CIMIC Group Limited
AIF VIII Singapore Pte Ltd
AIF VIII Asia Intermediate, LLC
AIF VIII Asia-Pacific Investments Pte. Ltd.
AIF VIII Euro Holdings, L.P.
97012750
Amending deed page 2
Details
Date ►
Between the parties
Company Ventia Services Group Limited
ABN 53 603 253 541 of Level 8, 80 Pacific Highway, North Sydney
NSW 2060
Holders CIMIC Group Limited
ABN 57 004 482 982
of Level 25, 177 Pacific Highway, North Sydney NSW 2060, Australia
AIF VIII Singapore Pte Ltd
of Level 11, Suite 1, 61 Robinson, Robinson Road Singapore
068893, Singapore
Controllers AIF VIII Asia Intermediate, LLC
of c/o Apollo Management L.P., 9 West 57th Street, New York, New
York 10019 USA
AIF VIII Asia-Pacific Investments Pte. Ltd.
of Level 11, Suite 1, 61 Robinson, Robinson Road Singapore
068893, Singapore
AIF VIII Euro Holdings, L.P.
of c/o Apollo Management L.P., 9 West 57th Street, New York, New
York 10019 USA
Recitals 1 The parties entered into a voluntary escrow deed dated 26
October 2021 (Voluntary Escrow Deed).
2 The parties have agreed to amend and restate the terms of the
Voluntary Escrow Deed on the terms and conditions of this deed.
This deed witnesses as follows:
15 November 2021
1 Definitions, interpretation and deed components
97012750
Amending deed page 3
1 Definitions, interpretation and deed components
1.1 Definitions
Unless the context requires or the relevant term is defined in this deed, terms defined in
the Voluntary Escrow Deed, including as amended by way of this deed, have the same
meaning in this deed.
1.2 Interpretation
Clause 1 of the Voluntary Escrow Deed applies to this deed.
1.3 Deed components
This deed includes any schedule.
2 Amendment to the Voluntary Escrow Deed
2.1 Amendment
With effect on and from the date of this deed, the Voluntary Escrow Deed is amended
and restated as set out in the amended version attached as Annexure A.
2.2 References
On and from the date of this deed, any reference in any document (other than this deed)
to the Voluntary Escrow Deed is a reference to the Voluntary Escrow Deed as amended
under clause 2.1.
2.3 Amendments not to affect validity, rights, obligations
(a) Except as specifically amended by this deed, all terms and conditions of the
Voluntary Escrow Deed remain in full force and effect.
(b) This deed is intended only to vary the Voluntary Escrow Deed and not to
terminate, discharge, rescind or replace it.
(c) The amendments to the Voluntary Escrow Deed do not affect the validity or
enforceability of the Voluntary Escrow Deed.
(d) Nothing in this deed:
(1) prejudices or adversely affects any right, power, authority, discretion
or remedy which arose under or in connection with the Voluntary
Escrow Deed before the date of this deed; or
(2) discharges, releases or otherwise affects any liability or obligation
which arose under or in connection with the Voluntary Escrow Deed
before the date of this deed.
2.4 Confirmation
On and with effect from the date of this deed, each party is bound by the Voluntary
Escrow Deed as amended by this deed.
3 General
97012750
Amending deed page 4
2.5 Acknowledgement
Each party acknowledges that this deed is issued in accordance with the Voluntary
Escrow Deed.
3 General
3.1 Notices
Any notice or other communication including any request, demand, consent or approval,
to or by a party to this deed must be provided in accordance with the Voluntary Escrow
Deed.
3.2 Governing law and dispute resolution
The governing law and dispute resolution provision set forth in the Voluntary Escrow
Deed apply to this deed as if set out in full in this deed.
3.3 Further action to be taken at each party’s own expense
Each party must, at its own expense, do all things and execute all documents necessary
to give full effect to this deed and the transactions contemplated by it.
3.4 Counterparts
This deed may be executed in any number of counterparts which together will constitute
one instrument. A party may execute this deed by signing any counterpart.
