Bremworth Enters Into Scheme Implementation Agreement
NZX Statement 2 October 2025
Bremworth Enters Agreement to be Acquired by Mohawk Industries
Leading flooring company Mohawk set to acquire Bremworth, securing shareholder value and
boosting New Zealand’s wool industry.
Premium wool carpet and rug manufacturer Bremworth Limited (NZX: BRW) today announced
that it has entered into a Scheme Implementation Agreement with Floorscape Limited.
Floorscape Limited is a wholly owned subsidiary of Mohawk Industries Inc., which operates
the Floorscape premium hard flooring business and owns carpet manufacturer Godfrey Hirst
NZ Limited.
Highlights of the proposed Scheme
Under the agreement, Floorscape Limited has agreed to acquire 100% of the shares in
Bremworth, conditional on the approvals described below.
The Scheme is expected to deliver shareholders an estimated total consideration in the range
of $1.05 to $1.15 per share, subject to market conditions and business performance. This
represents an attractive premium of up to:
• 135% to Bremworth’s share price prior to commencement of the Strategic Review
announced in February 2025; and
• 85% to its most recent closing price prior to the announcement of the Scheme.
The total consideration comprises two components:
• Scheme Consideration from Floorscape Limited: Cash payment of $0.75 per share;
and
• Capital Distribution of Excess Cash: In the form of a share buyback and fully imputed
dividend, estimated in the range of $0.30 to $0.40 per share.
The proposed Scheme is conditional on several matters, including shareholder approval, High
Court approval, New Zealand Commerce Commission clearance, Australian Competition and
Consumer Commission approval, and the Independent Advisor concluding that the Scheme
price is within or above its valuation range.
Bremworth’s Board unanimously recommends shareholders vote in favour of the Scheme,
subject to the Independent Adviser concluding that the Scheme price is within or above its
valuation range and in the absence of a Superior Proposal.
Shareholder Benefits
Rob Hewett, Chair of Bremworth, says the agreement delivers a favourable outcome for
shareholders while also creating long-term strategic benefits for New Zealand manufacturing,
wool growers and regional communities.
“As Chair, I am pleased to present this agreement on behalf of the Board following a
comprehensive strategic review and extensive engagement with potential buyers. Our focus
throughout has been on securing the best possible outcome for shareholders.
“This agreement reflects the strength of Bremworth’s brand and its future potential. It is a
positive outcome for shareholders who have stood by the company through some very
challenging years. The offer provides certainty of value at a meaningful premium.
“Looking beyond shareholder returns, the acquisition by Mohawk, a business with significant
revenues, strong balance sheet and operations in more than 170 countries, represents a
significant vote of confidence in New Zealand manufacturing. Importantly, this transaction
also offers strategic benefits for New Zealand.
“Bremworth’s wool and premium carpet products will be positioned within Mohawk’s global
distribution networks, providing greater export reach and showcasing New Zealand’s natural
fibre story on the world stage. With access to Mohawk’s capital and scale, Bremworth will be
better able to compete in New Zealand and Australia with competitively priced imported
carpets, and provide opportunities for growth in global markets (North America and Europe)
that have been challenging to compete in as a smaller competitor.
“In this way, a sale to Mohawk should strengthen demand for New Zealand strong wool,
supporting farmgate returns and regional economies. With Bremworth on a more sure
financial footing, this should also accelerate our innovation pipeline in both wool-based and
synthetic flooring solutions.”
Craig Woolford, Chief Executive Officer of Bremworth, says the transaction will provide the
operational backing needed to build capability and deliver more for customers and retail
partners.
“With Mohawk’s resources behind us, we can sharpen our focus on customer service, expand
our retail footprint in Australasia and give New Zealand-made carpets a stronger presence in
the global marketplace. This is about creating certainty and new opportunities for everyone
connected with Bremworth.”
Capital distribution
Under the agreement, Bremworth has the ability to distribute any excess cash above an
agreed minimum level to shareholders immediately prior to the Scheme becoming effective.
Based on Bremworth’s estimated cash flows between the date of this announcement and
expected implementation of the Scheme in H1 2026 Bremworth expects to distribute between
$21 million and $28 million via the capital distribution. This would represent a payment to
shareholders between $0.30 and $0.40 per share.
Bremworth emphasises that this estimate is based on assumptions of market conditions,
business performance and the timing of implementation. It is therefore subject to change.
Bremworth will provide updated estimates to shareholders, based on its trading performance
prior to the special shareholders meeting on whether to approve the Scheme.
Transaction Process
The agreement remains subject to a number of customary conditions including shareholder
approval, High Court approval, NZ Commerce Commission clearance, ACCC approval and an
IRD ruling on the tax implications of the capital return.
Bremworth and Floorscape are targeting completion of the Scheme in H1 2026. A shareholder
meeting will be convened once the regulatory and IRD ruling conditions are satisfied.
Bremworth shareholders do not need to take any action at this stage. Further information will
be provided in the Scheme Booklet, which will include the Independent Adviser’s Report.
In connection with the signing of the agreement, Bremworth will repurchase and cancel
certain shares held by the trustee of its LTI scheme. A buyback disclosure document is
attached to this announcement.
-ENDS-
For media enquiries, please contact:
Mark Devlin
Impact PR (for Bremworth Ltd)
M: +64 21 509 060
Rob Hewett
Bremworth Ltd
M: +64 21 341 744
---
Execution copy
3447-4830-2652 v2
Scheme Implementation
Agreement for the
acquisition of Bremworth
Limited
PARTIES
Floorscape Limited
Acquirer
Bremworth Limited
Company
Mohawk Industries, Inc.
Acquirer Guarantor
3447-4830-2652 v2 i
CONTENTS
1. INTERPRETATION ........................................................................................................................... 1
2. SCHEME .........................................................................................................................................15
3. CONDITIONS ..................................................................................................................................16
4. SCHEME BOOKLET .......................................................................................................................19
5. SCHEME IMPLEMENTATION STEPS ...........................................................................................23
6. COMPANY'S OTHER IMPLEMENTATION OBLIGATIONS ...........................................................26
7. COURT PROCEEDINGS ................................................................................................................27
8. RECOMMENDATION AND VOTING INTENTIONS .......................................................................28
9. ACCESS, INFORMATION AND CONDUCT OF BUSINESS .........................................................29
10. BUSINESS CONTRACTS AND LEASES .......................................................................................36
11. WARRANTIES AND UNDERTAKINGS ..........................................................................................37
12. INSURANCE ...................................................................................................................................40
13. EXCLUSIVITY AND MATCHING RIGHTS .....................................................................................41
14. TERMINATION ................................................................................................................................45
15. BREAK FEE, REGULATORY APPROVAL BREAK FEE AND REVERSE BREAK FEE ...............47
16. ANNOUNCEMENTS .......................................................................................................................51
17. PAYMENTS .....................................................................................................................................52
18. GST .................................................................................................................................................52
19. GUARANTEE ..................................................................................................................................53
20. NOTICES .........................................................................................................................................54
21. GENERAL .......................................................................................................................................55
SCHEDULE 1 .........................................................................................................................................58
Prescribed Occurrences..........................................................................................................58
SCHEDULE 2 .........................................................................................................................................60
Company Warranties and Undertakings .................................................................................60
SCHEDULE 3 .........................................................................................................................................63
Acquirer Warranties and Undertakings ...................................................................................63
SCHEDULE 4 .........................................................................................................................................65
Timetable ................................................................................................................................65
SCHEDULE 5 .........................................................................................................................................67
Scheme Plan ...........................................................................................................................67
SCHEDULE 6 .........................................................................................................................................68
Deed Poll .................................................................................................................................68
SCHEDULE 7 .........................................................................................................................................69
Pro Forma Cash Balance ........................................................................................................69
3447-4830-2652 v2 1
AGREEMENT dated 1 October 2025
PARTIES
Floorscape Limited
(the "Acquirer")
Bremworth Limited (company number 245326)
(the "Company")
Mohawk Industries, Inc.
(the "Acquirer Guarantor")
INTRODUCTION
A. The Company is listed on the NZX Main Board under the ticker code BRW.
B. The Acquirer proposes to acquire all of the shares in the Company by way of a scheme of
arrangement under Part 15 of the Companies Act. The Company also proposes to undertake
a capital return pursuant to this scheme of arrangement.
C. The parties have entered into this agreement to record the arrangements by which the
Acquirer and the Company intend to propose and implement the Scheme.
AGREEMENT
1. INTERPRETATION
1.1 Definitions: In this agreement, unless the context otherwise requires:
“ACCC” means the Australian Competition & Consumer Commission.
“ACCC Informal Approval” will be taken to have been obtained or received where the
ACCC:
(a) advises the Acquirer in writing that it does not intend to take action under the CCA
in relation to a contravention, or possible contravention, of section 50 of the CCA in
relation to the Scheme (either unconditionally or on conditions that are acceptable
to the Acquirer, acting reasonably); or
(b) issues the Acquirer a written advice that meets the requirements of section
189(2)(a) of the CCA and:
(i) that written advice has not been withdrawn, revoked or adversely
amended before the Implementation Date; and
3447-4830-2652 v2 2
(ii) less than 12 months have elapsed since the date of the advice.
“ACCC Statutory Clearance” will be taken to have been obtained or received:
(a) where the ACCC makes a determination under section 51ABZE(1) of the CCA
which is finally considered (s51ABF) that the Scheme may be put into effect (either
unconditionally or on conditions that are acceptable to the Acquirer, acting
reasonably), or grants a notification waiver under section 51ABV in relation to the
Scheme for which the period for any application for review has expired without
such an application; or
(b) where the Australian Competition Tribunal has, pursuant to section 100N(1)(a) of
the CCA made a determination that the Scheme may be put into effect (either
unconditionally or on conditions that are acceptable to the Acquirer, acting
reasonably); and
and that in either case, the determination has not become stale under section 51ABG of the
CCA.
"Acquirer Group" means the Acquirer and each of its Related Companies (but, following the
implementation of the Scheme, excluding members of the Bremworth Group).
"Acquirer Indemnified Person" means each member of the Acquirer Group and each of
their respective directors, officers and employees and financial and legal advisers.
"Acquirer Information" means all information given by the Acquirer to the Company for
inclusion in the Scheme Booklet, being:
(a) information about the Acquirer Group and its businesses and interests;
(b) the information contemplated by clause 4.2(a); and
(c) any other information which the parties agree (acting reasonably) is Acquirer
Information and which is identified in the Scheme Booklet as such.
"Acquirer Undertakings" means the undertakings set out in Part 2 of Schedule 3.
"Acquirer Warranties" means the warranties set out in Part 1 of Schedule 3.
"Additional Amount" has the meaning given to that term in clause 18.3.
"Associate" has the meaning given in the Takeovers Code and "Associated" shall have a
corresponding meaning
"Bill Rate" means, in respect of any rate of interest to be calculated pursuant to this
agreement, the Reserve Bank of New Zealand 90 day B2 Wholesale interest rate stated on
the following page (or any successor page) http://www.rbnz.govt.nz/statistics/b2 at or about
3.00pm on the first Business Day of the period in respect of which such rate of interest is to
be calculated, and thereafter at intervals of 90 days from that Business Day.
"Board" means the board of directors of the Company.
"Break Fee" means $520,968.
3447-4830-2652 v2 3
"Break Fee Arrangements" has the meaning given to that term in clause 15.8.
"Bremworth Group" means the Company and its Subsidiaries.
"Business" means the business carried on by the Bremworth Group as at the date of this
agreement.
"Business Day" means any day other than a Saturday, Sunday or a statutory public holiday
in Auckland, New Zealand.
"Capital Return" means the Scheme Dividend and the Scheme Buyback.
"Cash" means cash or cash equivalents, including:
(a) cash on hand;
(b) cash standing to the credit of any account with a bank or financial institution; and
(c) term deposits, other cash deposits and bonds,
provided that where such cash or cash equivalents are held other than in New Zealand
dollars, for the purposes of any calculation of Cash contemplated by this agreement, the
value of such amounts shall be assessed in New Zealand dollars with reference to the
exchange rate offered by the Company's bankers to the Company at the relevant time of
such calculation.
“CCA” means the Competition and Consumer Act 2010 (Cth).
"Change of Control Consent" has the meaning given to that term in clause 10.1.
"Companies Act" means the Companies Act 1993.
"Company Director" means each director of the Company from time to time.
"Company Indemnified Persons" means each member of the Bremworth Group and each
of their respective directors, officers, employees and financial and legal advisers.
"Company Information" means all information included in the Scheme Booklet other than
the Acquirer Information and the Independent Adviser's Report.
"Company Undertakings" means the undertakings set out in Part 2 of Schedule 2.
"Company Warranties" means the warranties set out in Part 1 of Schedule 2.
"Competing Proposal" means any proposed:
(a) takeover (whether a full or partial takeover under the Takeovers Code) in respect
of the Company by a Third Party;
(b) scheme of arrangement for the acquisition of all or a majority of the Shares
involving a Third Party;
(c) transfer or issuance of financial products of the Company to a Third Party:
3447-4830-2652 v2 4
(i) where the Shareholders' approval is required under the Takeovers Code;
or
(ii) in respect of financial products which are convertible into, or
exchangeable for, Shares, where Shareholders' approval would be
required under the Takeovers Code on conversion or exchange of those
financial products into Shares; or
(d) sale of assets or financial products of any member of the Bremworth Group to a
Third Party, where such sale constitutes a material part of the Bremworth Group's
Business (and, for clarity, will not include any accounting adjustment that results in
a notional disposal of assets).
For the purposes of the definition of "Competing Proposal":
(e) any such proposal may be an expression of interest, indicative, conditional or
otherwise non-binding;
(f) paragraphs (c) and (d) above include any agreement (within the meaning of
section 6 of the FMCA) whereby such a transaction is effected through a series of
linked or related transactions which, if conducted as a single transaction, would
constitute a "Competing Proposal" within the meaning of paragraphs (c) and (d)
above; and
(g) "Third Party" shall mean a Third Party together with its Associates.
"Conditions" mean the conditions precedent set out in the table in clause 3.1.
"Consequential Loss" means any loss that is or represents loss of business, loss of
goodwill, loss of present or future reputation or adverse publicity, loss of opportunity,
damage to credit rating or any other form of special, indirect, consequential or punitive loss,
but does not mean loss arising directly from, or immediately associated with, the relevant
breach.
"Consideration" means $0.75 in cash in respect of each Scheme Share held by a Scheme
Shareholder (including, for clarity, any Scheme Shares that are to be acquired and cancelled
under the Scheme Buyback), as may be adjusted by virtue of any Counter Proposal that is
given effect to.
"Counter Proposal" has the meaning given to that term in clause 13.7(b)(iii).
"Court" means the High Court of New Zealand, Auckland Registry.
"D&O Run-off Policy" has the meaning given to that term in clause 12.1(a).
"Data Room" means the "Project Loop" virtual data room hosted by Ansarada and
established by or on behalf of the Company in relation to the Transaction.
"Deed Poll" means the deed poll to be entered into by the Acquirer and the Acquirer
Guarantor in favour of the Scheme Shareholders, in the form set out in Schedule 6 or such
other form agreed between the parties.
3447-4830-2652 v2 5
"Disclosure Letter" means a letter delivered by the Company to the Acquirer prior to the
entry into this agreement, together with the attachments to that letter, and which discloses
facts, matters and circumstances that are, or may be, inconsistent with the Company
Warranties.
"Due Diligence Material" means:
(a) the materials and information, including written answers given by or on behalf of
the Company to questions and requests for information made by or on behalf of the
Acquirer Group, contained in the Data Room prior to entry into this agreement, a
complete copy of which materials and information will be provided by the Company
to the Acquirer on a USB drive within two Business Days after the date of this
agreement; and
(b) the Disclosure Letter.
"EBITDA" means earnings before interest, tax, depreciation and amortisation.
"Effective" means, when used in relation to the Scheme, the coming into effect under
section 236(3) of the Companies Act of the order of the Court made under section 236(1) of
the Companies Act in relation to the Scheme.
"Encumbrance" means any security interest (within the meaning of section 17(1)(a) of the
PPSA) and any option, right to acquire, right of pre-emption, assignment by way of security,
trust arrangement for the purpose of providing security, retention arrangement or other
security interest of any kind (other than any reservation of title by suppliers in the ordinary
course of business), and any agreement to create any of the foregoing, but excludes (where
created in the ordinary course of business):
(a) every lien or retention of title arrangement securing the unpaid balance of purchase
money for property acquired in the ordinary course of business;
(b) any security interest in relation to personal property (as that term is defined in the
PPSA) that is created or provided for by:
(i) a transfer of an account receivable or chattel paper;
(ii) a lease for a term of more than one year; or
(iii) a commercial consignment,
that is not a security interest within the meaning of section 17(1)(a) of the PPSA;
(c) the interest of the lessor or owner in respect of assets subject to a lease, a hire-
purchase agreement or a conditional sale agreement;
(d) any charge or lien created by or arising by operation of any law provided it does
not secure overdraft debts;
(e) any right of netting or set-off or combination of account.
"End Date" means the date that is nine months after the date of this agreement, or such
later date as contemplated by clause 7.4 or as the parties agree in writing.
3447-4830-2652 v2 6
"Exclusivity Period" means the period starting on the date of this agreement and ending on
the first to occur of:
(a) termination of this agreement;
(b) the Implementation Date; and
(c) the End Date.
"Expert" means, upon the application by either party, an expert in the relevant subject matter
appointed by the President, or their nominee, of the Arbitrators' and Mediators' Institute of
New Zealand Inc.
"Final Orders" means, on application of the Company, orders that the Scheme will be
binding on the Company, the Acquirer, Scheme Shareholders and/or such other persons or
class of persons as the Court may specify, in accordance with section 236(1) (and section
237, if applicable) of the Companies Act.
"Final Orders Date" means the day on which the Final Orders are granted by the Court.
"First Court Date" means the first date on which the application is made to the Court for the
Initial Orders in accordance with section 236(2) of the Companies Act.
"FMCA" means the Financial Markets Conduct Act 2013.
"Fundamental Warranties" means the Company Warranties set out in paragraphs 1 to 6
(inclusive) of Part 1 of Schedule 2.
“Good Industry Practice” means, in relation to asbestos management and remediation, the
exercise of that degree of skill, diligence, prudence and foresight which would reasonably
and ordinarily be expected from a skilled and experienced operator engaged in works of a
similar type, scope and complexity, in compliance with applicable law, relevant codes of
practice (including the Approved Code of Practice for the Management and Removal of
Asbestos 2016), and generally accepted standards in the industry in New Zealand at the
relevant time.
"Government Agency" means any government, any department, officer or minister of any
government and any governmental, semi-governmental, regulatory, administrative, fiscal,
judicial or quasi-judicial agency, authority, board, commission, tribunal or entity.
"GST" means goods and services tax charged or levied under the GST Act, and includes
any GST Default Amounts.
"GST Act" means the Goods and Services Tax Act 1985.
"GST Default Amounts" means any penalties, additional tax or interest payable in respect
of goods and services tax.
"GST Exclusive Consideration" has the meaning given to that term in clause 18.2.
"HSWA Standards" means the Health and Safety at Work (Asbestos) Regulations 2016 and
the management approach in the Approved Code of Practice for the Management and
Removal of Asbestos 2016.
3447-4830-2652 v2 7
"Implementation Date" means the day on which the Scheme is to be implemented, being
the date specified in the following table:
If (in the relevant period) the Second Court Date is: the Implementation Date is:
on or before 2 February 2026 9 February 2026
after 9 February and on or before 2 March 2026 6 March 2026
after 6 March and on or before 30 March 2026 7 April 2026
after 7 April and on or before 30 April 2026 6 May 2026
after 6 May and on or before 2 June 2026 8 June 2026
after 1 June 2026, the date that is 4 Business Days prior
to the date specified in the next column
the date that is 6th of the following
month (or, if the 6
th
date of that month
is not a Business Day, the next
Business Day)
or such other date agreed between the parties in writing.