3.5 Attorneys
Each of the attorneys executing this deed states that the attorney has no notice of the
revocation of the power of attorney appointing that attorney.
3.6 Deed is supplemental
This deed is supplemental to the Voluntary Escrow Deed.
Signing page
Executed as a deed
Company
Signed sealed and delivered by
Ventia Services Group Limited
by
sign here ►
sign here ►
Company Secretary/Director Director
print name print name
Holder
Signed sealed and delivered for and on behalf
of CIMIC Group Limited (ABN 57 004 482 982)
by its Attorneys under a Power of Attorney dated
20 July 2021 (and the Attorneys declare that the
Attorneys have not received any notice of the
revocation of such Power of Attorney) in the
presence of:
Signature of Attorney Signature of Attorney
Name of Attorney Name of Attorney
Signature of witness Signature of witness
Name of Witness in full Name of Witness in full
David Moffatt
Zoheb Razvi
Details
page 14
Holder
Signed sealed and delivered by
AIF VIII Singapore Pte Ltd
by its auth o rised rep resen tative
sign here ►
print name
Suzan n e Sp ells
in the presence of
sign here ►
Witn ess
print name
Controller
Signed sealed and delivered by
AIF VIII Asia Intermediate, LLC
By: AIF VIII Euro Ho ld in gs, L.P., its so le member
By: Ap o llo Ad viso rs VIII (EH), L.P., its Gen eral Partn er
By: Ap o llo Ad viso rs VIII (EH-GP), Ltd ., its Gen eral Partn er
sign here ►
print name
Joseph Glatt
in the presence of
sign here ►
Witn ess
print name
Henry Harrs
Details
page 15
Controller
Signed sealed and delivered by
AIF VIII Asia-Pacific Investments Pte. Ltd.
By its auth o rised rep resen tative
sign here ►
print name
Suzan n e Spells
in the presence of
sign here ►
Witn ess
print name
Controller
Signed sealed and delivered by
AIF VIII Euro Holdings, L.P.
By: Ap o llo Ad viso rs VIII (EH), L.P., its Gen eral Partn er
By: Ap o llo Ad viso rs VIII (EH-GP), Ltd ., its Gen eral Partn er
sign here ►
print name
Joseph Glatt
in the presence of
sign here ►
Witn ess
print name
Henry Harrs
3 General
97012750
Amending deed page 8
Annexure A
Amended and Restated Voluntary Escrow Deed
ANZ Tower 161 Castlereagh Street Sydney NSW 2000 Australia
GPO Box 4227 Sydney NSW 2001 Australia
T +61 2 9225 5000 F +61 2 9322 4000
herbertsmithfreehills.com DX 361 Sydney
Deed
Voluntary escrow deed
Each party specified in Item 1 of Schedule 1 (Holder)
Each party specified in Item 3 of Schedule 1
(Controller)
Ventia Services Group Limited
970127453
Contents 1
Contents
Table of contents
1 Definitions and interpretation 1
1.1 Definitions ................................................................................................................. 1
1.2 Interpretation ............................................................................................................. 4
1.3 Compliance with Listing Rules .................................................................................. 5
2 Escrow 5
2.1 Holder restrictions during Escrow Period ................................................................. 5
2.2 Controller restrictions during Escrow Period ............................................................ 5
2.3 Escrow restrictions .................................................................................................... 5
2.4 Exceptions ................................................................................................................ 6
2.5 Notice ........................................................................................................................ 6
3 Termination 7
4 Warranties and acknowledgment 7
4.1 Giving of warranties .................................................................................................. 7
4.2 Warranties ................................................................................................................. 7
4.3 Acknowledgment....................................................................................................... 8
4.4 Survival of representations and warranties .............................................................. 8
5 Consequences of breaching this deed 8
6 Sell down after the Escrow Period 9
7 Amendment 9
8 General 9
8.1 Governing law and jurisdiction .................................................................................. 9
8.2 Counterparts ............................................................................................................. 9
8.3 Further assurances ................................................................................................... 9
8.4 Notices .................................................................................................................... 10
8.5 Time of Essence ..................................................................................................... 10
Schedule 1 11
97012745
page 1
Voluntary escrow deed
Date ► 2021
Between the parties
Company
Ventia Services Group Limited
ABN 53 603 253 541 of Level 8, 80 Pacific Highway, North Sydney
NSW 2060
Attention: Company Secretary
Email address: Zoheb.Razvi@ventia.com
Holder
Each party identified in Item 1 of Schedule 1
Controller
Each party identified in Item 3 of Schedule 1 (if any)
Background
1 At the date of this agreement, the Company is a company whose
Shares are owned in equal shares by the two Holders.