"Independent Adviser" means the person appointed by the Company, and approved by the
Takeovers Panel, as independent adviser to prepare the Independent Adviser's Report.
"Independent Adviser's Report" means the independent adviser's report prepared by the
Independent Adviser in relation to the Scheme, as amended or updated from time to time
and including any supplementary or replacement report.
"Independent Expert" means an appropriately qualified professional experienced in
assessing and providing advice in relation to asbestos remediation matters of the nature of
the Potential Remediation Issues.
"Initial Orders" means, on application by the Company, orders by the Court for the purposes
of section 236(2) of the Companies Act.
"Insolvency Event" means, in relation to a person, the occurrence of any of the following:
(a) the person ceases or threatens to cease to carry on all or substantially all of its
business or operations;
(b) the person is unable to pay its debts when due (as defined in section 287 of the
Companies Act), or enters into dealings with any of its creditors with a view to
avoiding or in expectation of insolvency, or makes a general assignment or an
arrangement or composition or compromise with or for the benefit of any of its
creditors, or stops or threatens to stop payments generally;
(c) the person goes into receivership or has a receiver, receiver and manager,
statutory manager, trustee or other similar officer appointed in respect of all or any
of its property;
(d) a distress order, attachment order, freezing order or other execution is levied or
enforced upon or commenced against any of its material assets;
(e) any resolution is proposed or passed, or any proceeding is commenced or order
made, for the liquidation or dissolution of that person;
3447-4830-2652 v2 8
(f) that person takes any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts referred to in this definition; or
(g) anything analogous to anything referred to in the above paragraphs, or which has
substantially similar effect, occurs with respect to it, including under any applicable
foreign law.
"IRD Ruling" means the provision by Inland Revenue of (a) a private binding ruling as to the
New Zealand tax implications of the proposed Capital Return and (b) a letter confirming the
likelihood of satisfying the conditions of that ruling.
"Lease" means the lease between Manukau Industrial Holdings Limited (as lessor),
Bremworth Limited (as tenant) and Cavalier Corporation Limited (as guarantor) dated 23
December 2020.
"Lease Term" means the current term of the Lease, expiring on 23 December 2034.
"Letter of Intention" means a letter from the Takeovers Panel indicating that the Takeovers
Panel intends to issue a No-Objection Statement and does not intend to seek to be heard by
the Court in relation to the application for Initial Orders.
“Loss” means all losses, damages, costs, expenses, charges, overhead, debt or damages
and other liabilities (in each case whether known or unknown, actual, contingent or
prospective) of any kind and however arising, including penalties, fines and interest.
"LTI Shares" means the Shares issued to, and held on trust for certain participants by,
Bremworth Share Scheme Limited, pursuant to the "Bremworth Limited 2022 Long-Term
Incentive Plan".
"Matching Period" has the meaning given to that term in clause 13.7(b).
“Minimum Retained Cash” means the aggregate of:
(a) the Remaining Capital Expenditure;
(b) $1,600,000; and
(c) the Remaining Remediation Costs (if applicable).
"No-Objection Statement" means a statement from the Takeovers Panel under section
236A(2)(b)(ii) that it has no objection to the Final Orders being granted by the Court.
"NZCC" means the New Zealand Commerce Commission.
"NZX" means NZX Limited and, where the context requires, the main board financial market
that it operates.
"NZX Code" means the NZX Corporate Governance Code.
"NZX Listing Rules" means the NZX Main Board Listing Rules.
"PPSA" means the Personal Property Securities Act 1999.
3447-4830-2652 v2 9
"Prescribed Occurrence" means the occurrence of any of the events listed in Schedule 1
other than an event:
(a) agreed to by the Acquirer in writing; or
(b) expressly required or permitted by this agreement.
"Potential Remediation Issues" means asbestos-related issues:
(a) of the nature described in the email from Tania Pauling to Montarne dated
Wednesday, 10 September 2025 11:05 am) (it being acknowledged that such
email is referred to for illustrative purposes only and is subject to verification,
agreement and (if required) determination through the process under clause 9.6
and 9.7); and
(b) which are of a capital, structural or other nature that require works,
to ensure compliance with the HSWA Standards, Good Industry Practice, and the Tenant’s
obligations under the Lease (including repair, maintenance and reinstatement obligations, if
any), agreed between the parties under clause 9.6 or determined by the Independent Expert
under clause 9.7.
"Pro Forma Cash Balance" means a statement showing the Company's good faith estimate
of the Bremworth Group's pro forma aggregate Cash immediately following the Capital
Return, in the form set out in Schedule 7 (together with any supporting information
reasonably requested by the Acquirer, including Bremworth Group's actual aggregate Cash
on the Second Court Date).
"Record Date" means 5:00pm on the date which is two Business Days before the
Implementation Date, or such other date agreed between the Acquirer and the Company in
writing.
"Register" means the Share register maintained by Computershare Investor Services
Limited on behalf of the Company.
"Registrar" has the meaning given in the Companies Act.
"Regulatory Applications" means each of the Acquirer's:
(a) application to NZCC under the Commerce Act 1986 for clearance to implement the
Scheme; and
(b) application for ACCC Informal Approval or, where ACCC Informal Approval is not
received by or on 31 December 2025, the Acquirer's application for ACCC
Statutory Clearance.
"Regulatory Approval Break Fee" means 1% of the aggregate of:
(a) $52,096,801; plus
(b) the Cash balance held on the date of termination of this Agreement under
clause 15.4, less the Minimum Retained Cash amount.
3447-4830-2652 v2 10
"Regulatory Conditions" means the Regulatory Condition (ACCC) and the Regulatory
Condition (NZCC).
"Regulatory Condition (ACCC)" means the Condition in clause 3.1(b).
"Regulatory Condition (NZCC)" means the Condition in clause 3.1(a).
"Related Company" has the meaning given to that expression in section 2(3) of the
Companies Act, read as if the reference to "company" in that section included any body
corporate or entity, wherever incorporated.
"Relevant Date" means, in relation to a Condition, the date or time specified in this
agreement for its fulfilment or, if no date or time is specified, 8.00 am on the Second Court
Date, subject, in either case, to extension to that date made under clause 3.6.
"Relevant Interest" has the meaning given to that term in section 235(1) of the FMCA.
"Relief" means any loss, allowance, credit, deduction, rebate or other relief taken into
account in computing any Tax liability or any right to the repayment or refund of Tax.
"Remaining Capital Expenditure" means, in respect of any item of budgeted capital
investments identified on pages 62 and 63 of Data Room document 01.01 that is incomplete
as at the date the Final Orders are granted, the amount of budgeted expenditure that
remains unspent as at that date.
"Remaining Remediation Costs" has the meaning given to that term in clause 9.8(e)(ii).
"Remediation Project" means the works required to address the Potential Remediation
Issues, as agreed or determined under clauses 9.6 or 9.7.
"Representatives" in relation to a person means:
(a) any director, officer, employee or agent of, and any accountant, auditor, financier,
financial adviser, legal adviser, technical adviser or other expert adviser or
consultant to, that person; and
(b) when used in clauses 2.4, 13 and 16.2 only, includes any member of the
Bremworth Group and any director, officer, employee or agent of, that member of
the Bremworth Group.
"Reverse Break Fee" means $520,968.
"Scheme" means a scheme of arrangement under Part 15 of the Companies Act under
which:
(a) the Capital Return will be made; and
(b) all of the Scheme Shares held by Scheme Shareholders (other than any Scheme
Shares repurchased and cancelled by the Company pursuant to the Scheme
Buyback) will be transferred to the Acquirer and the Scheme Shareholders will be
entitled to receive the Consideration,
in the form of the Scheme Plan.
3447-4830-2652 v2 11
"Scheme Booklet" means the explanatory memorandum (including the notice of meeting
and proxy form) to be prepared in accordance with this agreement in connection with the
Scheme, the despatch of which is to be approved by the Court and which is to be sent to
Shareholders in advance of the Scheme Meeting and includes, where applicable, any
supplement, addendum or other update or change to that booklet after it has been sent to
Shareholders.
"Scheme Buyback" means the purchase and cancellation of a portion of the Shares held by
Scheme Shareholders by the Company pursuant to the Scheme and in accordance with the
Scheme Plan.
"Scheme Dividend" means the dividend to be paid by the Company to Scheme
Shareholders pursuant to the Scheme and in accordance with the Scheme Plan.
"Scheme Meeting" means the meeting of Shareholders ordered by the Court to be
convened pursuant to the Initial Orders in respect of the Scheme and includes any
adjournment or rescheduling of that meeting.
"Scheme Plan" means the Scheme plan set out in Schedule 5 or in such other form as the
parties agree in writing and the Court approves under section 236(1) of the Companies Act.
"Scheme Resolution" means the resolution to be put to Shareholders at the Scheme
Meeting to approve the Scheme.
"Scheme Shareholder" means a person who is registered in the Register on the Record
Date as the holder of one or more Scheme Shares.
"Scheme Shares" means all of the Shares on issue on the Record Date.
"Schemes Guidance Note" means the guidance note issued by the Takeovers Panel in
relation to schemes of arrangement and amalgamations under Part 15 of the Companies Act
dated 31 July 2024 (as amended, updated or reissued from time to time).
"Second Court Date" means the later of:
(a) if no hearing is held in respect of the Final Orders, the last date the Company files
affidavit(s) satisfying the Initial Orders so as to obtain the Final Orders; and
(b) if there is a hearing in respect of the Final Orders, the first date of such hearing,
provided that if such hearing is adjourned, it means the first date on which the
adjourned application is heard.
"Share" means a fully paid ordinary share in the Company.
"Shareholder" means a person who is registered in the Register as the holder of one or
more of the Shares from time to time.
"Subsidiary" has the meaning given to that term in section 5 of the Companies Act.
"Superior Proposal" means a written bona fide Competing Proposal received by the
Company, in writing, after the date of this agreement, that the Board determines, acting in
good faith and after having taken advice from its external financial and legal advisers:
3447-4830-2652 v2 12
(a) is reasonably capable of being implemented, taking into account all aspects of the
Competing Proposal, including its conditions precedent and regulatory conditions,
and the likelihood of satisfying those conditions; and
(b) is more favourable to Shareholders (as a whole) than the Scheme (if applicable, as
amended or varied under any Counter Proposal provided by the Acquirer under
clause 13), taking into account all the terms and conditions (including
consideration, conditionality, funding, certainty and timing) of the Competing
Proposal and the Scheme and any other matters affecting the probability of the
Competing Proposal and the Scheme being completed in accordance with their
respective terms.
"Supplier" has the meaning given to that term in clause 18.3.
"Surviving Clauses" means clauses 1 (Interpretation), 11.6 (Waiver of claims), 15 (Break
Fee, Regulatory Approval Break Fee and Reverse Break Fee) 16 (Announcements), 17
(Payments), 18 (GST), 19 (Notices) and 21 (General, but excluding clause 21.5).
"Takeovers Code" means the takeovers code approved in the Takeovers Regulations 2000
(SR 2000/210) as amended including by any applicable exemption granted by the Takeovers
Panel under the Takeovers Act 1993.
"Takeovers Panel" means the Takeovers Panel established by section 5(1) of the
Takeovers Act 1993.
"Tax" or "Taxation" means all forms of taxation including all statutory or governmental taxes,
levies, duties, rates, stamp and transaction duty, or any goods and services tax, value added
tax or consumption tax imposed by a Government Agency, and includes:
(a) any reassessments of any such taxation;
(b) loss of Relief; and
(c) all penalties, interest, fines or the like imposed in respect of any such taxation or
loss of Relief.
"Third Party" means a person other than:
(a) a member of the Acquirer Group; or
(b) an Associate of a member of the Acquirer Group in respect of this Transaction.
"Timetable" means the timetable set out in Schedule 4, or such other timetable as the
parties may agree in writing.
"Transaction" means the acquisition by the Acquirer of all the Scheme Shares (other than
any Scheme Shares repurchased and cancelled by the Company pursuant to the Scheme
Buyback) through the implementation of the Scheme in accordance with the terms of this
agreement.
1.2 References: In this agreement, unless the context otherwise requires:
(a) headings are to be ignored in construing this agreement;
3447-4830-2652 v2 13
(b) the singular includes the plural and vice versa;
(c) a reference to a statute or other law includes regulations and other instruments
under it and consolidations, amendments, re-enactments or replacements of any of
them (whether before or after the date of this agreement);
(d) reference to any document includes reference to that document (and, where
applicable, any of its provisions) as amended, novated, supplemented, or replaced
from time to time;
(e) reference to a party, person or entity includes:
(i) an individual (including their estate and personal representatives),
partnership, firm, company, body corporate, corporation, association,
trust, estate, state, government or any agency thereof, municipal or local
authority and any other entity, whether incorporated or not (in each case
whether or not having a separate legal personality); and
(ii) an employee, sub-contractor, agent, successor, assign, executor,
administrator and other representative of such party, person or entity
(immediate or otherwise);
(f) "written" and "in writing" include any means of reproducing words, figures or
symbols in a tangible and visible form;
(g) the words "including" or "includes" do not imply any limitation and general words
must not be given a restrictive meaning just because they are followed by
particular examples intended to be embraced by the general words;
(h) a reference to any time is a reference to that time in New Zealand;
(i) a reference to "ordinary course of business" means the course of the Business,
substantially in the same manner as the 12 months preceding the date of this
agreement;
(j) a reference to "law" includes any statute, regulation, by-law, determination,
ordinance, rule (including applicable listing rules) or other like provision, as
amended from time to time, in any jurisdiction;
(k) references to the NZX Listing Rules includes any variation, consolidation or
replacement of those roles and is taken to be subject to any waiver or exemption
granted to the compliance of those rules by a party;
(l) references to a clause, schedule or annexure is a reference to a clause, schedule
or annexure of or to this agreement (and the schedules and annexures form part of
this agreement);
(m) if a word or phrase is defined, other grammatical forms of that word have a
corresponding meaning;
(n) references to money are to New Zealand dollars; and
3447-4830-2652 v2 14
(o) a reference to a matter, information or a circumstance being "fairly disclosed"
means disclosure in writing to the Acquiror or any of its Representatives in a
manner and in sufficient detail such that the matter, information or circumstance
would reasonably be expected to come to the knowledge of a diligent and
reasonable bidder or any of its Representatives in the ordinary course of carrying
out a due diligence exercise in respect of the Bremworth Group and the Business,
in such a way that such a bidder (experienced in businesses of this nature) would
reasonably be expected to understand the relevance and importance of the matter,
information or circumstance.
1.3 Consents: If the doing of any act, matter or thing under this agreement is dependent on the
consent or approval of a party or is within the discretion of a party, then, unless specified
otherwise in this agreement, such consent or approval may be given or such discretion may
be exercised conditionally or unconditionally or withheld by the party in its absolute discretion
(unless this agreement specifies otherwise).
1.4 No contra proferentem: No term or condition of this agreement will be construed adversely
to a party solely because that party was responsible for the preparation of this agreement or
a provision of it.
1.5 Knowledge:
(a) Where any Company Warranty is qualified by the expression "so far as the
Company is aware" or any similar expression, the Company will be deemed to
know or be aware of all matters or circumstances of which Rob Hewett, Trevor
Burt, Julie Bohnenn, Murray Dyer, Craig Woolford and Victor Tan are actually
aware of as at the date of this agreement and includes such additional facts or
circumstances of which any such person would or ought to have been aware had
he or she made due enquiry of his or her direct reports as at the date of this
agreement.
(b) For clarity, and without limiting clause 11.6, none of the individuals referred to in
this clause 1.5 has any personal liability in respect of the Company Warranties.
(c) Other than as contemplated by clause 1.5(a), the knowledge, belief or awareness
of any person will not be imputed to the Company.
1.6 Things required to be done other than on a Business Day: Unless otherwise indicated, if
the day on which any act, matter or thing is to be done is a day other than a Business Day,
that act, matter or thing must be done on or by the next Business Day.
1.7 Independent Adviser's conclusion: For the avoidance of doubt, for the purposes of this
agreement, the Independent Adviser's Report will not be treated as having concluded that
the Consideration is within or above the Independent Adviser's valuation range for the
Shares if, after the finalisation of the initial Independent Adviser's Report, the Independent
Adviser issues a replacement or supplementary report containing a revised valuation range
for the Shares and the Consideration is below the revised valuation range (and, for clarity,
such replacement or supplementary report, or any subsequent replacement or
supplementary report, is not superseded by a further replacement or supplementary report
containing a revised valuation range for the Shares and the Consideration is within or above
the revised valuation range for the Shares).
3447-4830-2652 v2 15
2. SCHEME
2.1 Proposal: The Company must propose and (subject to the Scheme becoming Effective)
implement the Scheme on and subject to the terms of this agreement. The Acquirer must co-
operate with the Company and assist the Company to propose and implement the Scheme
on the terms and subject to the conditions set out in this agreement.
2.2 Consideration: Each Scheme Shareholder is entitled to receive the Consideration in
respect of each Scheme Share held by that Scheme Shareholder subject to and in
accordance with the terms of this agreement and the Scheme.
2.3 Acquirer to pay Consideration: In consideration for, and simultaneously with, the transfer
to the Acquirer of each Scheme Share held by each Scheme Shareholder under the terms of
the Scheme (other than any Scheme Shares repurchased and cancelled by the Company
pursuant to the Scheme Buyback), the Acquirer undertakes in favour of the Company (in the
Company's own right and on behalf of each of the Scheme Shareholders) to pay or procure
the payment of the Consideration to each Scheme Shareholder in accordance with the
Scheme and the Deed Poll.
2.4 General obligations: Each party must do everything reasonably necessary, including by
procuring that its Representatives work in good faith in a timely and co-operative manner
with the other party and its Representatives, to implement the Scheme in accordance with
this agreement and all applicable laws.
2.5 Timetable:
(a) Each party must use reasonable endeavours to ensure that the Scheme is
proposed and implemented in accordance with the Timetable or otherwise as soon
as reasonably practicable. Failure by a party to meet any timeframe or deadline
set out in the Timetable will not constitute a breach of this clause 2.5 to the extent
that such failure is due to circumstances and matters outside the party's control or
such party otherwise has used reasonable endeavours to meet the Timetable.
(b) Each party will keep the other informed about their progress against the Timetable.
If any aspect of the Timetable is not expected to be achieved, the parties must
consult in good faith on a timely basis with a view to amending the Timetable as
required to permit the Scheme to be implemented before the End Date.
(c) Without limiting this clause, the parties agree to work together in good faith to
determine the optimal date to file documents to seek Final Orders, having regard to
the definition of the Implementation Date.
For clarity, neither this clause nor the Timetable limit the Company's ability to deal with a
Competing Proposal in accordance with clause 13.
2.6 No amendment: The Company must not promote or consent to any modification of, or
amendment to, the Scheme or Final Orders, or the making or imposition by the Court or any
Government Agency of any condition to the Scheme, without:
(a) the Acquirer's counsel's consent, where a modification or amendment is made,
imposed or requested at a Court hearing where the Acquirer's counsel is present
(and the Acquirer must procure that such consent is not unreasonably withheld or
delayed); or
3447-4830-2652 v2 16
(b) the Acquirer's prior written consent in the case of any other modification or
amendment (such consent not to be unreasonably withheld or delayed).
3. CONDITIONS
3.1 The Scheme will not become Effective, and the obligations of the Acquirer under clause 2.2
and, once signed, the Deed Poll, do not become binding, unless and until each of the
Conditions set out in the following table are satisfied or waived in accordance with this
clause 3.