2 One of the Holders, CIMIC, is listed on ASX and the other, Apollo,
is a special purpose vehicle held by an investment fund managed
by Affiliates of Apollo Global Management, Inc., a company listed
on the NYSE.
3 The Company, CIMIC and Apollo propose that the Company will
undertake the IPO and list on ASX, and that CIMIC and Apollo will
sell down part of their holdings in the Company as part of the IPO
(with Shares being sold to SaleCo (defined below) and on-sold by
it in the IPO, alongside issuance of Shares by the Company).
4 In order to ensure a successful IPO, and provide certainty to
incoming investors, the Company, CIMIC and Apollo propose to
co-ordinate aspects of the issue and sale of Shares in the IPO,
and, in the case of CIMIC and Apollo, aspects of their continued
ownership of Shares in the Company after the IPO, and the sale
of any such Shares after the IPO.
5 In particular, (1) incoming investors will require each of CIMIC and
Apollo to retain holdings of Shares after the IPO, and that these
holdings will be held by them as Restricted Shares for at least the
Escrow Period on the terms set out in this deed; and (2) CIMIC
and Apollo will require certainty that any future sell down of such
Restricted Shares following expiry of the Escrow Period will occur
1 Definitions and interpretation
97012745
page 2
in an orderly manner on the terms set out in this deed (and this
will also provide comfort to incoming investors).
6 The parties have entered into this deed to put in place appropriate
arrangements with respect to the foregoing, and consider that
these arrangements are reasonably necessary as part of their
joint endeavour in relation to the Company.
This deed witnesses as follows:
97012745
page 1
1 Definitions and interpretation
1.1 Definitions
The meanings of the terms used in this deed are set out below.
Term Meaning
Affiliate of a specified person, means a person:
• which, directly or indirectly, controls, or is controlled by, or is
under common control with, the specified person (where
“control” of a person has the meaning given in the Corporations
Act, and also includes possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of the person, whether through ownership of voting
securities or partnership interests, by contract or otherwise); or
• which is a related body corporate (as that term is defined in the
Corporations Act) of the specified person.
Affiliated Fund each corporation, trust, limited liability company, general or limited
partnership or other entity under common control with the Holder or
Controller or that receives investment advice from the investment
adviser to the Holder or Controller or any of their Affiliates or an
investment adviser Affiliated with such investment adviser.
Allotment Date the date the Shares are issued pursuant to the Prospectus.
ASIC the Australian Securities and Investments Commission.
ASX ASX Limited (ACN 008 624 691) or the market it operates, as the
context requires.
ASX Settlement ASX Settlement Pty Ltd (ABN 49 008 504 532).
Business Day a day on which banks are open for business in Sydney, New South
Wales other than a Saturday, Sunday or public holiday in Sydney,
New South Wales.
Control has the meaning given in the Corporations Act and also, in respect
of a specified person, includes possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of the person, whether through ownership of voting
1 Definitions and interpretation
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Term Meaning
securities or partnership interests, by contract or otherwise. In
addition:
• an entity will also be taken to Control another entity if the first
entity (or any of its Affiliates) manages the second entity; and
• if an entity Controls another entity and that second entity
Controls a third entity, the first entity will be taken to Control the
third entity.