CONDITION RESPONSIBILITY WAIVER
(a) (NZCC Clearance) before 8:00am on the
End Date, clearance has been given to the
Acquirer under the Commerce Act 1986 for
implementation of the Scheme on terms
acceptable to the Acquirer, acting
reasonably;
Acquirer None
(b) (ACCC Clearance) before 8.00 am on the
End Date, ACCC Informal Approval or, if
ACCC Informal Approval is not received by
or on 31 December 2025, ACCC Statutory
Clearance is obtained or received .
Acquirer None
(c) (IRD Ruling) before 8:00am on the End
Date, the IRD Ruling is issued on terms
acceptable to the Company, acting
reasonably;
Company None
(d) (Court approval) subject to clause 3.2,
approval of both the Initial Orders and Final
Orders being given by the Court in
accordance with Part 15 of the Companies
Act on terms acceptable to the Company and
the Acquirer, each acting reasonably;
Company None
(e) (Shareholder approval) approval of the
Scheme being given by the Shareholders at
the Scheme Meeting by the requisite
majorities in accordance with sections
236A(2)(a) and 236A(4) of the Companies
Act;
Company None
(f) (No restraint) no law, judgment, order,
restraint or prohibition enforced or issued by
any Government Agency being in effect as at
8:00am on the Implementation Date that
prohibits, prevents or makes illegal the
implementation of the Scheme;
None None
3447-4830-2652 v2 17
CONDITION RESPONSIBILITY WAIVER
(g) (No Prescribed Occurrence) no Prescribed
Occurrence occurring between the date of
this agreement and 8:00am on the
Implementation Date;
Company Acquirer
(h) (Independent Adviser's Report) the
Independent Adviser's Report concludes that
the Consideration is above or within the
Independent Adviser's valuation range for
the Shares.
None Company
3.2 Court Approval: If the Court's approval of the Scheme in accordance with section 236(1) of
the Companies Act would impose any terms or conditions other than those set out in the
Scheme Plan, then each such term or condition must be approved in writing by both parties
(both acting reasonably) prior to the Court granting the Final Orders.
3.3 Endeavours to satisfy Conditions:
(a) The party specified in the "Responsibility" column of the table in clause 3.1
opposite each Condition is primarily responsible for the satisfaction of that
Condition and (where applicable) must promptly apply for or seek each consent or
approval required to satisfy that Condition, and diligently pursue it. Such party must
use reasonable endeavours to satisfy that Condition:
(i) in the case of any Condition in clauses 3.1(a), (b), (c), (d) and (e) as soon
as practicable and, in any event, before the End Date; and
(ii) in the case of the Condition in clause 3.1(f) at all times before 8:00am on
the Implementation Date.
(b) Regardless of whether a party is primarily responsible for the satisfaction of a
particular Condition in accordance with clause 3.3(a), each party must:
(i) promptly provide all information and other assistance reasonably required
by the other party for the purposes of procuring the satisfaction of each
Condition; and
(ii) not take any action or omit to take any action to deliberately hinder,
subvert or undermine the satisfaction of any Condition, except to the
extent that such action is required by law, and provided that this provision
does not limit the Company's ability to deal with a Competing Proposal in
accordance with, and to the extent permitted by, clause 13, or to deal
with any other circumstances in accordance with the terms of this
agreement and the Board's fiduciary duties.
(c) Nothing in this clause 3.3 will require either party to incur any additional costs
(other than advisor costs and filing fees) or to offer, agree to or accept any
undertakings, commitments or conditions.
3447-4830-2652 v2 18
3.4 Waiver: Where the column headed "Waiver" of the table in clause 3.1 opposite a Condition
states "None", that Condition has been inserted for the benefit of both parties and cannot be
waived by either of the parties. The Condition in clause 3.1(g) has been inserted for the
benefit of, and may only be waived by, the Acquirer by notice in writing to the Company. The
Condition in clause 3.1(h) has been inserted for the benefit of, and may only be waived by,
the Company by notice in writing to the Acquirer.
3.5 Effect of waiver: If a party waives a Condition in accordance with this clause 3, that waiver
does not:
(a) preclude that party from bringing a claim against the other party for any breach of
this agreement; or
(b) constitute a waiver of any other Condition.
3.6 If a Condition is not fulfilled or waived: If:
(a) a Condition set out in clause 3.1(a) to 3.1(e) inclusive and clause 3.1(h) has not
been fulfilled by the Relevant Date and is not waived (where capable of waiver);
(b) a Condition set out in clause 3.1(f) or 3.1(g) is not fulfilled at the End Date;
(c) the Implementation Date does not occur on or prior to the End Date; or
(d) there is an act, failure to act, event or occurrence which will prevent a Condition
being fulfilled:
(i) in the case of a Condition in clause 3.1(a) to 3.1(e) inclusive or clause
3.1(h), by the Relevant Date; or
(ii) in the case of a Condition in clause 3.1(f) or 3.1(g), at the End Date,
(and the breach or non-fulfilment of the Condition which would otherwise occur has
not been waived),
the parties:
(e) must consult in good faith for at least five Business Days to determine whether the
Scheme may proceed by way of alternative means or method so as to achieve a
commercial outcome which reflects the Scheme; and
(f) may agree to extend the Relevant Date or the End Date, or both.
3.7 Specific obligations relating to the Regulatory Conditions: Without limiting clause 3.3,
the Acquirer must:
(a) if not already submitted prior to the date of this agreement, submit the Regulatory
Application in respect of the Regulatory Condition (NZCC) no later than the date
that is 10 Business Days after the date of this agreement in the form provided to
and commented on by the Company prior to the date of this agreement;
(b) promptly provide to NZCC and/or ACCC all notices, information and documents
requested by NZCC and/or ACCC in connection with the Regulatory Applications
and satisfaction of the Regulatory Conditions;
3447-4830-2652 v2 19
(c) promptly and diligently progress the Regulatory Applications (including by
responding to NZCC and/or ACCC in a fulsome and timely manner and, where
applicable, in compliance with relevant timeframes, in respect of all its questions
and other correspondences);
(d) provide the Company with copies of any material written communication, and notify
the Company of any material oral communication, received by the Acquirer from
NZCC and/or ACCC in relation to the Regulatory Conditions;
(e) consult with the Company in advance with respect to any material filing, material
notice or material information to be provided to, or material correspondence to be
had with, NZCC and/or ACCC;
(f) not resile from or change, with a consequence that might be adverse to its
prospects of satisfying the Regulatory Conditions, any of the assurances or other
commitments provided by the Acquirer to NZCC and/or ACCC in or in connection
with the Regulatory Applications; and
(g) other than on termination of this agreement, not withdraw or vary (with a
consequence that might be adverse to its prospects of satisfying the Regulatory
Conditions), or procure such withdrawal or variation, of the Regulatory
Applications,
provided that, notwithstanding any other provision of this clause 3.7, the Acquirer may in
respect of any information that it reasonably considers to be commercially or competitively
sensitive information, provide on a counsel-only basis any such information it would
otherwise be required to provide to the Company under this clause 3.7
4. SCHEME BOOKLET
4.1 Company's obligations: The Company will in accordance with the Timetable (where
relevant):
(a) as soon as practicable following the date of this agreement prepare the Scheme
Booklet so that it contains:
(i) all information required by the Companies Act, the NZX Listing Rules and
any other applicable laws;
(ii) any information required by the Takeovers Panel in order for the
Company to obtain from the Takeovers Panel a Letter of Intention and
No-Objection Statement;
(iii) the responsibility statements referred to in clause 4.4; and
(iv) a statement by the Directors reflecting the recommendation and
undertaking set out in clause 8 (unless there has been a change of
recommendation, including where the Consideration is not within or
above the Independent Adviser's valuation range for the Shares);
(b) if not already appointed, appoint the Independent Adviser (including obtaining
approval from the Takeovers Panel for that appointment), and provide all
3447-4830-2652 v2 20
assistance and information that is reasonably requested by the Independent
Adviser to enable it to prepare the Independent Adviser's Report;
(c) provide the Acquirer with an initial draft of the Scheme Booklet (excluding the
Independent Adviser's Report) in a timely manner and so that the Acquirer has a
reasonable opportunity to review that draft, and consider in good faith all of the
reasonable comments of the Acquirer and its Representatives when preparing a
revised draft of the Scheme Booklet;
(d) as soon as practicable after preparation of an advanced draft of the Scheme
Booklet (excluding the Independent Adviser's Report) suitable for review by the
Takeovers Panel, provide that advanced draft to the Acquirer;
(e) as soon as practicable after receipt of the consent from the Acquirer referred to in
clause 4.2(e), provide the Takeovers Panel the advanced draft Scheme Booklet;
(f) keep the Acquirer reasonably informed in relation to any matters raised by the
Takeovers Panel in relation to the advanced draft of the Scheme Booklet and use
reasonable endeavours, in consultation with the Acquirer, to resolve any such
matters (provided that, where such matters relate to the Acquirer Information, the
Company will not take any steps to address them without the Acquirer’s written
consent, not to be unreasonably withheld);
(g) as soon as practicable after the Takeovers Panel has completed its review of the
advanced draft Scheme Booklet and the Takeovers Panel has provided a Letter of
Intention, procure that a meeting of the Board is convened to approve the Scheme
Booklet for lodgement with the Court and, subject to the Regulatory Conditions
being satisfied and the Initial Orders being granted and the terms of those orders,
for dispatch to Shareholders;
(h) promptly advise the Acquirer if the Company becomes aware:
(i) of new information which, had it been known at the time the Scheme
Booklet was prepared, should have been included in the Scheme Booklet
under applicable law;
(ii) that any part of the Scheme Booklet (other than the Independent
Adviser's Report or the Acquirer Information) is misleading or deceptive in
any material respect, including by omission; or
(iii) that information that was required to be disclosed in the Scheme Booklet
under applicable law was not included,
and, in any of those cases, if the Company becomes so aware at any time:
(iv) between the approval of the Scheme Booklet in accordance with clause
4.1(g) and the date of the Scheme Meeting, then, if considered by the
Company that supplementary disclosure is required, it will (after
consulting with the Acquirer as to the need for, and content and
presentation of, that supplementary disclosure) provide supplementary
disclosure to Shareholders in an appropriate and timely manner in
accordance with applicable law and will, if it considers it necessary or
appropriate: (A) seek the Court’s guidance in respect of the
3447-4830-2652 v2 21
supplementary disclosure; and (B) adjourn the Scheme Meeting to the
earliest date reasonably possible; or
(v) between the date of the Scheme Meeting and the Second Court Date,
then, if considered by the Company that supplementary disclosure is
required, it will (after consulting with the Acquirer as to the need for, and
content and presentation of, that supplementary disclosure) apply to the
Court for orders as to the procedure to be followed as to the provision of
supplementary disclosure to Shareholders and the effect on the approval
of the Scheme.
4.2 Acquirer obligations: Without limiting clause 2, the Acquirer must in accordance with the
Timetable (where relevant):
(a) as soon as reasonably practicable after the date of this agreement, prepare and
provide to the Company for inclusion in the Scheme Booklet information:
(i) about the Acquirer and the Acquirer Group;
(ii) about the funding arrangements the Acquirer has available to it in order
to fund the Consideration (provided that the Acquirer is not required to
disclose any commercial sensitive terms or information which may be
materially adverse to the Acquirer's competitive position if disclosed); and
(iii) equivalent to the information that would meet the requirements of
Schedule 1 to the Takeovers Code,
as required to be included in the Scheme Booklet by the Companies Act, the
Takeovers Panel (including under the Guidance Note), the NZX Listing Rules and
any other applicable laws;
(b) provide the Company with drafts (including successive drafts) of the information
referred to in clause 4.2(a) in a timely manner so that the Company has a
reasonable opportunity to review those drafts, and consider and take into account
in good faith all reasonable comments of the Company and its Representatives
when preparing revised drafts of that information;
(c) provide all assistance and information reasonably requested by the Independent
Adviser relating to the Acquirer to enable it to prepare the Independent Adviser's
Report;
(d) as soon as reasonably practicable after receipt of any draft of the Scheme Booklet
from the Company, review and provide comments on that draft;
(e) subject to clause 4.3, before the Company provides the Scheme Booklet to the
Takeovers Panel in accordance with clause 4.1(e), deliver to the Company written
consent from the Acquirer to the inclusion of the Acquirer Information in the
Scheme Booklet in the form and context it appears;
(f) before a draft of the Scheme Booklet is lodged with the Takeovers Panel, and
again before the Scheme Booklet is despatched to Shareholders, confirm to the
Company the accuracy and completeness of the Acquirer Information in the
3447-4830-2652 v2 22
Scheme Booklet, including that it does not contain any statement that is false or
misleading in any material respect including because of omission;
(g) immediately advise the Company if the Acquirer becomes aware at any time either:
(i) of new information which, had it been known at the time the Scheme
Booklet was prepared, should have been included in the Acquirer
Information;
(ii) that any part of the Acquirer Information is misleading or deceptive in a
material respect, including by omission; or
(iii) that information that was required to be disclosed as part of the Acquirer
Information under applicable law was not included,
and if the Acquirer provides such advice, the Company will comply with clauses
4.1(h)(iv) and 4.1(h)(v) (as applicable);
(h) not act in a manner inconsistent with obtaining Court approval for the Scheme,
provided that this sub-clause (h) does not limit the exercise by the Acquirer of its
rights under this agreement.
4.3 Acquirer confirmation and approval: If the Acquirer requires any change to be made to
the form or content of the Acquirer Information as a condition of giving its consent as referred
to in clause 4.2(e), or the confirmation referred to in clause 4.2(f), then:
(a) if the Company disagrees with the change, the parties must consult in good faith
about the change and the reasons for it with a view to agreeing an alternative
change that satisfies both parties; and
(b) if the parties are unable to reach agreement, the Company must make such
changes to the Acquirer Information as the Acquirer reasonably requires.
4.4 Responsibility statements: The Scheme Booklet must contain responsibility statements, in
a form to be agreed between the Acquirer and the Company, to the effect that:
(a) the Company has provided, and is responsible for, the Company Information in the
Scheme Booklet, and that none of the Acquirer Group or its respective
Representatives assumes any responsibility for the accuracy or completeness of
the Company Information;
(b) the Acquirer Group has provided, and is responsible for, the Acquirer Information,
and that none of the Bremworth Group or its respective Representatives assumes
any responsibility for the accuracy or completeness of the Acquirer Information;
and
(c) the Independent Adviser has provided and is responsible for the Independent
Adviser's Report, and that none of the Acquirer Group, the Bremworth Group or
their respective Representatives assumes any responsibility for the accuracy or
completeness of the Independent Adviser's Report.
3447-4830-2652 v2 23
5. SCHEME IMPLEMENTATION STEPS
5.1 Company's obligations: Without limiting clauses 2.4 and 2.5, the Company must use its
reasonable endeavours in the timeframes prescribed by the Timetable (or otherwise as soon
as reasonably practicable) to:
(a) before the First Court Date, in consultation in good faith with the Acquirer, apply to
the Takeovers Panel for a Letter of Intention;
(b) without limiting sub-clause 5.1(a), the Company must:
(i) prior to sending any material correspondence to the Takeovers Panel
relating to the Scheme (other than correspondence relating to a
Competing Proposal or the actual or purported termination of this
agreement or any claim under, or disagreement or dispute between the
parties in respect of this agreement or the Transaction), provide the
Acquirer with a draft of that correspondence and consider in good faith all
of the reasonable comments of the Acquirer and its Representatives on
that correspondence;
(ii) promptly provide the Acquirer with a copy of all material correspondence
to and from the Takeovers Panel relating to the Scheme (other than
correspondence relating to a Competing Proposal); and
(i) keep the Acquirer reasonably informed of any issues raised by the
Takeovers Panel in connection with the Scheme Booklet or the Scheme
(other than issues relating to a Competing Proposal or the actual or
purported termination of this agreement or any claim under, or
disagreement or dispute between the parties in respect of this agreement
or the Transaction) and consider in good faith all of the reasonable
comments of the Acquirer and its Representatives on those issues;
(c) apply to the Court for Initial Orders under section 236(2) of the Companies Act
convening the Scheme Meeting, and if the Court grants those orders, dispatch the
Scheme Booklet to Shareholders and hold the Scheme Meeting (including by
putting the Scheme Resolution to a vote) in accordance with, and otherwise
comply in all respects with, those Initial Orders;
(d) if the Initial Orders are granted and sealed by the Court, promptly deliver a copy of
the Initial Orders to the Registrar for registration in accordance with section 236(4)
of the Companies Act (and, in accordance with the requirements of the Companies
Act, by no later than 10 Business Days after the date the Initial Orders are
granted);
(e) as soon as reasonably practicable following the date the Regulatory Conditions are
satisfied, lodge a copy of the Scheme Booklet with NZX in accordance with the
NZX Listing Rules prior to sending the Scheme Booklet to Scheme Shareholders;
(f) if the Scheme Resolution is passed by the requisite majorities of Shareholders as
set out under section 236A(4) of the Companies Act, promptly:
(i) apply to the Takeovers Panel for the production of a No-Objection
Statement;
3447-4830-2652 v2 24
(ii) seek the Court's approval of the Final Orders;
(g) if the Scheme Resolution is passed by the requisite majorities of Shareholders and
if requested by the Acquirer, promptly enter into, and use reasonable endeavours
to procure that the Company's share registrar promptly enters into, an escrow
agreement relating to the holding by the Company's share registrar of the
aggregate Consideration and Capital Return on escrow pending implementation of
the Scheme, on terms reasonably acceptable to the parties to that agreement;
(h) if the Court approves the Scheme in accordance with section 236(1) of the
Companies Act (and once the Final Orders are sealed by the Court):
(i) promptly deliver to the Registrar for registration a copy of the Final
Orders for registration in accordance with section 236(4) of the
Companies Act (and, in accordance with the requirements of the
Companies Act, by no later than 10 working days (as defined in the
Companies Act) after the date the Final Orders are granted);
(ii) do all other things contemplated of it under the Scheme and within its
power to give full effect to the Scheme Plan and the Final Orders; and
(iii) if all of the remaining Conditions have been fulfilled or waived:
(aa) use its reasonable endeavours to procure that the NZX
suspend trading in the Shares from the close of trading on the
date that is one Business Day after the Final Orders Date or
such other date agreed between the Acquirer and the Company
in writing;
(bb) close the Register as at the Record Date to determine the
identity of the Scheme Shareholders and their entitlements to
the Consideration;
(cc) no later than 9.00am on the Second Court Date, provide the
Acquirer and the Court with a Pro Forma Cash Balance;
(dd) subject to the Acquirer satisfying its obligations under clause
5.2(d), effect the transfer of the Scheme Shares (other than any
Scheme Shares repurchased and cancelled by the Company
pursuant to the Scheme Buyback) to the Acquirer in
accordance with the Scheme on the Implementation Date;
(ee) promptly provide the Acquirer with a copy of all material
correspondence to and from NZX and keep the Acquirer
reasonably informed of any issues raised by NZX and consult
with the Acquirer to resolve any such issues expeditiously; and
(ff) do all other things contemplated of it under the Scheme and all
other things (if any) within its power as may be reasonably
necessary for the implementation of the Transaction on a basis
consistent with this agreement or necessary for the Company to
lawfully give effect to the Scheme and the orders of the Court.
3447-4830-2652 v2 25
5.2 Acquirer's obligations: Without limiting clauses 2.4 and 2.5, the Acquirer must:
(a) on the date of this agreement, deliver to the Company a copy of the Deed Poll duly
executed by the Acquirer;
(b) if it or its Representatives solicit proxies for the Scheme Meeting, communicate
with Shareholders in connection with the Scheme, or otherwise engage in
Shareholder canvassing activities in respect of the Scheme:
(i) undertake such proxy solicitation, Shareholder communications or
canvassing activities in compliance with all applicable laws, including the
FMCA and the Fair Trading Act 1986;
(ii) provide to the Company copies of all written communications or
correspondence to be provided to Shareholders, prior to being sent to
Shareholders and allow a reasonable time for comment from the
Company;
(iii) provide to the Company copies of all call scripts being used for
Shareholder canvassing activities promptly before the form of those
scripts is approved for use and allow a reasonable time for comment from
the Company, and the Acquirer must consider and take into account in
good faith all reasonable comments on such communications,
correspondence and call scripts;
(c) without limiting clause 7.2, if requested by the Company, procure that it is
represented by counsel at the Court hearings convened for the purposes of
considering the Initial Orders and the Final Orders, at which (through its counsel),
the Acquirer will undertake (if requested by the Court) to do all such things and
take all such steps within its power as are necessary in order to ensure the
fulfilment of its obligations under this agreement and the Scheme; and
(d) if the Court approves the Scheme in accordance with section 236(1) of the
Companies Act (and once the Final Orders are sealed by the Court), do all other
things contemplated by or necessary to give full effect to the Scheme Plan and the
Final Orders (including using reasonable endeavours to ensure that the Conditions
have been satisfied in accordance with clause 3, and providing the Consideration
in accordance with the Scheme and the Final Orders).
5.3 Obligation on becoming a Shareholder: If, prior to the date of the Scheme Meeting, the
Acquirer or any Associate of the Acquirer acquires beneficial ownership of, or effective
control over, any Shares, the Acquirer must (or must procure the Associate to, as the case
may be) as soon as reasonably practicable enter into a deed poll in the form set out in
Appendix B to the Schemes Guidance Note under which the Acquirer (or Associate, as the
case may be) agrees to vote the relevant Shares in favour of the Scheme Resolution at the
Scheme Meeting.
3447-4830-2652 v2 26
6. COMPANY'S OTHER IMPLEMENTATION OBLIGATIONS
6.1 Information about Shareholders: The Company must:
(a) comply with any reasonable requests by the Acquirer to require disclosure of
information in accordance with sections 290 and 291 of the FMCA, subject to its
statutory and contractual obligations, and give the Acquirer the information
obtained as a result of requiring such disclosure; and
(b) procure that its share registry provides to the Acquirer details of the Register and
all other information about the Shareholders which the Acquirer reasonably
requires in order to:
(i) canvas approval of the Scheme by Shareholders; or
(ii) facilitate the provision by the Acquirer of the Consideration in accordance
with this agreement, the Scheme and the Deed Poll.
6.2 Promotion of Transaction:
(a) During the period commencing on the date of this agreement and ending on the
first to occur of: (i) the termination of this agreement; and (ii) and the End Date, the
Company will provide all reasonable cooperation to the Acquirer in promoting the
merits of the Transaction to Shareholders, including:
(i) encouraging Shareholders to exercise their rights to vote on the
resolution to approve the Scheme at the Scheme Meeting; and
(ii) procuring that senior executives of the Bremworth Group, as may be
reasonably available, meet with key Shareholders if reasonably
requested to do so by the Acquirer; and
(iii) undertaking, in cooperation with the Acquirer, other reasonable actions to
promote the affirmative vote of Shareholders for the Transaction, as
reasonably requested by the Acquirer,
subject to there being no Superior Proposal and provided the Independent
Adviser's Report has first concluded that the Consideration is within or above the
Independent Adviser's valuation range for the Shares.
(b) The Acquirer agrees to pay all of the Bremworth Group's reasonable out of pocket
costs incurred in connection with promoting the Transaction to Shareholders up to
a maximum of $50,000.
6.3 Board changes: Subject to the Consideration having been paid to the Scheme
Shareholders, the Company must procure that:
(a) such persons as the Acquirer nominates by notice to the Company no later than
four Business Days before the Implementation Date and who have provided to the
Company signed consent(s) to act by that time (as well as any other information
required to be provided to the Registrar) are appointed as additional directors of
the Company and/or such other members of the Bremworth Group specified in the
notice, on the Implementation Date (by no later than 5:00pm); and
3447-4830-2652 v2 27
(b) unless otherwise agreed by the Acquirer in writing, each director of each member
of the Company and/or other member of the Bremworth Group, other than those
appointed in accordance with clause 6.3(a), resigns as a director with effect from
the Implementation Date (by no later than 5:00pm on the Implementation Date)
and acknowledges in writing that he or she has no claim against any member of
the Bremworth Group other than for accrued but unpaid directors fees and
expenses or under the D&O Run-off Policy.
6.4 Tax ruling: Promptly following entry into this agreement, the Company agrees to seek a
private binding ruling for the 2025 tax year on the New Zealand tax implications of the
insurance proceeds received in relation to flooding of the Napier site on terms acceptable to
the Company and the Acquirer, acting reasonably.
7. COURT PROCEEDINGS
7.1 Court documents:
(a) In relation to each Court application made in relation to the Scheme, including any
appeal, the Company must give the Acquirer drafts of all documents required to be
given by the Company to the Court (including the originating applications,
affidavits, memoranda, submissions and draft Court orders) at a reasonable time
before they are due to be submitted to the Court (and in any event, except in
situations of urgency, not less than 72 hours before submission) and must consider
in good faith whether to incorporate any reasonable comments of the Acquirer and
its Representatives on those documents.
(b) The Company must not provide the Court with any Court orders (whether in draft or
not) or applications for Court orders, or consent to any changes to any Court
orders, without the Acquirer having approved (acting reasonably) in writing such
documents being submitted to the Court or such changes being consented to.
(c) If requested by the Company, the Acquirer will promptly provide an affidavit in
support of any Court application made in connection with the Scheme that is sworn
by a director or other authorised representative of the Acquirer and confirms
relevant information related to the Acquirer (which may include, without limitation,
the Acquirer's ability to fund the payment of the Consideration, its intentions
regarding the Company following implementation of the Scheme, and agreement to
be bound by the Final Orders).
7.2 Representation: In relation to each Court application or appearance made in relation to the
Scheme, including any appeal, the Company consents to the separate representation of the
Acquirer by counsel and the Acquirer may appear and be represented in relation to the Court
applications or other appearances relating to the Scheme.
7.3 Court proceedings and conditionality: If the Court does not make any order sought by
the Company under clause 5 (the "Decision"), primarily due to the lack of satisfaction of, or
the potential timing for satisfaction of (or where capable of waiver, waiver of) any Condition,
then the Company must promptly make a further application for the relevant Decision as
soon as practicable after the parties satisfying the steps or matters specified by the Court or
apparent from its directors or reasons, as required, or desirable, in order to grant the relevant
Decision.
3447-4830-2652 v2 28
7.4 Appeal if orders not made: If the Court does not make the relevant Decision due to
reasons not contemplated by clause 7.3, then:
(a) the Company and the Acquirer must consult in good faith as to the effect of the
refusal and whether to appeal the Decision, and, where applicable, whether
amendments need to be made to the Timetable and/or the End Date;
(b) if within 10 Business Days after the date of the Decision the parties agree to
appeal the Decision or either of those parties obtains an opinion from an
independent King's Counsel, practising in the field of corporate and securities law
litigation, to the effect that there is a reasonable prospect of successfully appealing
the Decision, then:
(i) the Company must appeal the Court’s decision within the timeframes set
out in rule 29 of the Court of Appeal (Civil) Rules 2005;
(ii) the cost of any such appeal is to be borne:
(aa) if the Company and Acquirer agreed to appeal the Decision,
equally between the parties; or
(bb) if the Company and the Acquirer did not agree to appeal the
Decision, by the party who requires that the appeal is pursued;
(iii) if the End Date would otherwise occur before the appeal is finally
determined, the End Date is deferred to the date that is 20 Business
Days after the date that the appeal from the Decision is finally determined
provided, or such other date as agreed between the Acquirer and the
Company in writing; and
(iv) if the appeal is successful and the relevant order is made, the End Date
is further deferred (excluding any deferral under sub-clause (iii)) by the
number of Business Days contemplated by the Timetable between the
Final Orders Date and the Implementation Date (inclusive), or such other
date as agreed between the Acquirer and the Company in writing,
provided that in no circumstances may the End Date be extended under
subclauses (iii) or (iv) to a date which is later than 15 months after the date of this
agreement without the prior written consent of the Acquirer.
8. RECOMMENDATION AND VOTING INTENTIONS
8.1 Recommendation and voting: The Company must ensure that each Director:
(a) recommends that Shareholders vote in favour of the Scheme; and
(b) undertakes to vote, or procure the voting of, all of the Shares held or controlled by
him or her in favour of the Scheme (provided that, for clarity, this does not require
any Director to enter into a voting or other agreement with the Acquirer in relation
to the voting of all Shares held or controlled by him or her or his or her Associates
at the Scheme Meeting),
3447-4830-2652 v2 29
in each case subject to:
(c) there being no Superior Proposal; and
(d) the Independent Adviser's Report concluding that the Consideration is within or
above the Independent Adviser's valuation range for the Shares.
8.2 Change to recommendation or voting intentions: The Company must ensure that no
Director changes, qualifies or withdraws the recommendation or undertaking referred to in
clause 8.1 or makes any statement inconsistent with that recommendation or that
undertaking, unless:
(a) the Company receives a Superior Proposal; or
(b) the Independent Adviser's Report concludes that the Consideration is below the
Independent Adviser's valuation range for the Shares,
and, in any of the above cases, such change, qualification, withdrawal or statement shall not
give rise to a termination right under clause 14 or constitute a circumstance which would give
rise to payment of the Break Fee under clause 15.2(b). The:
(c) taking by the Company of any action permitted by clause 13.8(a); and
(d) making of an announcement to NZX under clause 13.8(b), provided such
announcement is limited to advising of the receipt of a Competing Proposal, the
fact that the Acquirer has an opportunity to provide a Counter Proposal to the
Competing Proposal during the Matching Period and, if applicable, advising of any
associated delay in the Timetable,
will not constitute a change of, qualification to, withdrawal of, or statement inconsistent with,
the recommendation or undertaking referred to in clause 8.1.
9. ACCESS, INFORMATION AND CONDUCT OF BUSINESS
9.1 Access and information: From the date of this agreement until the Implementation Date,
the Company must:
(a) procure that the Acquirer and its Representatives are given reasonable access to
the properties, books and records, senior management of the Bremworth Group,
and any other information about the Business reasonably required by the Acquirer
or its Representatives during normal business hours at mutually convenient times,
and on reasonable notice to the Company for the purposes of:
(i) implementing the Scheme and enabling the Acquirer to prepare for the
transition of ownership of the Bremworth Group to the Acquirer; and
(ii) any other purpose agreed between the Company and the Acquirer in
writing,
except to the extent that the provision of such access is prohibited by law or any
confidentiality obligations owed by any member of the Bremworth Group to third
parties and provided that:
3447-4830-2652 v2 30
(iii) the Acquirer will focus on material issues, having regard to management
commitments and the impact of information requests on the Company's
Business;
(iv) providing access and/or information pursuant to this clause 9.1(a) does
not, in the opinion of the Company (acting reasonably), result in
unreasonable disruptions to the Company's business or require the
Company to make further disclosure to any other entity or Government
Agency;
(v) nothing in this clause 9.1(a) will require the Company to provide
information concerning its directors' and management's consideration of
the Scheme or any Competing Proposal or require the disclosure of any
document that would compromise the Bremworth Group's legal
professional privilege;
(vi) all requests for such access shall be directed to the Company's CEO or
such other persons as the Company may designate in writing from time
to time (collectively, the “Designated Contacts”); and
(vii) without limitation to the Confidentiality Agreement:
(aa) other than the Designated Contacts, the Acquirer is not
authorised to and shall not (and shall cause its Representatives
and Related Companies not to) contact any director, officer,
employee, customer, supplier, distributor, landlord, lender, or
other material business relation of the Bremworth Group in
connection with the Transaction prior to the Scheme becoming
Effective without the prior written consent of the Company; and
(bb) the Acquirer must not meet with, correspond with, or otherwise
engage with, senior executives of the Bremworth Group
regarding their continued employment or the terms of their
continued employment after the Implementation Date without
the Company's prior written consent (which consent must be
provided by a Director);
(b) procure that one or more members of senior management or the Board (as
appropriate) of the Bremworth Group meet with the Acquirer and/or its
Representatives at such times as the Acquirer reasonably requests (either in
person or by teleconference), to keep the Acquirer updated on material
developments in relation to the Business and to discuss and resolve matters
arising in relation to this agreement or the Transaction;
(c) provide the Acquirer with copies of minutes and papers provided to the Board
within three Business Days after they are provided to Board members, however,
the Company may redact information from such papers to the extent it is
commercially sensitive or relates to the Transaction or a Competing Proposal; and
(d) within two Business Days of the end of each month, and otherwise promptly
following any request by the Acquirer, advise the Acquirer of the Company's Cash
balance,
3447-4830-2652 v2 31
provided that to the extent that any information is provided under this clause 9.1 that is not
publicly available, it will be kept confidential by any recipient of that information in
accordance with the confidentiality agreement referred to in clause 21.4, and to the extent
information is competitively or commercially sensitive, the Acquirer’s access to that
information will be restricted prior to implementation of the Scheme.
9.2 Conduct of business; positive obligations: From the date of this agreement until and
including the Implementation Date, the Company must procure that:
(a) the Business is carried on as a going concern and in the ordinary course of
business. Without limiting this clause 9.2(a), the Company must continue to pay its
staff in accordance with the relevant contracted terms and pay its creditors and
collect receivables in the ordinary course of business in all material respects;
(b) the Business uses reasonable endeavours to maintain an appropriate level of
inventory and other working capital, as required to meet the operating needs of the
Business and, without limitation, must procure that the Company is not operated in
a manner intended to artificially increase the amount of Cash available for the
Capital Return over and above what would have been available had the Business
been operated in the ordinary course (including by artificially reducing inventory,
artificially lowering pricing, artificially accelerating the collection of receivables, or
artificially delaying the payment of creditors, in each case for the purpose of
increasing the Cash amount available for the Capital Return);
(c) the management of each member of the Bremworth Group use reasonable efforts
to preserve intact the good name and reputation of the Bremworth Group as well
as its customer, supplier and employee relationships;
(d) subject to clause 9.3, it does not deviate in any material respects from the
budgeted capital investments identified on pages 62 and 63 of Data Room
document 01.01;
(e) the Acquirer is promptly notified of:
(i) any claim that is made or legal proceedings instituted against the
Company, or any other member of the Bremworth Group, or any director
or employee of the Company or of any other member of the Bremworth
Group (of which it becomes aware), other than any claim or legal
proceeding that has potential liability which is less than $100,000;
(ii) any actual or threatened material enquiries or investigations by any
Government Agency in relation to the Business (including in relation to
Tax) and any material correspondence with any Government Agency in
relation to the Business;
(f) all insurance policies currently in force at the date of this agreement in favour of the
Bremworth Group and the Business are maintained on materially the same terms
and conditions, provided that no policy shall be renewed for a term beyond the End
Date without the prior written consent of the Acquirer.
3447-4830-2652 v2 32
9.3 Conduct of business; negative obligations: From the date of this agreement until and
including the Implementation Date, the Company must procure that it, and each other
member of the Bremworth Group, does not:
(a) create or incur any liability or indebtedness (whether contingent or otherwise, and
including by way of drawing down on any facility), except liabilities or indebtedness
incurred in the ordinary course of business and not exceeding (in aggregate)
$250,000; or
(b) create or otherwise permit to arise any Encumbrance over any of its assets (other
than to secure any indebtedness permitted by this agreement);
(c) commence, compromise or settle any litigation, arbitration or other similar
proceedings for an amount exceeding $100,000;
(d) provide any guarantee of, or security for, or indemnity in connection with the
obligations of any person other than a member of the Bremworth Group, other than
in the ordinary course of business;
(e) acquire any interest in "sensitive land" for the purposes of the Overseas Investment
Act 2005;
(f) exceed borrowing or cash reserve limitations as established by any financier of the
Bremworth Group;
(g) make any payment of, or incur (or enter into), any unbudgeted capital expenditure,
except in the ordinary course of business, other than payments not exceeding in
aggregate $150,000;
(h) enter into, vary or terminate any contract, or series of related contracts, where: (A)
the aggregate payments by the Bremworth Group under the term of that contract
exceed $500,000 or (B) the term of the contract exceeds 12 months;
(i) change its method of accounting for financial reporting purposes, unless required
to do so in order to comply with any applicable accounting standards;
(j) enter into, amend or close out any material foreign exchange, interest rate swap,
derivative or hedge other than in the ordinary course of business and consistent
with past practice;
(k) undertake any acquisition or divestment activities other than in the ordinary course
of business and for full value (unless the Acquirer’s prior written consent is
obtained);
(l) enter into a contract to engage any new employee or permanent contractor with a
base salary of over $100,000 per annum (excluding bonuses or other incentive
payments or arrangements), other than for routine replacement;
(m) change the remuneration or other conditions of employment of any director,
employee or permanent contractor of a Bremworth Group Member with a total
salary of more than $70,000 per annum; or
3447-4830-2652 v2 33
(n) incur any liability for Tax outside of the ordinary course of business, make any
material Tax election, or material change in the conduct of its Tax affairs (including,
for the avoidance of doubt, agreeing to extend or otherwise delay the application of
a time bar in respect of Tax), settle or compromise any material Tax liability or
settle any material Tax dispute.
9.4 Exceptions: Nothing in clauses 9.2 or 9.3 restricts the Company (or any other member of
the Bremworth Group) from doing anything which is:
(a) expressly contemplated, permitted or required by this agreement or required to
give effect to the Scheme;
(b) necessary for the Company (or any other member of the Bremworth Group) to
perform or comply with its existing contractual obligations;
(c) reasonably necessary for the Company (or any other member of the Bremworth
Group) to comply with any law or any regulatory requirement or direction of a
Government Agency;
(d) reasonably and prudently required for the Company (or any other member of the
Bremworth Group) to preserve or maintain the continuity of the Business or
respond to any emergency, act of god or other disaster;
(e) fairly disclosed in the Due Diligence Materials (including in any operating or capex
budgets disclosed in the Due Diligence Materials) or by the Company through the
NZX markets announcements platform before the date of this agreement;
(f) a change to the remuneration or other conditions of employment of any director,
employee or permanent contractor of a Bremworth Group Member where such
changes are made in accordance with the Bremworth Group's normal salary review
procedures or are consistent with the normal business practices employed by the
Bremworth Group;
(g) undertaken in response to a Competing Proposal, but only to the extent that the
action is expressly permitted by clause 13; or
(h) approved in writing by the Acquirer, such approval not to be unreasonably
withheld, conditioned or delayed.
9.5 Employee Shares: The parties acknowledge and agree that:
(a) as at the date of this agreement, 1,882,421 LTI Shares have been issued by the
Company to Bremworth Share Scheme Limited, 1,472,154 of which have either
expired or been forfeited, with the further 410,267 remaining unvested and which
are held on trust by Bremworth Share Scheme Limited for participants in
accordance with the terms of the LTI Scheme;
(b) the Company will acquire and cancel the 1,472,154 shares which have been
forfeited but which remain legally held by Bremworth Share Scheme Limited prior
to the Final Orders Date; and
(c) the LTI Scheme is terminated with effect on and from the Implementation Date.
3447-4830-2652 v2 34
9.6 Scoping of Remediation Issues
(a) Within 30 Business Days following the date of this agreement, each of the
Company and the Acquirer may obtain advice from their own appropriately
qualified consultant in relation to the current condition and full scope of the
Potential Remediation Issues, and will promptly provide the other party with a copy
of any such advice. If either party does not provide its advice within that period, the
other party’s advice will be taken as the advice for the purposes of this clause and
the parties must meet under clause 9.6(b) within 5 Business Days thereafter.