Controller each party specified in Item 3 of Schedule 1 (if any).
Controller Interest the securities, substantial economic interest or other interests in the
Restricted Shares in which the Controller (if any) has a direct or
indirect interest and each intermediate entity through which that
interest occurs.
Corporations Act Corporations Act 2001 (Cth).
Dealing in respect of any Restricted Shares or Controller Interests (as
relevant), means to directly or indirectly:
1 sell, assign, transfer or otherwise Dispose of, or agree or offer to
sell, assign, transfer or otherwise Dispose of, that Restricted
Share or Controller Interest (as relevant) or any legal, beneficial
or economic interest in that Restricted Share or Controller
Interest (as relevant);
2 create, or agree or offer to create, any Security Interest in that
Restricted Share or Controller Interest (as relevant) or any legal,
beneficial or economic interest in that Restricted Share or
Controller Interest (as relevant);
3 enter into any option which, if exercised, enables or requires the
relevant security holder to sell, assign, transfer or otherwise
Dispose of that Restricted Share or Controller Interest (as
relevant); or
4 do, or omit to do, any act if the act or omission would have the
effect of transferring effective ownership or control of that
Restricted Share or Controller Interest (as relevant) or any legal,
beneficial or economic interest in that Restricted Share or
Controller Interest (as relevant).
Deal and Dealt each have a corresponding meaning.
Dispose has the meaning given to that term in the Listing Rules.
Escrow Period the period set out in Item 2 of Schedule 1.
1 Definitions and interpretation
97012745
page 3
Term Meaning
Government Agency any government (in any jurisdiction, whether federal, state, territorial
or local), or representative of a government (including any minister,
department, office, commission, delegate, instrumentality, agency,
board, authority or organisation of any government or in which any
government is interested) or any governmental, semi-governmental,
administrative, fiscal, regulatory, self-regulatory or judicial body,
department, commission, authority, tribunal, agency, competition
authority or entity in Australia or in any part of the world. It includes
without limitation, ASIC, any non-government regulatory authority
including the ASX and any other stock exchange.
Holder each party specified in Item 1 of Schedule 1.
Holding Lock has the meaning in Section 2 of the Settlement Operating Rules.
IPO or Offer the Company’s proposed initial public offering of Shares pursuant to
the Prospectus.
IPO Completion completion of the sale and issue of Shares to investors in the IPO
under the Prospectus.
Issuer Sponsored
Subregister
the part of the Company’s register for Shares that is administered by
the Company (and not ASX Settlement) and records uncertificated
holdings of Shares.
Listing Rules the listing rules of the ASX and any other rules of the ASX which are
applicable while the Company is admitted to the official list of the
ASX, each as amended or replaced from time to time, except to the
extent of any express written waiver by the ASX.
Prospectus means the prospectus to be issued by the Company and SaleCo
dated and lodged with ASIC on or about 26 October 2021.
Restricted Shares in respect of a Holder:
1 all of the Shares in the Company held by that Holder on the
Allotment Date, after completion of all transfers of Shares
occurring as part of IPO Completion (and also including, if
relevant, and from the time of such re-delivery, any Shares in the
Company re-delivered to that Holder under stock borrowing
arrangements entered into in connection with overallotment
arrangements relating to the IPO); and
2 any securities in the Company attaching to or arising out of those
Shares.
1 Definitions and interpretation
97012745
page 4
Term Meaning
Restriction Deeds this deed and any other deeds between the Company and
shareholders applying restrictions similar to those in this deed.
SaleCo Ventia SaleCo Limited ACN 654 078 878.
Security Interest an interest or power:
1 reserved in or over an interest in any securities including, but not
limited to, any retention of title;
2 created or otherwise arising in or over any interest in any
securities under a bill of sale, mortgage, charge, lien, pledge,
trust or power, and
3 any agreement to grant or create any interest or power referred
to in paragraphs (1) or (2) of this definition.