(b) Within 5 Business Days after both parties have exchanged their consultant’s
advice, the Company and the Acquirer will, acting reasonably and in good faith,
meet to discuss that advice and seek to agree the scope of works required to
address the Potential Remediation Issues based on:
(i) compliance with applicable law (including the HSWA Standards);
(ii) compliance with the Tenant's obligations under the Lease including
obligations in relation to removal or management of asbestos; and
(iii) Good Industry Practice, including whether it would be reasonable for
such identified issues to be addressed through ongoing and regular
maintenance, in either case having regard to the age and use of the
premises, the term and the tenant's obligations under the lease.
(c) If the Company and the Acquirer cannot agree the scope of works within 10
Business Days of that meeting, either party may require the appointment of an
Independent Expert in accordance with clause 9.7.
(d) The Company will provide the Acquirer (including the Acquirer’s contractors and
consultants) with all necessary access to the premises demised under the Lease in
order to undertake all activities contemplated under clause 9.6 – 9.8.
9.7 Independent Expert
(a) The Company and the Acquirer will use reasonable endeavours to agree on the
appointment of an Independent Expert within 5 Business Days of clause 9.6(c)
applying. Failing agreement, either party may request the President of the Property
Institute of New Zealand to appoint the Independent Expert.
(b) The Company and the Acquirer will use all reasonable endeavours to procure the
Independent Expert enters into a deed of impartiality in favour of both parties.
(c) The Independent Expert will:
(i) act as an expert and not as an arbitrator;
(ii) consider all submissions, reports and supporting materials provided by
the parties;
(iii) undertake such inspections, testing and enquiries as reasonably
required; and
3447-4830-2652 v2 35
(iv) determine the extent of the Potential Remediation Issues and the scope
of works required to address those issues in accordance with 9.6(b).
(d) The Independent Expert will provide a draft determination to both parties for
comment, and will issue a final binding report within 20 Business Days of
appointment (subject only to extension for testing reasonably required).
(e) The costs of the Independent Expert will be borne equally by the Company and the
Acquirer.
9.8 Remediation
(a) As soon as reasonably practicable following agreement or determination of the
scope of works under clauses 9.6 or 9.7, the Company will obtain proposals from
reputable and appropriately licensed contractors to undertake the required works
(the “Remediation Project”) and will provide the Acquirer with full details of those
proposals (including the quoted costs, it being acknowledged that any prior
estimate of costs is disregarded).
(b) The Company will consult with, and obtain the Acquirer’s consent (not to be
unreasonably withheld or delayed), to the appointment of the contractor.
(c) The Company will:
(i) use reasonable endeavours to procure that the appointed contractor
provides customary warranties (having regard to the nature of the work
carried out and Good Industry Practice) as to workmanship and
compliance with applicable law, such warranties to be enforceable by the
Company and assignable to the Acquirer;
(ii) procure that the Remediation Project is carried out with due skill, care
and diligence, in accordance with applicable law, HSWA Standards,
Good Industry Practice, and the Tenant’s obligations under the Lease;
(iii) provide the Acquirer with copies of all test results, air monitoring records,
waste disposal certificates, and any statutory notifications provided to
WorkSafe in connection with the Remediation Project, promptly upon
receipt or issue; and
(iv) keep the Acquirer informed of all material developments in respect of the
Remediation Project (including providing the Acquirer with copies of all
material communications with the appointed contractor).
(d) On completion of the Remediation Project:
(i) the Company must procure an independent licensed asbestos assessor
(being a person licensed as an asbestos assessor under the HSWA
Standards) to issue any lawfully required clearance certificate confirming
the works have been properly completed in accordance with the HSWA
Standards; and
(ii) a copy of the certificate, together with supporting test results and
monitoring data, must be provided to the Acquirer.
3447-4830-2652 v2 36
(e) If the Remediation Project is unlikely (in the Acquirer’s reasonable opinion) to be
completed before the Final Orders Date:
(i) not later than 15 Business Days prior to the Final Orders Date, the
Company must obtain from the contractor an updated written estimate of
the remaining costs to complete the Remediation Project, prepared within
the preceding 10 Business Days, and provide it to the Acquirer; and
(ii) that amount (less any amount contractually assumed by the landlord of
the relevant property), once confirmed by an independent quantity
surveyor or other suitably qualified expert agreed between the parties
(acting reasonably), will be the “Remaining Remediation Costs”.
10. BUSINESS CONTRACTS AND LEASES
10.1 Acknowledgement: The parties acknowledge that the Bremworth Group's leases and
contracts may contain provisions requiring:
(a) the consent of the counterparty to that lease or contract to a change of control,
"deemed assignment" or similar that arises under the terms of that lease or
contract as a result of the Transaction; or
(b) a waiver from the counterparty to that lease or contract of any review, termination,
cancellation or similar right which will arise or otherwise become enforceable under
the terms of that lease or contract as a result of the Transaction,
(each a "Change of Control Consent").
10.2 List of Change of Control Consent requirements: The parties will, as soon as practicable
after the date of this Agreement, work in good faith to develop both:
(a) a list of Change of Control Consent requirements; and
(b) a proposed course of action to initiate contact with such parties and request that
they provide any consents, confirmations or waivers required or appropriate in
response to such Change of Control Consent.
10.3 Change of Control Consent: Subject to clause 10.4:
(a) the Company will, and will procure that each member of the Bremworth Group will,
use all reasonable endeavours to obtain each Change of Control Consent that the
parties have identified pursuant to clause 10.2 and which the Acquirer requests
that it obtain; and
(b) the Acquirer must cooperate with and use its reasonable endeavours to assist the
Company to obtain each required Change of Control Consent, including to provide
all information reasonably required to obtain a Change of Control Consent
requested by the Acquirer under clause 10.2(a) (but without contacting any
contractual counterparties directly without the Company's consent).
10.4 No obligation to pay money: Nothing in this clause 10 will require either party to pay any
money or provide any other valuable consideration to or for the benefit of any person.
3447-4830-2652 v2 37
10.5 Scheme to proceed: For the avoidance of doubt, the implementation of the Scheme will not
be delayed if all or any required Change of Control Consents have not been obtained on or
before the Implementation Date.
11. WARRANTIES AND UNDERTAKINGS
11.1 Company Warranties and undertakings:
(a) The Company represents and warrants to the Acquirer that, subject to the
limitations in this agreement, each of the Company Warranties is true, accurate
and not misleading as at:
(i) the date of this agreement;
(ii) the date that the Scheme Booklet is sent to Shareholders;
(iii) immediately prior to the last affidavits being filed in respect of the Final
Orders; and
(iv) 8:00am on the Implementation Date,
except where a Company Warranty refers to being given at a specific date, such
Company Warranty is given only at that date.
(b) The Company undertakes to the Acquirer to comply with the Company
Undertakings.
(c) The Company Warranties (other than the Fundamental Warranties, which are not
given subject to any qualifications) are given on the basis that they will take effect
subject to and are qualified by any matter:
(i) expressly provided for in this agreement;
(ii) fairly disclosed in the Due Diligence Materials or by the Company through
the NZX market announcements platform before the date of this
agreement; or
(iii) recorded as at the date two Business Days prior to the date of this
agreement, in a public register or in publicly searchable records held by
the Registrar, the Intellectual Property Office of New Zealand, the High
Court of New Zealand, the New Zealand Personal Property Securities
Register or Land Information New Zealand; or
(iv) with the actual knowledge of the Acquirer or any of its employees who
have been involved in the assessment and / or negotiation of the
Transaction.
(d) No warranty or representation is given by or on behalf of the Company, the
Acquirer Guarantor and the Acquirer may not bring any claim, with respect to any
information that is a forecast, projection, estimate, opinion or other forward looking
statement as to the future performance, financial condition, results of operations,
strategy and plans of the Bremworth Group, in each case whether contained in the
Due Diligence Material or otherwise.
3447-4830-2652 v2 38
(e) The parties agree that, for the purposes of section 5D of the Fair Trading Act 1986
and section 43 of the Consumer Guarantees Act 1993, the Scheme Shares are
being acquired in trade, the parties are all in trade and, to the maximum extent
permitted by law, without limiting clause 11.6, the parties agree to expressly
contract out of any right to bring a claim against the other party under any of the
following New Zealand laws or any corresponding or similar provision of any
legislation in any relevant jurisdiction or any other applicable laws (and agree that it
is fair and reasonable to exclude their application);
(i) the Fair Trading Act 1986 (including sections 9, 12A, 13 and 14(1));
(ii) the Consumer Guarantees Act 1993; and
(iii) the Financial Markets Conduct Act 2013.
(f) The parties have each been able to fully negotiate the terms of this agreement and
have each been represented by and received advice from a lawyer during the
negotiations leading to this agreement.
(g) The Company agrees with the Acquirer (in its own right and separately as trustee
or nominee on behalf of each of the other Acquirer Indemnified Persons) to
indemnify the Acquirer Indemnified Persons from any claim, action or Loss directly
incurred or suffered by the Acquirer or any of the other Acquirer Indemnified
Persons as a result of any breach of any of the Company Warranties or Company
Undertakings.
11.2 Acquirer warranties and undertakings:
(a) The Acquirer represents and warrants to the Company that, subject to the
limitations in this agreement, each of the Acquirer Warranties is true, accurate and
not misleading as at:
(i) the date of this agreement;
(ii) the date that the Scheme Booklet is sent to Shareholders;
(iii) immediately prior to the last affidavits being filed in respect of the Final
Orders; and
(iv) 8:00am on the Implementation Date.
(b) The Acquirer undertakes to the Company to comply with the Acquirer
Undertakings.
(c) The Acquirer agrees with the Company (in its own right and separately as trustee
or nominee on behalf of each of the other Company Indemnified Persons) to
indemnify the Company Indemnified Persons from any claim, action or Loss
directly incurred or suffered by the Company or any of the other Company
Indemnified Persons as a result of any breach of any of the Acquirer Warranties or
Acquirer Undertakings.
11.3 No representations made on economic or future matters: Each party acknowledges and
agrees that the other party makes no representation or warranty other than as set out in this
3447-4830-2652 v2 39
clause 11 and, in particular, at no time has the other party made or given any representation
or warranty in relation to the achievability of:
(a) any economic, fiscal or other interpretations or evaluations by it; or
(b) future matters, including future or forecast costs, prices, revenues or profits.
11.4 Separate; independent: Each of the warranties given by each party are separate and
independent and, except as expressly provided, will not be limited by reference to any other
warranty.
11.5 Scheme becoming Effective: After 8.00am on the Implementation Date, any breach of the
warranties or the undertakings made or given under this clause 11 may only give rise to a
claim for damages and does not entitle a party to terminate this agreement.
11.6 Waiver of claims:
(a) The Acquirer waives and releases, and must procure that each member of the
Acquirer Group waives and releases, all rights and claims which it may have
against any Company Indemnified Person (other than the Company) in respect of:
(i) any misrepresentation, inaccuracy or omission in or from any information
or advice given by that Company Indemnified Person;
(ii) any breach of a representation, warranty or undertaking given by the
Company in this agreement;
(iii) the preparation of the Company Information or the Due Diligence
Material; or
(iv) any other act or omission in connection with this agreement or the
Transaction,
except where that Company Indemnified Person has engaged in wilful misconduct
or fraud.
(b) The parties acknowledge and agree that:
(i) the Company has sought and obtained the waiver and release in clause
11.6(a) as agent for and on behalf of each Company Indemnified Person
and may enforce the provisions of clause 11.6(a) on behalf of any
Company Indemnified Person;
(ii) any Company Indemnified Person may plead clause 11.6(a) in response
to any claim made by any member of the Acquirer Group against them;
and
(iii) the undertakings contained in clause 11.6(a) are given for the benefit of
each Company Indemnified Person and are intended to be enforceable
against the Acquirer by each Company Indemnified Person in
accordance with the provisions of Part 2, Subpart 1 of the Contract and
Commercial Law Act 2017.
3447-4830-2652 v2 40
(c) The Company waives and releases, and must procure that each member of the
Bremworth Group waives and releases, all rights and claims which it may have
against any Acquirer Indemnified Person (other than the Acquirer) in respect of:
(i) any misrepresentation, inaccuracy or omission in or from any information
or advice given by that Acquirer Indemnified Person;
(ii) any breach of a representation, warranty or undertaking given by the
Acquirer in this agreement;
(iii) the preparation of the Acquirer Information; or
(iv) any other act or omission in connection with this agreement or the
Transaction,
except where the Acquirer Indemnified Person has engaged in wilful misconduct or
fraud.
(d) The parties acknowledge and agree that:
(i) the Acquirer has sought and obtained the waiver and release in clause
11.6(c) as agent for and on behalf of each Acquirer Indemnified Person
and may enforce the provisions of clause 11.6(c) on behalf of any
Acquirer Indemnified Person;
(ii) any Acquirer Indemnified Person may plead clause 11.6(c) in response to
any claim made by any member of the Bremworth Group against them;
and
(iii) the undertakings contained in clause 11.6(c) are given for the benefit of
each Acquirer Indemnified Person and are intended to be enforceable
against the Company by each Acquirer Indemnified Person in
accordance with the provisions of Part 2, Subpart 1 of the Contract and
Commercial Law Act 2017.
12. INSURANCE
12.1 Insurance policies: The Acquirer acknowledges that:
(a) subject to clause 12.1(b), the Company may, prior to the Implementation Date,
enter into a run-off directors' and officers' liability insurance policy in respect of any
directors or officers of the Bremworth Group for a 7-year period (the "D&O Run-off
Policy") and pay all premiums required upfront and on a non-revocable basis;
(b) the D&O Run-off Policy will, to the extent practicable, be obtained at normal
commercial rates and the cover is not more favourable than the Bremworth
Group's directors' and officers' liability insurance as at the date of this agreement,
the Acquirer agrees that the Company entering into and paying the premium for the
D&O Run-off Policy does not breach any provision of this agreement; and
3447-4830-2652 v2 41
(c) after the Implementation Date it will not, and will procure that no member of the
Bremworth Group will, vary or cancel the D&O Run-off Policy (for so long as such
member of the Bremworth Group remains a Related Company of the Acquirer).
In this clause, a reference to director includes a former director and a reference to officer
includes a former officer.
13. EXCLUSIVITY AND MATCHING RIGHTS
13.1 No shop restriction: Subject to clause 13.12, during the Exclusivity Period, the Company
must not, and must procure that each of its Representatives does not, directly or indirectly:
(a) solicit, invite, encourage or initiate any Competing Proposal or any offer, proposal,
expression of interest, enquiry, negotiation or discussion with any Third Party in
relation to, or for the purpose of, or that may reasonably be expected to encourage
or lead to, a Competing Proposal; or
(b) assist, encourage, procure or induce any person to do any of the things referred to
in clause 13.1(a) on its behalf.
13.2 No talk restriction: Subject to clause 13.3 and clause 13.12, during the Exclusivity Period,
the Company must not, and must procure that its Representatives do not, directly or
indirectly:
(a) enter into, permit, continue or participate in, negotiations or discussions with any
Third Party in relation to a Competing Proposal, or for the purpose of or that may
reasonably be expected to encourage or lead to a Competing Proposal; or
(b) assist, encourage, procure or induce any person to do any of the things referred to
in clause 13.2(a) on its behalf,
even if the Competing Proposal was not directly or indirectly solicited, invited, encouraged or
initiated by the Company or any of its Representatives, was received before the date of this
agreement and/or has been publicly announced.
13.3 No talk exception: The restriction in clause 13.2 does not apply to the extent that it restricts
the Company or its Representatives from taking or refusing to take any action with respect to
a bona fide Competing Proposal (which was not encouraged, solicited, invited, initiated, or
continued in contravention of clause 13.1 or 13.2) if, acting in good faith and after having
received written advice from its external legal and financial advisers, the Board has
determined that:
(a) the Competing Proposal is, or is reasonably capable of becoming, a Superior
Proposal or would be reasonably likely to constitute a Superior Proposal if it were
to be proposed; and
(b) it is necessary to respond to such Competing Proposal in order to fulfil the fiduciary
duties or statutory obligations of the Board.
13.4 No due diligence restriction: Subject to clause 13.5 and clause 13.12, but without limiting
clause 13.2, during the Exclusivity Period, the Company must not, and must procure that
each of its Representatives does not, directly or indirectly:
3447-4830-2652 v2 42
(a) make available to any Third Party, or cause or permit any Third Party to receive,
any non-public information relating to the Company or any of its Subsidiaries that
may reasonably be expected to assist such Third Party in formulating, developing
or finalising a Competing Proposal; or
(b) assist, encourage, procure or induce any person to do any of the things referred to
in clause 13.4(a) on its behalf.
13.5 No due diligence exception: The restriction in clause 13.4 does not apply in respect of a
bona fide Competing Proposal (which was not encouraged, solicited, invited or initiated in
contravention of clause 13.1 or clause 13.2) if all of the following requirements are satisfied:
(a) the Board has determined, after obtaining written advice from its external financial
advisers, that the Competing Proposal is, or is reasonably capable of becoming, a
Superior Proposal or would be reasonably likely to constitute a Superior Proposal if
it were to be proposed;
(b) acting in good faith and after having obtained advice from its external legal
advisers, the Board has determined that it is necessary to respond to such
Competing Proposal in order to fulfil their fiduciary duties or statutory obligations;
(c) the Third Party has first entered into a written agreement in favour of the Company
restricting the use and disclosure by the Third Party and its affiliates and advisers
of the information made available to the Third Party, on terms the Company
reasonably believes are not, in any material respect, more favourable to the Third
Party than those in the confidentiality agreement referred to in clause 21.4; and
(d) to the extent that any information made available to the Third Party is material and
has not previously been provided to the Acquirer, the Company provides or makes
that information available to the Acquirer at the same time as it is provided to the
Third Party or promptly thereafter.
13.6 General notification obligations: During the Exclusivity Period, the Company must notify
the Acquirer as soon as practicable (and in any event within 24 hours) if:
(a) the Company or any of its Representatives receives any Competing Proposal from
a Third Party bidder or any offer or request to do any of the things referred to in
clause 13.2(a) or clause 13.4(a) that could reasonably be expected to lead to a
Competing Proposal from a Third Party bidder; or
(b) the Company proposes to take, or does take, any action in reliance on the
exceptions in clause 13.3 or clause 13.5,
and a notification given pursuant to clause 13.6(a) will include:
(c) the identity of the relevant Third Party bidder;
(d) reasonable detail of the material terms and conditions of such approach, action or
circumstances, including the amount and form of consideration to be offered, the
conditions to which it is subject, the proposed timetable and any break fee
arrangements (to the extent known);
3447-4830-2652 v2 43
(e) whether or not the Company intends to progress or respond to the relevant inquiry,
approach, offer, bid, proposal or request (or whether, acting in good faith, the
Company has not yet been able to make such a decision); and
(f) the nature of the information and access requested and/or provided or action
proposed to be taken.
13.7 Matching rights: If the Company or any of its Representatives receives a Competing
Proposal which, in the Company's opinion, is, or is reasonably likely to constitute, a Superior
Proposal, then:
(a) the Company must as soon as reasonably practicable give the Acquirer a written
notice setting out all material terms and conditions of the Competing Proposal,
including the identity of the Third Party bidder who has made the Competing
Proposal, the amount and form of consideration to be offered (including the Board's
assessment of the value of that Competing Proposal if it is not an all cash
proposal), the conditions to which it is subject and the proposed timetable; and
(b) for the period beginning on the date that the Company gives notice to the Acquirer
under clause 13.6(a) and ending on the date that is ten Business Days after the
provision of such notice (the "Matching Period"):
(i) the Company must not enter into, or agree to enter into, any binding
documentation to give effect to or implement the Competing Proposal;
(ii) the Company must use reasonable endeavours to ensure that no Director
makes any public statement recommending the Competing Proposal to
Shareholders; and
(iii) the Acquirer may offer to amend the terms of the Scheme and this
agreement or make an alternative proposal to the Company or to
Shareholders with a view to providing an outcome for Shareholders that
is no less favourable or superior to that offered under the relevant
Competing Proposal (including ensuring that the Consideration at least
matches that of the Competing Proposal) (being a "Counter Proposal").
13.8 Consequences of Superior Proposal: If the Company gives notice to the Acquirer under
clause 13.7(a), then the Company may:
(a) in its reasonable discretion, delay any action contemplated by the Timetable
(including adjourning the Scheme Meeting) to allow the Matching Period to be
exhausted and, if applicable, to agree a Counter Proposal; and
(b) make any announcement to NZX and ASX that the Company, acting in good faith,
considers appropriate in the circumstances to ensure that it complies with
applicable law, the NZX Listing Rules and/or the ASX Listing Rules.
13.9 Company response to Counter Proposal: If, during the Matching Period, the Acquirer
makes a Counter Proposal:
(a) the Company must procure that the Board considers the Counter Proposal in good
faith and, if it considers that the terms and conditions of the Counter Proposal
(taken as a whole) are less favourable to Shareholders than those in the relevant
3447-4830-2652 v2 44
Superior Proposal, must consult with the Acquirer as to the relative merits of the
Counter Proposal and the Superior Proposal; and
(b) if the Board acting in good faith determines that the terms and conditions of the
Counter Proposal taken as a whole are no less favourable to Shareholders than
those in the relevant Competing Proposal, then:
(i) the parties must use their reasonable endeavours to agree and enter into
such documentation as is necessary to give effect to and implement the
Counter Proposal as soon as reasonably practicable; and
(ii) the Company must use reasonable endeavours to procure that each
Director makes a public statement recommending the Counter Proposal
to Shareholders.
13.10 Changes to proposals: Any material change to a Competing Proposal, including:
(a) any material change to the terms referred to in clause 13.6(a); or
(b) any incomplete or non-binding proposal or expression of interest becoming
complete, capable of acceptance or, subject to clause 13.11, binding on the Third
Party bidder,
will be taken to constitute a new Competing Proposal in respect of which the Company must
separately comply with its obligations under clauses 13.6 and 13.9.
13.11 No matching: If the Acquirer fails to provide a Counter Proposal within the Matching Period
or the Board otherwise reasonably determines that the terms and conditions of any Counter
Proposal taken as a whole are less favourable to Shareholders than those in the relevant
Competing Proposal, then the Company may enter into a binding implementation agreement
or similar binding arrangement in respect of that Competing Proposal, in which case:
(a) the Counter Proposal right under this agreement will expire in respect of that
Competing Proposal (with such Competing Proposal being a Superior Proposal for
the purposes of this agreement); and
(b) either party may terminate this agreement by written notice to the other party.
13.12 Normal provision of information: Nothing in this clause 13 prevents the Company from:
(a) providing information required to be provided by law, any court of competent
jurisdiction, any Government Agency or the NZX Listing Rules; or
(b) making presentations to, and responding to bona fide enquiries from, stockbrokers,
portfolio investors and equity market analysts in accordance with its usual
practices;
(c) taking any action required by law in response to an unsolicited takeover notice
given under rule 41 of the Takeovers Code in respect of, or takeover offer made
under the Takeovers Code for, equity securities of the Company (including
complying with clause 15 of Schedule 2 to the Takeovers Code); or
3447-4830-2652 v2 45
(d) in respect of a takeover notice or takeover offer of the type referred to in clause
13.12(c):
(i) providing non-public information to;
(ii) entering into a confidentiality agreement with; or
(iii) having discussions with,
the offeror who gives the takeover notice or makes the takeover offer, to the extent
such steps are reasonably required to comply with the Takeovers Code to ensure
that the Company does not, and Company Directors do not, breach the Takeovers
Code (including the prohibition on defensive tactics in Rule 38 of the Takeovers
Code).
14. TERMINATION
14.1 Events affecting Company: Subject to clauses 11.5 and 14.7, the Acquirer may terminate
this agreement by giving notice in writing to the Company before 8:00am on the
Implementation Date if:
(a) if there is a breach of any of the Fundamental Warranties;
(b) there is a breach of any Company Warranty or any event occurs or circumstance
arises that is certain to cause a Company Warranty to be untrue as at 8.00am on
the Implementation Date, where the consequences of that breach (other than in
respect of a Fundamental Warranty) are material in the context of the Scheme or
the Bremworth Group (taken as a whole);
(c) the Company is in breach of any Company Undertaking or any other obligation
under this agreement, where the consequences of that breach are material in the
context of the Scheme or the Bremworth Group (taken as a whole). For the
avoidance of doubt, it will be a material breach of this agreement if any Director
fails to make the recommendation, or any Director fails to give the undertaking,
referred to in clause 8.1 or changes, qualifies or withdraws that recommendation or
undertaking once made or makes any statement inconsistent with that
recommendation or that undertaking, except where there is a Superior Proposal in
compliance with clause 13.7 or where the Independent Adviser issues an
Independent Adviser’s Report which concludes that the Consideration is not within
or above the Independent Adviser’s valuation range for the Shares;
(d) a Prescribed Occurrence occurs between the date of this agreement and 8:00am
on the Implementation Date; or
(e) clause 13.11 applies and the Company has not already terminated this agreement.
14.2 Events affecting Acquirer: Subject to clauses 11.5 and 14.7, the Company may terminate
this agreement by giving notice in writing to the Acquirer before 8:00am on the
Implementation Date:
(a) if there is a breach of any Acquirer Warranty or any event occurs or circumstance
arises that would cause any Acquirer Warranty to be untrue as at 8:00am on the
3447-4830-2652 v2 46
Implementation Date, where the consequences of that breach are material in the
context of the Scheme;
(b) if the Acquirer is in breach of any Acquirer Undertaking or any other obligation
under this agreement, where the consequences of that breach are material in the
context of the Scheme;
(c) if an Insolvency Event occurs in respect of the Acquirer;
(d) if the Independent Adviser's Report concludes that the Consideration is not within
or above the Independent Adviser's valuation range for the Shares, provided that
the Company will not exercise its right to terminate the Agreement under this
clause 14.2(d) without first consulting with the Acquirer in good faith; or
(e) clause 13.11 applies and the Acquirer has not already terminated this agreement.
14.3 Scheme Resolution not passed: Either party may terminate this agreement by giving
notice in writing to the other party if:
(a) at the Scheme Meeting, the Scheme Resolution is not passed by the requisite
majorities in accordance with sections 236A(2)(a) and 236A(4) of the Companies
Act;
(b) the parties do not agree, by 5.00pm on the earlier of the date that is five Business
Days after the Scheme Meeting and the End Date, to hold another Scheme
Meeting; and
(c) the terminating party has complied in all material respects with its obligations under
this agreement in respect of the Scheme Meeting and the Scheme Resolution.
14.4 Court does not grant the Court Orders: Subject first to complying with clause 7, either
party may terminate this agreement by giving notice in writing to the other party if the Court
determines not to grant either the Initial Court Orders or the Final Orders and that
determination is not appealed in accordance with clause 7.3 (or is unsuccessfully appealed),
provided that the terminating party has complied in all material respects with its obligations
under this agreement.
14.5 Regulatory Conditions: Subject first to complying with clauses 3.6 and 3.7, either party
may terminate this agreement by giving notice in writing to the other party if either of the
Regulatory Conditions become incapable of being satisfied.
14.6 End Date: Subject to first complying with clause 3.6, either party may terminate this
agreement by giving notice in writing to the other if the Scheme has not become Effective by
the End Date, provided that the terminating party's failure to comply with its obligations under
this agreement has not directly and materially contributed to the Scheme not becoming
Effective by the End Date.
14.7 Notice of termination: A party may only exercise a right of termination in accordance with
this clause 14 if:
(a) the party wishing to terminate has not previously waived any Condition under
clause 3.4, or given any other waiver, in each case in respect of the same breach,
event or circumstance the subject of termination; and
3447-4830-2652 v2 47
(b) the party wishing to terminate has first given written notice to the other party setting
out the circumstances that it considers permit it to terminate and stating its
intention to do so and, if capable of remedy, the relevant circumstances have not
been remedied before the earlier to occur of: (i) 15 Business Days after the time
that the notice is given; and (ii) 8.00am on the Implementation Date.
14.8 Effect of termination: If this agreement is terminated under this clause 14, then:
(a) except as provided in clause 14.8(c), all the provisions of this agreement cease to
have effect and each party is released from its obligations to further perform this
agreement;
(b) each party retains all rights that it has against the other party in respect of any
breach of this agreement occurring before termination; and
(c) the provisions of, and the rights and obligations of each party under, this clause 14
and the Surviving Clauses survive termination of this agreement.
14.9 No other termination: Except as expressly set out in this agreement, neither party has the
right to terminate or cancel this agreement whether before or after the Implementation Date
as a result of any matter, information or circumstance, including for misrepresentation,
repudiation, anticipatory breach or breach of or in respect of any matter giving rise to or the
subject of a claim arising out of or in connection with this agreement (whether arising in tort
(including negligence), in contract, statute, by operation of law or otherwise)), and sections
36 and 37 of the Contract and Commercial Law Act 2017 will not apply to this agreement.
15. BREAK FEE, REGULATORY APPROVAL BREAK FEE AND REVERSE BREAK FEE
15.1 Acknowledgement and agreement: The Company (on the one hand) and the Acquirer (on
the other hand) each acknowledges and agrees that:
(a) the other party and its Related Companies have incurred and will continue to incur
significant costs and expenses in pursuing the Transaction including:
(i) advisory costs;
(ii) costs of management and directors' time;
(iii) out-of-pocket expenses; and
(iv) opportunity costs of pursing the Transaction or not pursuing alternative
transactions or business opportunities;
(b) the costs and expenses actually incurred by each party and its Related Companies
are of such a nature that they cannot accurately be ascertained;
(c) the Break Fee, Regulatory Approval Break Fee and Reverse Break Fee are each
liquidated damages based on a genuine and reasonable estimate of the costs and
expenses that have been or will be actually incurred by the relevant party and its
Related Companies in pursuing the Transaction and, in any case, are
proportionate to the legitimate interests of the parties in connection with this
agreement;
3447-4830-2652 v2 48
(d) the parties have negotiated the inclusion of this clause 15 in this agreement and
would not have entered into this agreement without it; and
(e) each party has received external independent legal and financial advice in relation
to this clause 15 and has concluded that it is reasonable and appropriate for it to
agree to payment of the Break Fee, Regulatory Approval Break Fee or Reverse
Break Fee (as applicable) in the circumstances described in clause 15.2 or 15.3
(as applicable) in order to secure the other party's entry into this agreement.
15.2 Circumstances where Break Fee payable: Subject to clause 15.6 and clause 15.8, the
Company must pay the Break Fee to the Acquirer if this agreement is terminated prior to the
Scheme becoming Effective and:
(a) at any time before this agreement is terminated a Competing Proposal is
announced and within 12 months after the date of that announcement, the person
making the Competing Proposal, or one or more Associates of that person,
completes, in all material respects, a transaction of the kind referred to in the
definition of Competing Proposal; or
(b) the Directors fail to make the recommendation and/or fail to give the undertaking
referred to in clauses 8.1 and 16.1 or change, adversely qualify or withdraw that
recommendation or undertaking or make any statement materially inconsistent with
that recommendation or that undertaking, except, for the avoidance of doubt,
where:
(i) there is a Superior Proposal (subject to the Company’s compliance with
clause 13.7); or
(ii) the Independent Adviser issues an Independent Adviser's Report which
concludes that the Consideration is not within or above the Independent
Adviser's valuation range for the Shares; or
(c) the Acquirer terminates this agreement as permitted under clauses 14.1(a), 14.1(c)
or clause 14.1(d) (except for termination for a Prescribed Occurrence that was not
under, or within, the control of the Bremworth Group).
15.3 Circumstances where Reverse Break Fee payable: Subject to clause 15.6 and 15.8, the
Acquirer must pay the Reverse Break Fee to the Company if:
(a) the Company terminates this agreement as permitted under clause 14.2(a),
14.2(b), or 14.2(c); or
(b) the Acquirer is in material breach of the Deed Poll.
15.4 Circumstances where Regulatory Approval Break Fee payable: Subject to clause 15.6
and 15.8, the Acquirer must pay the Regulatory Approval Break Fee if this agreement is
terminated:
(a) by the Company under clause 14.5 due to a material breach by the Acquirer of its
undertakings with respect to satisfying the Regulatory Conditions under clause 3
(unless the Regulatory Conditions are nonetheless satisfied in accordance with this
agreement by the End Date); or
3447-4830-2652 v2 49
(b) by either party under clause 14.5 due to a failure to satisfy the Regulatory
Conditions by the End Date (or clause 14.6, following such failure) in accordance
with the terms of this agreement.
15.5 Payment of Break Fee, Regulatory Approval Break Fee or Reverse Break Fee: If the
Break Fee, Regulatory Approval Break Fee or Reverse Break Fee becomes payable under
this agreement, the Company or the Acquirer (as applicable) must pay it to, or as directed
by, the other party, without withholding or set-off (except as required by law) within 15
Business Days after receipt of a written demand for payment from the other party.
15.6 Break Fee, Regulatory Approval Break Fee or Reverse Break Fee: Notwithstanding
anything else in this agreement:
(a) neither the Break Fee, Regulatory Approval Break Fee nor the Reverse Break Fee
is payable if the Scheme becomes Effective;
(b) each of the Break Fee, Regulatory Approval Break Fee or the Reverse Break Fee
is payable only once; and
(c) in the event that the Company pays the Break Fee under this clause 15, in no
circumstances will the Acquirer be required to pay the Reverse Break Fee (and
vice versa).
15.7 Sole and exclusive remedy:
(a) The Acquirer acknowledges and agrees that payment of the Break Fee to the
Acquirer is the sole and exclusive remedy available to the Acquirer in connection
with any event or occurrence referred to in clause 15.2 (Circumstances where
Break Fee payable) and the Company is not liable for any Loss arising in
connection with any such event or occurrence other than for any liability that it may
have to pay the Acquirer the Break Fee under this clause 15.
(b) The Company acknowledges and agrees that payment of the Reverse Break Fee
to the Company is the sole and exclusive remedy available to the Company in
connection with any event or occurrence referred to in clause 15.3 (Circumstances
where Reverse Break Fee payable) and the Acquirer is not liable for any Loss
arising in connection with any such event or occurrence other than for any liability
that it may have to pay the Company the Reverse Break Fee under this clause 15.
(c) Nothing in this clause 15 limits the Company's or the Acquirer’s liability for fraud or,
in the case of the Acquirer, the Acquirer's liability if the Acquirer breaches this
agreement, or this agreement is otherwise terminated by the Company under
clause 14.2, where the act(s) or omission(s) of the Acquirer resulting in the breach
or termination right was made or not taken (as the case may be) with the deliberate
intention or purpose of not completing the Transaction.
15.8 Amendments to Break Fee, Regulatory Approval Break Fee or Reverse Break Fee
arrangements: If any of the following occurs:
(a) the Takeovers Panel indicates to either party in writing that it requires any
modification to the amount of the Break Fee, Regulatory Approval Break Fee or
Reverse Break Fee or the circumstances in which either is to be paid (the "Break
Fee Arrangements") as a condition of not opposing the Scheme; or
3447-4830-2652 v2 50
(b) the Court requires any modification to the Break Fee Arrangements as a condition
of making orders convening the Scheme Meeting,
then the parties must amend this clause 15 to the extent required to give effect to the
requirements of the Court or the Takeovers Panel, as the case may be, and in the
circumstances referred to in clause 15.8(b), the parties must give any required undertakings.
15.9 Specific performance and other rights:
(a) Nothing in this agreement precludes a party from:
(i) suing the other for specific performance; or
(ii) otherwise terminating this agreement in accordance with its terms and/or
suing the other for damages (the amount of which it is acknowledged will
be reduced by the amount of any Break Fee or Reverse Break Fee
actually paid by one party to the other in accordance with this
agreement).
(b) The Acquirer and the Acquirer Guarantor acknowledge and agree that:
(i) if the Acquirer breaches this agreement, Loss may be suffered or
incurred by Shareholders and, accordingly, the Acquirer and the Acquirer
Guarantor acknowledge and agree that the agreements and covenants
that each provide in this agreement, are promises which confer, and are
intended to confer, a benefit upon the Shareholders and, accordingly, the
provisions of subpart 1 of part 2 of the Contract and Commercial Law Act
2017 apply to each of them. Nothing in the preceding sentence will
prevent the Company and the Acquirer amending this agreement without
the consent of the Shareholders as contemplated by clause 21.1; and
(ii) if the Company seeks damages from the Acquirer and/or the Acquirer
Guarantor, any Loss suffered bv Shareholders as a result of a breach of
this agreement or the Deed Poll by the Acquirer will be deemed to be
suffered by the Company (except to the extent that the Acquirer and/or
the Acquirer Guarantor pays damages directly to Shareholders on
account of any Loss suffered due to the applicable breach).
15.10 Limitation of Company's liability: Subject to clauses 15.7(c) and 15.9, notwithstanding any
other provision of this agreement:
(a) the maximum aggregate liability of the Company to the Acquirer under or in
connection with this agreement, howsoever arising and including in respect of any
breach of this agreement, will be the amount of the Break Fee;
(b) a payment by the Company of the Break Fee represents the sole and absolute
liability of the Company to the Acquirer under or in connection with this agreement
and no further damages, fees, expenses or reimbursements of any kind will be
payable by the Company to the Acquirer in connection with this agreement;
(c) the Company will not have any liability for any Consequential Loss; and
3447-4830-2652 v2 51
(d) the amount of the Break Fee payable to the Acquirer under this clause 15 shall be
reduced by the amount of any Loss recovered by the Acquirer in relation to a
breach of any other clause of this agreement.
15.11 Limitation of Acquirer’s liability: Subject to clauses 15.7(c) and 15.9, notwithstanding any
other provision of this agreement:
(a) the maximum aggregate liability of the Acquirer to the Company under or in
connection with this agreement, howsoever arising and including in respect of any
breach of this agreement, will be the amount of the Reverse Break Fee or, if
applicable, the Regulatory Approval Break Fee;
(b) a payment by the Acquirer of the Reverse Break Fee or the Regulatory Approval
Break Fee (as applicable) represents the sole and absolute liability of the Acquirer
to the Company under or in connection with this agreement and no further
damages, fees, expenses or reimbursements of any kind will be payable by the
Acquirer to the Company in connection with this agreement;
(c) the Acquirer will not have any liability for any Consequential Loss; and
(d) the amount of any Reverse Break Fee payable to the Company under this clause
15 shall be reduced by the amount of any Loss recovered by the Company in
relation to a breach of any other clause of this agreement.
16. ANNOUNCEMENTS
16.1 Initial announcements: As soon as reasonably practicable following execution of this
agreement, the Company must issue an announcement via NZX, in a form agreed with the
Acquirer and including a statement that each Director:
(a) recommends that Shareholders vote in favour of the Scheme; and
(b) undertakes to vote, or procure the voting of, all Shares held or controlled by him or
her in favour of the Scheme,
in each case in the absence of a Superior Proposal and subject to the Independent Adviser's
Report concluding that the Consideration is within or above the Independent Adviser's
valuation range for the Shares.
16.2 Other announcements: Each party must not make, and must procure that its
Representatives do not make, any public announcement concerning the Scheme or the
subject matter of this agreement other than:
(a) the announcement referred to in clause 16.1;
(b) with the written consent of the other party, which must not be unreasonably
withheld, conditioned or delayed;
(c) an announcement which provides an update on progress with implementing the
Scheme or, in the case of the Company, any administrative information in relation
to the Shareholders approving the Scheme at the Scheme Meeting by the requisite
3447-4830-2652 v2 52
majorities in accordance with sections 236A(2)(a) and 236A(4) of the Companies
Act; or
(d) if required by law, any court of competent jurisdiction, any Government Agency or
the NZX Listing Rules, but if either party is so required to make any
announcement, it must promptly notify the other party, where practicable and lawful
to do so, before the announcement is made and must co-operate with the other
party regarding the timing and content of such announcement,
provided that the obligations in this clause will not prevent the Company or the Acquirer from
responding to media and other stakeholders where not inconsistent with announcements
that are permitted to be made in accordance with the terms of this agreement, including this
clause 16.2.