Settlement Operating
Rules
means the operating rules of ASX Settlement.
Share a fully paid ordinary share in the capital of the Company.
1.2 Interpretation
In this deed including the recitals unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) a reference to a party includes its successors, personal representatives and
transferees;
(c) words and expressions defined in the Listing Rules, and not in this deed, have
the meanings given to them in the Listing Rules;
(d) every warranty or agreement (expressed or implied) in which more than one
person is joined, binds them individually and any combination of them as a
group;
(e) references to "applicable law" include all laws and regulations of jurisdictions
applicable to the Company, or its related bodies corporate, as the case may be
(including the Corporations Act and any other laws and regulations of a
jurisdiction outside Australia), and rules, policies, official directives, orders or
requirements of any Government Agency, including the Listing Rules,
Settlement Operating Rules and the applicable listing requirements of the ASX,
except to the extent compliance is modified, waived or exempted in favour of a
person in the relevant circumstances; and
(f) the schedules form part of this deed.
2 Escrow
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1.3 Compliance with Listing Rules
For so long as the Company is listed on the official list of the ASX:
(a) notwithstanding anything contained in this deed, if the Listing Rules prohibit an
act being done, that act must not be done;
(b) nothing contained in this deed prevents an act being done that the Listing Rules
require to be done;
(c) if the Listing Rules require an act to be done or not to be done, authority is
given for that act to be done or not to be done (as the case may be);
(d) if the Listing Rules require this deed to contain a provision and it does not
contain such a provision, this deed is deemed to contain that provision;
(e) if the Listing Rules require this deed not to contain a provision and it contains
such a provision, this deed is deemed not to contain that provision; and
(f) if any provision of this deed is or becomes inconsistent with the Listing Rules,
this deed is deemed not to contain that provision to the extent of the
inconsistency.
2 Escrow
2.1 Holder restrictions during Escrow Period
Subject to clause 2.4, each Holder must not Deal in the Restricted Shares of that Holder
during the Escrow Period.
2.2 Controller restrictions during Escrow Period
During the Escrow Period (or for so long as a Holder holds Restricted Shares, if that is
shorter having regard to clause 2.4), the Controller of that Holder (as identified in Item 3
of Schedule 1) (if any) must not cease to Control that Holder.
2.3 Escrow restrictions
The parties acknowledge and agree that:
(a) each Holder’s Restricted Shares will be registered and held for that Holder on
the Issuer Sponsored Subregister;
(b) the Company will apply a Holding Lock to the Restricted Shares as soon as
practicable after registration of the Restricted Shares on the Issuer Sponsored
Subregister and each Holder hereby agrees to the application of the Holding
Lock to its Restricted Shares; and
(c) the Company will do all things necessary to ensure that the Holding Lock is
released:
(1) to the extent necessary to permit Disposals of Restricted Shares
permitted by this deed; and
(2) in full at the conclusion of the Escrow Period,
including notifying ASX that the Restricted Shares will be released from the
Holding Lock, in accordance with the timing requirements set out in Listing Rule
3.10A.
2 Escrow
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page 6
2.4 Exceptions
Notwithstanding any condition to the contrary in this deed, during the Escrow Period:
(a) A Holder may Deal in any of its Restricted Shares if the Dealing arises solely as
a result of either:
(1) the acceptance of a bona fide third party takeover bid made under
chapter 6 of the Corporations Act in respect of the Shares, provided
that the holders of at least half of the Shares that are not subject to
the Restriction Deeds, and to which the offers under the bid relate,
have accepted the bid; or
(2) the transfer or cancellation of the Shares in the Company as part of a
scheme of arrangement under Part 5.1 of the Corporations Act,
provided, in each case, that, if for any reason any or all Restricted Shares are
not transferred or cancelled in accordance with such a takeover bid or scheme
of arrangement, then each Holder agrees that the restrictions applying to its
Restricted Shares under this deed will continue to apply and without limiting the
foregoing, the Holding Lock will be reapplied to all Restricted Shares not so
transferred or cancelled.