17. PAYMENTS
17.1 Manner of payments: Unless otherwise expressly stated (or as otherwise agreed in the
case of a given payment), each payment to be made under this agreement must be made in
New Zealand dollars by transfer of the relevant amount into the relevant account on or
before the date on which the payment is due and in immediately available funds. The
relevant account for a given payment is the account that the party due to receive the
payment specifies, not less than 10 Business Days before the date on which payment is due,
by giving notice to the party due to make the payment.
17.2 Default interest: If a party defaults in making any payment when due of any sum payable
under this agreement, it must pay interest on that sum from (and including) the date on
which payment is due until (but excluding) the date of actual payment (after as well as before
judgment) on that sum at an annual rate equal to the Bill Rate plus 5%, which interest
accrues from day to day and must be compounded monthly. The party making such
payment is permitted to withhold Tax required to be withheld by law without gross-up.
18. GST
18.1 Interpretation: Words and expressions that are defined in the GST Act have the same
meaning when used in this clause 18. For the purposes of this clause 18, references to GST
chargeable and input tax credit entitlements of any entity include GST chargeable against,
and the input tax credit entitlements of, the representative member of the GST group of
which the entity is a member.
18.2 Consideration exclusive of GST: For the avoidance of doubt, the parties agree that the
supply of Scheme Shares pursuant to this agreement is an exempt supply of a financial
service and therefore not subject to GST. All other stated amounts payable or consideration
to be provided under or in connection with this agreement do not include GST ("GST
Exclusive Consideration").
18.3 Payment of GST: If GST is chargeable on any supply made under or in connection with this
agreement the recipient must pay to the party that has made or will make the supply (the
"Supplier"), in addition to the GST Exclusive Consideration, an additional amount equal to
the GST chargeable on that supply (the "Additional Amount"). The recipient must pay the
Additional Amount without set-off, demand or deduction, at the same time and in the same
3447-4830-2652 v2 53
manner as any GST Exclusive Consideration for that supply if required to be paid, except
that the recipient is not required:
(a) to pay the Additional Amount unless and until the Supplier has issued taxable
supply information under clause 18.4; or
(b) to pay any GST Default Amounts included in the Additional Amount if those GST
Default Amounts result from the Supplier failing to comply with its obligations under
the GST Act.
18.4 Taxable supply information: For any supply to which clause 18.3 applies, the Supplier
must issue taxable supply information which complies with the GST Act.
18.5 Adjustments: If an event referred to in section 25(1) of the GST Act occurs in relation to a
taxable supply made under or in connection with this agreement, the GST payable on that
supply will be recalculated to reflect that adjustment, with supply correction information being
issued as required by the GST Act and an appropriate payment will be made between the
parties.
18.6 Input tax credits: Notwithstanding any other provision of this agreement, if an amount
payable under or in connection with this agreement is calculated by reference to any Loss
incurred or suffered by a party, then the amount payable must be reduced by the amount of
any input tax credit or other deduction from output tax to which that entity is entitled in
respect of the acquisition of any supply to which the Loss relates. For the avoidance of
doubt, this clause 18.6 does not apply to adjust the Break Fee, Regulatory Approval Break
Fee or the Reverse Break Fee.
19. GUARANTEE
19.1 Acquirer Guarantor: In consideration of the Company entering into this agreement, the
Acquirer Guarantor irrevocably and unconditionally:
(a) guarantees, to the Company (and the Company Indemnified Persons, as
applicable) as principal obligor, and not merely as a surety, by way of a continuing
obligation (despite any intervening payment, settlement or other thing), the due and
punctual compliance by the Acquirer with each of the Acquirer's obligations,
including the payment of all amounts payable by the Acquirer, under, or in
connection with, this agreement;
(b) undertakes to the Company that whenever the Acquirer does not pay any amount
when due under or in connection with this agreement (or anything which would
have been due if the agreement or the amount was enforceable, valid and not
illegal), immediately on demand by the Company the Acquirer Guarantor shall pay
that amount as if it was the principal obligor (without set-off, counterclaim or
deduction); and
(c) indemnifies the Company (and the Company Indemnified Persons, as applicable)
from and against any Loss suffered or incurred by the Company arising out of or in
connection with any failure of the Acquirer or the Acquirer Guarantor to pay any
amount payable under, or to perform any obligation under, this agreement
(including any and all such claims and Loss of whatever nature incurred by the
Company in connection with the enforcement of this clause 19).
3447-4830-2652 v2 54
19.2 Nature of liability: The Acquirer Guarantor acknowledges and agrees that each of its
obligations under this clause 19:
(a) is a principal and continuing obligation and will not be affected by any principle of
law or equity which might otherwise reduce or limit in any way the liability of the
Acquirer Guarantor; and
(b) continues notwithstanding any amendment of this agreement or any waiver,
consent or notice given under this agreement by any party to the other.
19.3 Maximum liability: The Acquirer Guarantor's liability under this clause 19 will not exceed
the liability of the Acquirer in respect of the relevant claim.
20. NOTICES
20.1 Notice: Every notice or other communication ("Notice") for the purposes of this agreement
will:
(a) be in writing; and
(b) be delivered in accordance with clause 20.2.
20.2 Method of service: A Notice may be given by:
(a) delivery to the physical address of the relevant party; or
(b) sending it by email to the email address of the relevant party.
20.3 Time of receipt: A Notice given in the manner:
(a) specified in clause 20.1(a) is deemed received at the time of delivery;
(b) specified in clause 20.2(b) is deemed received:
(i) if sent between the hours of 9am and 5pm (local time) on a Business
Day, at the time of transmission; or
(ii) if subclause (i) does not apply, at 9.00am on the Business Day
immediately after the time of sending,
unless the sender receives an automated message that the email has not been
delivered (excluding an "out of office" automated message).
20.4 Addresses: For the purposes of this clause the address details of each party are:
(a) the details set out below; or
(b) such other details as any party may notify to the other by Notice given in
accordance with this clause.
Acquirer and the Acquirer Guarantor:
Attention: Tania Pauling
3447-4830-2652 v2 55
Physical address: Godfrey Hirst NZ Limited, 142 Kerrs Road, Wiri, Manukau, Auckland,
New Zealand
Email address: tania.pauling@godfreyhirst.com
With a copy to (which will not constitute notice):
Attention: Roger Wallis, Chapman Tripp
Physical address: Chapman Tripp, Level 34, PwC Tower, 15 Customs Street, Auckland
Central, Auckland 1010, New Zealand
Email address: roger.wallis@chapmantripp.com
Company:
Attention: Victor Tan
Physical address: Bremworth Limited, 7 Grayson Avenue, Papatoetoe, Auckland, New
Zealand
Email address: vtan@bremworth.co.nz
With a copy to (which will not constitute notice):
Attention: Ian Beaumont, Russell McVeagh
Physical address: Level 30, Vero Centre, 48 Shortland Street, Auckland, New Zealand
Email address: ian.beaumont@russellmcveagh.com
20.5 Proof of service: In proving service of a notice or other communication, it is sufficient to
prove that delivery was made or that the email was properly addressed and transmitted by
the sender's server into the network and there was no apparent error in the operation of the
sender's email system.
21. GENERAL
21.1 Amendments: No:
(a) amendment to this agreement;
(b) agreement between the parties for the purpose of, or referred to in, this agreement;
or
(c) request, consent, or approval for the purpose of, or referred to in, this agreement,
is effective unless it is in writing and signed (if subclauses (a) or (b) apply) by both parties or
(if subclause (c) applies) the party making the request or required to give the consent or
approval.
21.2 Costs: Except as otherwise expressly provided for in this agreement, each party must pay
the costs and expenses incurred by it in respect of entering into and performing its
obligations under this agreement, the Scheme and the Deed Poll.
3447-4830-2652 v2 56
21.3 Counterparts: This agreement may be executed in any number of counterparts (including
by way of electronic means such as DocuSign), which taken together must constitute one
and the same agreement, and any party (including any duly authorised representative of a
party) may enter into this agreement by executing a counterpart. Scanned signatures are to
be taken as valid and binding to the same extent as original signatures.
21.4 Entire agreement: This agreement and the confidentiality agreement dated 29 April 2025
between the Company and the Acquirer constitute the entire agreement between the parties
relating to the subject matter of this agreement and supersede and cancel any previous
agreement, understanding, or arrangement, whether written or oral, relating to such subject
matter.
21.5 Further assurance: Each party will make all applications, execute all documents and do or
procure all other acts and things reasonably required to implement and to carry out its
obligations under, and the intention of, this agreement.
21.6 Assignment: Neither party will directly or indirectly assign, transfer or otherwise dispose of
any of its rights or interests in, or any of its obligations or liabilities under or in connection
with this agreement, except with the prior written consent of the other party, which consent
may be withheld in the absolute discretion of the other party.
21.7 Rights and powers cumulative: The rights, powers and remedies provided in this
agreement are cumulative with, and are not exclusive of, any rights, powers or remedies at
law or in equity unless specifically stated otherwise.
21.8 Severance: If any provision of this agreement is or becomes unenforceable, illegal or invalid
for any reason it will be deemed to be severed from this agreement without affecting the
validity of the remainder of this agreement and will not affect the enforceability, legality,
validity or application of any other provision of this agreement.
21.9 No merger: The provisions of this agreement, and anything done under, or in connection
with, this agreement will not operate as a merger of any of the rights, powers or remedies of
either party under, or in connection with, this agreement or at law, and those rights, powers
and remedies will survive and continue in full force and effect to the extent that they are
unfulfilled.
21.10 Governing law: This agreement is governed by the laws of New Zealand and the parties
submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any
dispute or proceeding arising out of this agreement. The parties irrevocably waive any
objection to the venue of any legal process in these courts on the basis that the process has
been brought in an inconvenient forum.
[Signature page follows]
3447-4830-2652 v2 57
SIGNATURES
BREMWORTH LIMITED by:
Signature of director
Name of director
FLOORSCAPE LIMITED by:
Signature of director
Tania Pauling
Name of director
MOHAWK INDUSTRIES, INC. by:
Signature of authorised officer
Name of authorised officer
Russell
Mc\-,agh
SIGNATURES
BREMWORTH
LIMITED
by
Signature of
director
Name of director
FLOORSCAPE
LIMITED by:
Signature
of director
Tania Pauling
Name
of director
MOHAWK
INDUSTRIES,
lNG. by:
Signature
of authorised officer
Name of authorised
officer
3447-4830-2652
v2
57
Russell
Maeagh
SIGNATURES
BREMWORTH
LIMITED
by:
Signature
of
director
Name
of
director
FLOORSCAPE
LIMITED
by:
Signature
of
director
Tania
Pauling
Name
of
director
MOHAWK
INDUSTRIES,
INC.
by:
Signature
of
authorised
officer
Jefe
Larlaebom,
Chain
aed
CR
oF
Erect
Office
Name
of
authorised
officer
3447-4830-2652
v2
57
3447-4830-2652 v2 58
SCHEDULE 1
Prescribed Occurrences
1. The Company or another member of the Bremworth Group authorises, declares, pays, or
makes any dividends, bonuses or other payments or distributions (within the meaning of the
Companies Act) of any nature, other than as contemplated by this agreement or any
distribution from wholly-owned Subsidiaries of the Company to the Company or to other
wholly-owned Subsidiaries of the Company, other than the Capital Return.
2. Any Bremworth Group member issuing, agreeing to issue, or granting an option or right to
subscribe for, shares, convertible securities, other securities or financial products of any
nature (including warrants, options, phantom or cash settled rights over shares, convertible
notes, entitlements, rights or interests in any ordinary shares) other than the issuing of
shares by a wholly-owned Subsidiary of the Company to the Company or another wholly-
owned Subsidiary of the Company or as permitted under clauses 9.4(h) or 9.5.
3. The Company:
a. altering the rights, privileges, benefits, entitlements or restrictions attaching to any
securities (including the Shares) or other securities or financial products (if any)
(except as permitted under clause 9.4(h) or 9.5);
b. converting all or any of the Shares into a larger or smaller number; or
c. buying back or redeeming (or agreeing to buy back or redeem) any Shares (other than
pursuant to the Capital Return).
4. Any alteration to the constitutional documents of any member of the Bremworth Group, that
is material in the context of the Scheme.
5. An Insolvency Event occurs in respect of a member of the Bremworth Group.
6. The Shares cease to be quoted on the NZX (other than in connection with the
implementation of the Scheme).
7. The Pro Forma Cash Balance being less than the Minimum Retained Cash amount.
8. A member of the Bremworth Group is, or will be, under any obligation to make any payment
or provide any consideration to any of its employees or directors in the event of any member
of the Bremworth Group becoming a subsidiary of the Acquirer or under the Acquirer’s
control (unless previously approved in writing by the Acquirer or as fairly disclosed in the
Due Diligence Material).
9. A member of the Bremworth Group alters the remuneration or other conditions of
employment or engagement of any of its directors, senior employees and executives, other
than within the exceptions provided in clause 9.4.
10. The board or shareholders of a Bremworth Group member pass a resolution to do or
authorise the doing of any act or matter referred to in any of paragraphs 1 to 9.
11. Any physical event (including without limitation fire, flood, earthquake, lightning strike, or
other similar natural disaster) occurs which materially and adversely affects (or is reasonably
3447-4830-2652 v2 59
likely to materially and adversely affect) the Business, financial condition, sales, properties,
assets, liabilities or operations of the Bremworth Group to an extent that (alone or with a
series of similar or related matters) it is reasonably expected to:
a. have an adverse impact on the net asset value of the Company of 10% or more; or
b. result in the full or partial suspension of operations at any Bremworth Group site for a
period of 3 months or more,
whether or not insured.
3447-4830-2652 v2 60
SCHEDULE 2
Company Warranties and Undertakings
Part 1: Company Warranties
Fundamental Warranties
1. Incorporation: The Company is a company duly incorporated under the laws of
New Zealand.
2. Capacity: The Company has the power to execute and to perform its obligations under this
agreement and the Scheme, and (subject to obtaining the approvals contemplated by clause
3.1 of this agreement) has taken all necessary corporate action to authorise such execution
and the performance of such obligations.
3. Binding effect: The obligations of the Company under this agreement constitute legal, valid
and binding obligations enforceable subject to and in accordance with their terms.
4. Compliance: The execution and performance of this agreement and the Scheme:
a. complies with the Company's constitution; and
b. does not constitute a breach of any law.
5. Share capital: The entire share capital of the Company as at the date of this agreement is
70,561,519 fully paid ordinary shares and will not exceed 69,451,593 (as a result of the
exercise of the options which Gregory Russell Smith holds and cancellation of LTI Shares
contemplated in clause 9.5(c) of this agreement) as at 8.00am on the Implementation Date.
6. Options: With the exception of the options held by Gregory Russell Smith pursuant to which
362,228 ordinary shares are to be issued within 2 Business Days of the Final Orders Date,
there are no other shares, options or other securities (including equity securities, debt
securities or convertible securities) or other instruments which are convertible into securities
in the Bremworth Group in favour of any person, nor has any member of the Bremworth
Group offered or agreed to issue or grant, and no person has any right to call for the issue or
grant of, any such shares, options or other securities or other instruments.
Disclosure warranties
7. Disclosure: The Company has filed with the Registrar and NZX all documents required to
be filed with the Registrar or NZX including pursuant to NZX Listing Rule 3.1.1 (the
"Disclosure Documents") and is not in breach of its continuous and periodic disclosure
obligations under the Companies Act, the FMCA, the NZX Listing Rules and (as at the date
of this agreement) is not relying on the exception in NZX Listing Rule 3.1.2 to withhold any
information from public disclosure (other than in relation to Project Loop). The Disclosure
Documents do not contain any untrue statement of a material fact or omit to state a material
fact required to be stated in it, except to the extent that such statements have been modified
or superseded by a later Disclosure Document.
8. Due Diligence Material: The Due Diligence Material has been prepared and provided in
good faith and, as far as the Company is aware, no information has been included in the Due
3447-4830-2652 v2 61
Diligence Material that was, when given, materially false or misleading, including by
omission.
9. Disclosed matters: As at the date of this agreement, the Company is not aware of any
material circumstance, contract, commitment or arrangement which has not been fairly
disclosed in the Due Diligence Material and which might reasonably be expected to
materially and adversely affect the financial position, business, assets, prospects or
profitability of the Bremworth Group (including as a result of payments to be made by the
Bremworth Group, a decrease in the value of the Bremworth Group’s assets or an increase
in the value of the Bremworth Group’s liabilities) or the value of the Shares, or which might
otherwise reasonably be expected to be material to a purchaser of the Shares.
10. Contractual arrangements: Except as fairly disclosed in the Due Diligence Material, neither
the execution of this agreement, nor the implementation of the Scheme, will entitle any
person to cancel, terminate earlier than would otherwise have been the case, or adversely
modify any material contract, commitment or arrangement to which any member of the
Bremworth Group is a party or under which any member of the Bremworth Group is entitled
to a material right or benefit, or any material provision thereof.
11. Claims and investigations: Except as fairly disclosed in the Due Diligence Material, as at
the date of this agreement, the Company is not a party to, and has not been notified of any
threatened, enforcement action, investigation, inquiry, determination, ruling or audit by a
Government Agency, or any action, claim, litigation, arbitration or prosecution by any party
(including by a Government Agency but excluding by any Acquirer Group Member).
General warranties
12. Incorporation: Each member of the Bremworth Group other than the Company is a
company duly incorporated under the laws of New Zealand or Australia. Yarmish Enterprises
Limited, a company through which sales of wool and carpet to Asia was previously made, is
registered in Hong Kong, but is dormant and has not traded since before 2000.
13. Authorisations: As far as the Company is aware as at the date of this agreement, each
member of the Bremworth Group has complied in all material respects with all New Zealand,
Australian and foreign laws and regulations applicable to it, has all material licences,
authorisations, consents and approvals (or similar) necessary for it to conduct the Business
as presently being conducted and, so far as the Company is aware, no member of the
Bremworth Group is under investigation with respect to the violation of any laws or
applicable licences, authorisations, consents and approvals (or similar).
14. Conduct of Business: From 25 June 2025 until and including the date of this agreement:
a. the Business has been carried on as a going concern and in the ordinary course of
business. Without limiting this clause, the Company has paid its staff in accordance
with the relevant contracted terms and paid its creditors and collected receivables in
the ordinary course of business in all material respects;
b. the Business has used reasonable endeavours to maintain an appropriate level of
inventory and other working capital, as required to meet the operating needs of the
Business and, without limitation, has not operated in a manner intended to artificially
increase the amount of Cash available over and above what would have been
available had the Business been operated in the ordinary course (including by
3447-4830-2652 v2 62
artificially reducing inventory, artificially lowering pricing, artificially accelerating the
collection of receivables, or artificially delaying the payment of creditors).
15. Financing: As at the date of this agreement, the Bremworth Group does not have any
outstanding debt financing that is not reflected in either its financial statements and notes
thereto for the year ended 30 June 2025 and since 30 June 2025 no member of the
Bremworth Group has engaged in debt financing of a type which is not required to be shown
or reflected in its financial statements or notes thereto.
Part 2: Company Undertakings
1. The Company will ensure that the Company Information:
a. is prepared in good faith and on the understanding that each of the Acquirer
Indemnified Persons will rely on that information for the purposes of considering and
approving the Acquirer Information in the Scheme Booklet;
b. complies with the Companies Act, FMCA and all other applicable laws (including the
NZX Listing Rules); and
c. in the form and context in which it appears in the Scheme Booklet, is true and correct
in all material respects and is not misleading or deceptive, including by omission, as at
the date the Scheme Booklet is sent to Shareholders.