(b) A Holder or Controller may Deal in any of its Restricted Shares or Controller
Interests (as relevant) if the Dealing arises solely as a result of a requirement of
applicable law (including an order of a court of competent jurisdiction).
(c) A Holder or Controller may encumber or transfer any (or all) of its Restricted
Shares or Controller Interests (as relevant) to a bona fide third party financial
institution (Financial Institution) as security for a loan, hedge or other financial
accommodation provided that any such agreement with a Financial Institution
must provide that the Restricted Shares or Controller Interests (as relevant) are
to remain in escrow and subject to the terms of this deed as if the Financial
Institution were a party to this deed.
(d) A Holder or Controller may participate in an:
(1) equal access share buyback;
(2) equal access capital return;
(3) equal access capital reduction,
in each case in respect of Restricted Shares or Controller Interests held by it.
(e) A Holder or Controller may transfer (in one or more transactions) any or all
Restricted Shares or Controller Interests (as relevant) to an Affiliate or an
Affiliated Fund of the Holder or Controller (as relevant) provided such Affiliate or
Affiliated Fund transferee agrees to be bound by the terms and conditions of
this deed by entering into such further agreements as the Company may
reasonably require.
(f) A Holder or Controller may transfer (in one or more transactions) any or all
Restricted Shares or Controller Interests (as relevant) as part of a pro rata
distribution to its limited partners, members or stockholders.
2.5 Notice
If a Holder or Controller becomes aware:
(a) that a Dealing in any Restricted Shares or Controller Interests has occurred, or
is likely to occur, during the Escrow Period; or
3 Termination
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page 7
(b) of any matter which is likely to give rise to a Dealing in any Restricted Shares or
Controller Interests during the Escrow Period,
it must notify the Company as soon as practicable after becoming aware of the actual or
potential Dealing or the matters giving rise to the actual or potential Dealing, providing full
details.
3 Termination
Subject to clause 4.4, this deed terminates if the Company is not admitted to the official
list of ASX by 31 December 2021.
4 Warranties and acknowledgment
4.1 Giving of warranties
Each Holder and Controller each gives the warranties and representations in clause 4.2
in favour of the Company as at:
(a) the date of this deed; and
(b) at all times until expiry of the Escrow Period.
4.2 Warranties
Each Holder and Controller jointly and severally represents and warrants that:
(a) it has full power and authority, without the consent of any other person, to enter
into and perform its obligations under this deed;
(b) it has taken all necessary action to authorise the execution, delivery and
performance of this deed in accordance with its terms;
(c) this deed constitutes legal, valid and binding obligations and, subject to any
necessary stamping and registration, is enforceable in accordance with its
terms;
(d) the execution, delivery and performance by it of this deed does not and will not
violate, breach or result in a contravention of:
(1) any applicable law, regulation or authorisation;
(2) its constitution or other constituent documents; or
(3) any agreement, undertaking, Security Interest or document which is
binding on it;
(e) other than acts permitted by clause 2.4 and acts relating to the stock borrowing
arrangements and overallotment arrangements relating to the IPO, prior to the
Escrow Period, it has not done, or omitted to do, any act which would result in it
Dealing in the relevant Holder’s Restricted Shares in a manner that would take
effect during the Escrow Period;
(f) other than Security Interest, interests or rights permitted by clause 2.4 and
rights and interests relating to the stock borrowing arrangements and
overallotment arrangements relating to the IPO, the relevant Holder’s Restricted
5 Consequences of breaching this deed
97012745
page 8
Shares are free from all Security Interests and other third party interests or
rights and will remain so during the Escrow Period;
(g) other than interests permitted by clause 2.4 and interests relating to the stock
borrowing arrangements and overallotment arrangements relating to the IPO,
there is no person who has, or will have at or immediately following completion
of the Offer, any economic or beneficial interest in the equity or Restricted
Shares of the relevant Holder other than the Controller;
(h) except as permitted by clause 2.4, the relevant Holder holds (or will hold, in the
case of any Restricted Shares re-delivered to that Holder under stock borrowing
arrangements and overallotment arrangements relating to the IPO) its
Restricted Shares as set out in Item 4 of Schedule 1; and
(i) as at the Allotment Date, the relevant Holder’s Restricted Shares are all the
securities, economic interests or other interests that the Holder has directly or
indirectly in the Company.
4.3 Acknowledgment
Each Holder and Controller each acknowledge that a breach of any of the
representations and warranties set out in this clause 4 is a breach of this deed.
4.4 Survival of representations and warranties
The representations and warranties in this clause 4 survive termination of this deed.
5 Consequences of breaching this deed
(a) If it appears to the Company that a Holder or Controller may breach any of the
foregoing provisions of this deed, the Company may, and has undertaken to the
joint lead managers of the Offer that it will, take any steps necessary to prevent
the breach, or to enforce the deed as soon as it becomes aware of the potential
breach.
(b) If a Holder or Controller breaches any of the foregoing provisions of this deed (a
Defaulting Party), each of the following applies:
(1) the Company may take the steps necessary to enforce the deed, or to
rectify the breach, as soon as practicable after becoming aware of the
breach; and
(2) the Company may, in addition to its other rights and remedies, refuse
to acknowledge, deal with, accept or register any sale, assignment,
transfer or conversion of any of the Defaulting Party’s Restricted
Shares (this is in addition to other rights and remedies of the
Company).
(c) Each Holder or Controller acknowledges and agrees that a breach by it of any
of the foregoing provisions of this deed could cause substantial commercial and
financial detriment to the Company and other third parties.
(d) The parties agree that damages would be an insufficient remedy for breach of
clause 2.1 or clause 2.2 and each Holder and Controller agrees that the
Company is entitled to seek and obtain an injunction or specific performance to
enforce the Holder and/or Controller’s obligation under clause 2.1 or clause 2.2
6 Sell down after the Escrow Period
97012745
page 9
without proof of actual damage and without prejudice to any of its other rights or
remedies.
6 Sell down after the Escrow Period
(a) This clause 6 binds the Holders as between themselves but is not enforceable
by any other party.
(b) After the Escrow Period, the Holders agree that they will consult with one
another before Disposing of any Restricted Shares, and that if a Holder has an
opportunity to Dispose of Restricted Securities, it will afford the other Holder a
reasonable opportunity to Dispose of Restricted Securities at the same time in
the same manner and so that each Holder is able to Dispose of the same
number of Restricted Securities.
(c) This clause 6 will cease to apply, and will be of no force and effect, on and from
the date that either Holder’s Shareholding in the Company falls below 5%.
7 Amendment
This deed may not be amended without the prior written consent of the parties.
8 General
8.1 Governing law and jurisdiction
(a) This deed is governed by the laws of New South Wales, Australia.
(b) Each of the parties irrevocably submits to the non-exclusive jurisdiction of the
courts of New South Wales, Australia.
(c) Each of the parties irrevocably waives any objection to the venue of any legal
process on the basis that the process has been brought in an inconvenient
forum.
(d) Each of the parties irrevocably waives any immunity in respect of its obligations
under this deed which that party may acquire from the jurisdiction of any court
or any legal process for any reason including, but not limited to, the service of
notice, attachment prior to judgment, attachment in aid of execution or
execution.
8.2 Counterparts
This deed may be executed in any number of counterparts.
8.3 Further assurances
Each party must do all things and execute all further documents required to give full effect
to this deed.
8 General
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8.4 Notices
A Notice is regarded as given by a party to another party, at the time of delivery of that
Notice to the address, or transmission of that Notice by email to the email address, which
is specified in the address of that other party, unless in the case of a transmission by
email:
(a) the machine or computer from which that Notice is transmitted indicates a
malfunction in that transmission; or
(b) that other party gives Notice within the next Business Day, to the first-
mentioned party, of an incomplete transmission to that other party of the Notice
of the first-mentioned party.
8.5 Time of Essence
Time is of the essence to this deed.
97012745
page 11
Schedule 1
Details
Item 1
(Holders)
CIMIC CIMIC Group Limited
ABN 57 004 482 982
of Level 25, 177 Pacific Highway, North Sydney NSW 2060,
Australia
Attention: Company Secretary
Email address: companysecretariat@cimic.com.au
Copy to: robert.cotterill@cimic.com.au
Apollo AIF VIII Singapore Pte Ltd
of Level 11, Suite 1, 61 Robinson, Robinson Road
Singapore 068893, Singapore
Attention: Suzanne Spells
Email address: asialegal@apollo.com
Copy to: N/A
Item 2 Escrow
Period
The period ending at 4.15pm on the date on which the
Company releases its financial results for the period ending
31 December 2022.
Item 3
(Controllers)
Controller in
relation to
CIMIC
N/A. There is no Controller in relation to CIMIC.
Controller in
relation to
Apollo
AIF VIII Asia Intermediate, LLC
of c/o Apollo Management L.P., 9 West 57
th
Street, New
York, New York 10019 USA
Attention: Reinhold Asamoa Frimpong
Email address: rafrimpong@apollo.com
Copy to: N/A
AIF VIII Asia-Pacific Investments Pte. Ltd.
of Level 11, Suite 1, 61 Robinson, Robinson Road
Singapore 068893, Singapore
Attention: Suzanne Spells
Email address: asialegal@apollo.com
Copy to: N/A
AIF VIII Euro Holdings, L.P.
of c/o Apollo Management L.P., 9 West 57
th
Street, New
York, New York 10019 USA
Attention: Reinhold Asamoa Frimpong
Email address: rafrimpong@apollo.com
Copy to: N/A
Item 4
(Restricted
Shares)
In relation to
CIMIC
171,404,150280,366,971 Shares (and up to a further
17,344,603 Shares, if and to the extent that such Shares are
re-delivered to CIMIC under stock borrowing arrangements
and overallotment arrangements relating to the IPO)
In relation to
Apollo
171,404,150280,366,971 Shares (and up to a further
17,344,603 Shares, if and to the extent that such Shares are
re-delivered to Apollo under stock borrowing arrangements
and overallotment arrangements relating to the IPO)
97012745
page 13
Executed as a deed
Company
Signed sealed and delivered by
Ventia Services Group Limited
by
sign here ►
sign here ►
Company Secretary/Director Director
print name
print name
Holder
Signed sealed and delivered for and on behalf
of CIMIC Group Limited (ABN 57 004 482 982)
by its Attorneys under a Power of Attorney dated
20 July 2021 (and the Attorneys declare that the
Attorneys have not received any notice of the
revocation of such Power of Attorney) in the
presence of:
Signature of Attorney
Signature of Attorney
Name of Attorney
Name of Attorney
Signature of witness
Signature of witness
Name of Witness in full Name of Witness in full
Details
97012745
page 14
Holder
Signed sealed and delivered by
AIF VIII Singapore Pte Ltd
by
sign here ►
print name
in the presence of
sign here ►
Witness
print name
Controller
Signed sealed and delivered by
AIF VIII Asia Intermediate, LLC
By
sign here ►
print name
in the presence of
sign here ►
Witness
print name
Details
97012745
page 15
Controller
Signed sealed and delivered by
AIF VIII Asia-Pacific Investments Pte. Ltd.
By
sign here ►
print name
in the presence of
sign here ►
Witness
print name
Controller
Signed sealed and delivered by
AIF VIII Euro Holdings, L.P.
By
sign here ►
print name
in the presence of
sign here ►
Witness
print name
Data sourced from publicly available filings. Our datasets may not be complete. Automated analysis can produce errors. If you believe any data on this page is incorrect, please contact us at hello@nzxplorer.co.nz. For informational purposes only. Not investment advice.