2. Without limiting the Company's continuous disclosure obligations, the Company will provide
to the Acquirer all new material information of which it becomes aware after the Scheme
Booklet has been sent to Shareholders and before the date of the Scheme Meeting which is
necessary to ensure that the Company Information, in the form and context in which it
appears in the version of the Scheme Booklet sent to Shareholders, is not misleading or
deceptive, including by omission.
3. All information provided by or on behalf of the Company to the Independent Adviser will be
provided in good faith and on the understanding that the Independent Adviser will rely upon
that information for the purpose of preparing the Independent Adviser's Report for inclusion
in the Scheme Booklet, will be true and correct in all material respects and will not be
misleading or deceptive, including by omission.
3447-4830-2652 v2 63
SCHEDULE 3
Acquirer Warranties and Undertakings
Part 1: Acquirer Warranties
1. Incorporation: The Acquirer is a company duly incorporated under the laws of New
Zealand.
2. Capacity: The Acquirer has the power to execute and to perform its obligations under this
agreement, the Scheme and the Deed Poll, and has taken all necessary corporate action to
authorise such execution and the performance of such obligations.
3. Binding effect: The obligations of the Acquirer under this agreement, and under the Deed
Poll once executed, constitute legal, valid and binding obligations enforceable subject to and
in accordance with their terms.
4. Compliance: The execution and performance of this agreement, the Scheme and the Deed
Poll:
a. complies with the Acquirer's constitution or other constituent documents; and
b. does not constitute a breach of any law or other obligation by which the Acquirer is
bound and which will conflict with, constitute a default under, or would prevent it from
entering into and performing its obligations under this agreement, the Scheme or the
Deed Poll.
5. Approvals: To the Acquirer's knowledge, no consents, approvals or other acts by a
Government Agency are necessary to effect Implementation other than those identified in
clause 3.1.
6. Insolvency: No member of the Acquirer Group has been deregistered as a company or
otherwise dissolved, and there has not occurred an Insolvency Event in relation to any
member of the Acquirer Group.
7. Funding: The Acquirer will have available to it on an unconditional basis sufficient cash
reserves (whether from internal cash reserves or external funding arrangements or a
combination of both) to satisfy the Acquirer's obligations to pay the Scheme Consideration in
accordance with its obligations under this agreement, the Scheme and the Deed Poll.
Part 2: Acquirer Undertakings
1. The Acquirer will ensure that the Acquirer Information:
a. is prepared in good faith and on the understanding that each of the Company
Indemnified Persons will rely on that information to prepare the Scheme Booklet and
to propose and implement the Scheme in accordance with the Companies Act;
b. complies with the Companies Act, FMCA and all other applicable laws; and
c. in the form and context in which it appears in the Scheme Booklet, is true and correct
in all material respects and is not misleading or deceptive, including by omission, as at
the date the Scheme Booklet is sent to Shareholders.
3447-4830-2652 v2 64
2. The Acquirer will provide to the Company all new material information of which it becomes
aware after the Scheme Booklet has been sent to Shareholders and before the date of the
Scheme Meeting which is necessary to ensure that the Acquirer Information, in the form and
context in which that information appears in the version of the Scheme Booklet sent to
Shareholders, is not misleading or deceptive in any material respect, including by omission.
3. All information provided by or on behalf of the Acquirer to the Independent Adviser will be
provided in good faith and on the understanding that the Independent Adviser will rely upon
that information for the purpose of preparing the Independent Adviser's Report for inclusion
in the Scheme Booklet, will be true and correct in all material respects and will not be
misleading or deceptive, including by omission.
4. Subject to the Companies Act and the Scheme becoming Effective, the Acquirer undertakes
in favour of the Company and each Company Indemnified Person that it will:
a. subject to clause 5 below, for a period of 7 years from the Implementation Date,
ensure that the constitutions of the Company and each Bremworth Group member
continue to have equivalent obligations to those currently contained in their
constitutions at the date of this agreement that provide for each company to indemnify
each of its current and former directors and officers against any liability (excluding for
fraud or wilful misconduct) incurred by that person in his or her capacity as a director
or officer of the company to any person other than a member of the Bremworth Group;
and
b. procure that the Company and each Bremworth Group member complies with any
provisions in deeds of indemnity, access and insurance (including the D&O Run-off
Policy) made by them in favour of their respective directors and officers from time to
time.
5. The undertakings contained in clause 4 above are given:
a. until the earlier of the end of the relevant period specified in that clause or the relevant
Bremworth Group member ceasing to be part of the Acquirer Group; and
b. for the benefit of each current and former director and officer of the Bremworth Group
(from time to time) and are intended to be enforceable against the Acquirer by each of
them in accordance with the provisions of Part 2, Subpart 1 of the Contract and
Commercial Law Act 2017.
3447-4830-2652 v2 65
SCHEDULE 4
Timetable
EVENT INDICATIVE DATE (BUSINESS DAYS)
1. Announcement Upon signing this agreement
2. Submission of both Regulatory Applications Within 10 Business Days of Item 1
3. Initial draft Scheme Booklet (excluding
Independent Adviser's Report) provided to the
Acquirer
Within 18 Business Days of Item 1
4. Comments on the draft Scheme Booklet provided
by the Acquirer to the Company for review
Within 10 Business Days of Item 3
5. Final draft Scheme Booklet (excluding
Independent Adviser's Report) provided to the
Acquirer
Within 4 Business Days of Item 4
6. Comments on the final Scheme Booklet provided
by the Acquirer to the Company for review
Within 5 Business Days of Item 5
7. Scheme Booklet (including Independent Adviser's
Report) provided to the Takeovers Panel for
review
Within 3 Business Days of Item 6
8. Scheme Booklet (including Independent Adviser's
Report) approved by Takeovers Panel and
Takeovers Panel issues Letter of Intention
Within 15 Business Days of Item 7
9. Application for Initial Orders filed Within 3 Business Days of Item 8
10. First Court Date As soon as possible after Item 9, subject to
Court availability
11. Sealed Initial Orders and a Minute of the Court
from the First Court Date sent to the Takeovers
Panel (together with any updated material) with
application for Letter of Intention
As soon as possible after the Initial Orders are
granted
12. Regulatory Conditions and the IRD Ruling
Condition are satisfied
Prior to item 13
13. Scheme Booklet (including Independent Adviser's
Report) sent to Shareholders (provided that the
Regulatory Conditions and the IRD Ruling
Condition are satisfied)
Within 4 Business Days of the Initial Orders or
following item 12
3447-4830-2652 v2 66
EVENT INDICATIVE DATE (BUSINESS DAYS)
14. Scheme Meeting (provided that the Regulatory
Conditions and the IRD Ruling Condition are
satisfied)
20 Business Days following Item 13
15. Company applies to Takeovers Panel for No-
Objection Statement
Within 1 Business Day of Item 14
16. Takeovers Panel issues No-Objection Statement Within 4 Business Days of Item 15
17. Application for Final Orders filed Parties to agree optimal date to file having
regard to the Implementation Date definition
18. Second Court Date Within 5 Business Days of Item 17
19. Pro Forma Cash Balance statement provided to
Acquirer and the Court
No later than 9.00am on the Second Court Date
20. Final Orders Date Second Court Date (subject to Court
availability)
21. Suspend trading on NZX 1 Business Days after the Final Orders Date
22. Record Date 2 Business Days after the Final Orders Date
23. Implementation Date As per the definition of the term
“Implementation Date”
Docusign Envelope ID: 7578DDC3-6AE1-41B7-A318-086F0727D557
Russell
Mdeagh
SCHEDULE 5
Scheme Plan
Attached.
3447-4830-2652 v2 67
3447-4830-2652 v2 67
SCHEDULE 5
Scheme Plan
Attached.
Agreed form
1
SCHEME PLAN
SCHEME OF ARRANGEMENT PURSUANT TO PART 15 OF THE COMPANIES ACT 1993
PARTIES
BREMWORTH LIMITED ("Company")
FLOORSCAPE LIMITED ("Acquirer")
Each person who is registered in the Register on the Record Date as the holder of one or
more Scheme Shares (together the "Scheme Shareholders")
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Scheme Plan, unless the context otherwise requires:
"Business Day" means any day other than a Saturday, Sunday, or a statutory public holiday
in Auckland, New Zealand.
"Capital Return Amount" means, in aggregate, the Scheme Dividend Amount and the
Scheme Buyback Amount.
"Companies Act" means the Companies Act 1993.
"Computershare" means Computershare Investor Services Limited.
"Conditions" means:
(a) the conditions set out in clause 3.1 of the Scheme Implementation Agreement; and
(b) such other conditions made or required by the Court under section 236(1) or
section 237(1) of the Companies Act and approved in writing by the Company and
the Acquirer in accordance with clause 3.2 of the Scheme Implementation
Agreement.
"Consideration" means $0.75 in respect of each Scheme Share held by a Scheme
Shareholder on the Record Date.
"Court" means the High Court of New Zealand, Auckland Registry.
"Deed Poll" means the deed poll entered into by the Acquirer in favour of the Scheme
Shareholders.
"Encumbrance" has the meaning given to that term in the Scheme Implementation
Agreement.
"End Date" has the meaning given to that term in the Scheme Implementation Agreement.
"Final Orders" means, on application of the Company, orders that the Scheme will be
binding on the Company, the Acquirer, the Scheme Shareholders and/or such other persons
Agreed form
2
or class of persons as the Court may specify, in accordance with section 236(1) (and section
237, if applicable) of the Companies Act.
"Final Orders Date" means the day on which the Final Court Orders are sealed by the
Court.
"Government Agency" means any government, any department, officer or minister of any
government and any governmental, semi-governmental, regulatory, administrative, fiscal,
judicial or quasi-judicial agency, authority, board, commission, tribunal or entity.
"Implementation Date" has the meaning given to that term in the Scheme Implementation
Agreement and “Implementation” correspondingly means the time at which implementation
commences with the first step under clause 4.1(d).
"NZX" means NZX Limited and, where the context requires, the main board financial market
that it operates.
"NZX Listing Rules" means the NZX Listing Rules, as amended from time to time.
"Record Date" means 5:00pm on the date which is two Business Days before the
Implementation Date, or such other date agreed between the parties in writing.
"Register" means the Share register maintained by Computershare on behalf of the
Company.
"Registered Address" means, in relation to a Shareholder, the address shown in the
Register as at the Record Date.
"Scheme" means this scheme of arrangement, subject to any alterations or conditions made
or required by the Court under Part 15 of the Companies Act and approved by the Acquirer
and the Company in writing.
"Scheme Buyback Amount" means the Scheme Buyback Price multiplied by the number of
Scheme Buyback Shares.
"Scheme Buyback Price" means $[] per Scheme Buyback Share.
"Scheme Buyback Shares" means [] Shares for every [] Scheme Shares held by each
Scheme Shareholder, which Shares will be acquired by the Company and cancelled
pursuant to clause 4.1(e). For this purpose, fractions of a Share will be rounded up or down
to the nearest whole Share (with 0.5 rounded up).
"Scheme Dividend" means a cash dividend of $[] per Scheme Share imputed to the
maximum extent allowed for by the imputation credits held by the Company.
"Scheme Dividend Amount" means the Scheme Dividend multiplied by the number of
Scheme Shares.
"Scheme Implementation Agreement" means the scheme implementation agreement
dated [] 2025 between the Acquirer and the Company.
"Scheme Meeting" means the special meeting of Shareholders ordered by the Court to be
convened pursuant to section 236(2)(b) and 236A(2) of the Companies Act in respect of the
Agreed form
3
Scheme (and including any meeting convened following any adjournment or rescheduling of
that meeting).
"Scheme Payments" has the meaning given to that term in clause 5.1.
"Scheme Shares" means all of the Shares on issue on the Record Date.
"Share" means a fully paid ordinary share in the Company.
"Shareholder" means a person who is registered in the Register as the holder of one or
more Shares from time to time.
"Takeovers Panel" means the Takeovers Panel established by section 5(1) of the
Takeovers Act 1993.
"Trading Halt Date" means the date which is two Business Days after the Final Orders Date
or such other date as the Acquirer and the Company agree in writing.
"Trust Account" has the meaning given to that term in clause 3.1.
"Unconditional" means all of the Conditions having been satisfied or, if capable of waiver in
accordance with the Scheme Implementation Agreement, waived.
1.2 Interpretation: In this Scheme Plan, unless the context otherwise requires:
(a) headings are to be ignored in construing this document;
(b) the singular includes the plural and vice versa;
(c) words of any gender include all genders;
(d) a reference to a clause, is a reference to a clause of this Scheme Plan;
(e) a reference to a statute or other law includes regulations and other instruments
under it and consolidations, amendments, re-enactments or replacements of any of
them;
(f) reference to any document (including this Scheme Plan) includes reference to that
document (and, where applicable, any of its provisions) as amended, novated,
supplemented, or replaced from time to time;
(g) reference to a party, person or entity includes:
(i) an individual, partnership, firm, company, body corporate, corporation,
association, trust, estate, state, government or any agency thereof,
municipal or local authority and any other entity, whether incorporated or
not (in each case whether or not having a separate legal personality); and
(ii) an employee, sub-contractor, agent, successor, permitted assign,
executor, administrator and other representative of such party, person or
entity;
(h) "written" and "in writing" include any means of reproducing words, figures or
symbols in a tangible and visible form;
Agreed form
4
(i) the words "including" or "includes" do not imply any limitation;
(j) a reference to any time is a reference to that time in New Zealand; and
(k) references to money or "$" are to New Zealand dollars.
1.3 Things required to be done other than on a Business Day: Unless otherwise indicated, if
the day on which any act, matter or thing is to be done is a day other than a Business Day,
that act, matter or thing must be done on or by the next Business Day.
1.4 No contra proferentem: No term or condition of this Scheme Plan will be construed
adversely to a party solely because that party was responsible for the preparation of this
Scheme Plan or a provision of it.
1.5 Defined terms: Capital terms which are used but not otherwise defined in this Scheme Plan
have the meanings given to them in the Scheme Implementation Agreement.
2. CONDITIONS
2.1 Conditions: The implementation of the Scheme is conditional in all respects on:
(a) all of the Conditions having been satisfied or waived in accordance with the terms
of the Scheme Implementation Agreement by 8.00am on the Implementation Date;
and
(b) neither the Scheme Implementation Agreement nor the Deed Poll having been
terminated in accordance with its terms before 8.00am on the Implementation
Date.
3. CONSIDERATION INTO TRUST ACCOUNT
3.1 Obligation to pay Consideration into Trust Account: Subject to the Scheme
Implementation Agreement not having been terminated and the Scheme having become
Unconditional (except for the Conditions set out in clauses 3.1(f) and 3.1(g) of the Scheme
Implementation Agreement):
(a) the Acquirer must, by no later than 4.00pm on the Business Day before the
Implementation Date, deposit (or procure the deposit of) in immediately available
cleared funds an amount equal to the aggregate amount of the Consideration
payable to Scheme Shareholders; and
(b) the Company must, by no later than 4.00pm on the Business Day before the
Implementation Date, deposit (or procure the deposit of) in immediately available
cleared funds an amount equal to the Capital Return Amount payable to Scheme
Shareholders,
in a New Zealand dollar denominated trust account operated by Computershare (the "Trust
Account").
Agreed form
5
3.2 Details of Trust Account:
(a) Subject to clauses 3.2(b), 5.4, 5.5 and 5.6, the Trust Account will be established
and operated by Computershare on the basis that the:
(i) Consideration is held on trust for the Acquirer and to its order, such that
only the Acquirer may direct how the Consideration will be paid from the
Trust Account; and
(ii) Capital Return Amount is held on trust for the Company and to its order,
such that only the Company may direct how the Capital Return Amount
will be paid from the Trust Account.
(b) Clause 3.2(a) is subject to a standing joint written direction from the Acquirer and
the Company to Computershare to make payment of the amounts contemplated in
clause to the Scheme Shareholders in accordance with this Scheme Plan.
(c) The details of the Trust Account will be provided to the Acquirer by (or on behalf of)
Computershare not less than three Business Days before the Implementation
Date.
3.3 Interest: Subject to Implementation of the Scheme, any interest earned on:
(a) the Consideration, deposited in the Trust Account, up to Implementation, will be
payable to the Acquirer by Computershare as directed by the Acquirer (less bank
fees and other third party charges relating to the Trust Account); and
(b) the Capital Return Amount, deposited in the Trust Account, up to Implementation,
will be payable to the Company by Computershare as directed by the Company
(less bank fees and other third party charges relating to the Trust Account).
3.4 Scheme not implemented: Should the implementation of the Scheme not occur by 7.00pm
on the Implementation Date for any reason, Computershare will immediately repay:
(a) the Consideration, together with any interest earned on the Consideration, to the
Acquirer to such New Zealand dollar denominated account instructed to
Computershare by the Acquirer; and
(b) the Capital Return Amount, together with any interest earned on the Capital Return
Amount, to the Acquirer to such New Zealand dollar denominated account
instructed to Computershare by the Company.
4. IMPLEMENTATION
4.1 Implementation: Subject to:
(a) any amendments or variations as may be required by the Court;
(b) the Company and the Acquirer providing Computershare with written notice that
the Scheme is Unconditional after 8.00am and prior to 9.00am on the
Implementation Date;
Agreed form
6
(c) the Consideration and the Capital Return Amount having been deposited into the
Trust Account in accordance with clause 3.1 and Computershare confirming in
writing to the Company and the Acquirer that this has occurred,
commencing at 9.00 am on the Implementation Date, the following steps will occur
sequentially:
(d) the Company shall instruct Computershare to pay or procure the payment from the
Trust Account to each Scheme Shareholder an amount equivalent to the Scheme
Dividend for each Scheme Share held by that Scheme Shareholder as set out in
the Register as at the Record Date;
(e) without any further act or formality, the Scheme Buyback Shares held by each
Scheme Shareholder shall be acquired by the Company and immediately
cancelled;
(f) the Company shall instruct Computershare to pay or procure the payment from the
Trust Account to each Scheme Shareholder an amount equal to the Scheme
Buyback Price for each Scheme Buyback Share which has been acquired and
cancelled by the Company in accordance with clause 4.1(e) above;
(g) without any further act or formality, all the remaining Scheme Shares, together with
all rights and entitlements attaching to them as at the Implementation Date, will be
transferred to the Acquirer, and the Company must enter, or procure
Computershare enter, the name of the Acquirer in the Register as holder of all of
the remaining Scheme Shares; and
(h) in accordance with the instructions set out in clause 3.2(b), subject to compliance
in full with clause 4.1(g), the Company must instruct Computershare to pay or
procure the payment from the Trust Account of the Consideration to each Scheme
Shareholder based on the number of Scheme Shares held by such Scheme
Shareholder as set out in the Register as at the Record Date.
5. PAYMENT OF CONSIDERATION
5.1 Method of payment: The payment obligations under clauses 4.1(d), 4.1(f) and 4.1(h)
("Scheme Payments") will be satisfied by:
(a) where a Scheme Shareholder has, prior to the Record Date, provided bank
account details to enable Computershare and the Company to make payments of
New Zealand dollars by electronic funds transfer, Computershare must pay the
Scheme Payments in New Zealand dollars to the Scheme Shareholder by
electronic funds transfer of the relevant amount to the bank account nominated by
that Scheme Shareholder;
(b) where a Scheme Shareholder that has an address outside of New Zealand has,
prior to the Record Date, provided sufficient written instructions to enable
Computershare to make payment in foreign currency (and Computershare is able
to make payment in that currency), Computershare must pay the Scheme
Payments (less any applicable costs and fees) to such Scheme Shareholder (in the
currency nominated by such Scheme Shareholder at such exchange rate that
Computershare may determine to convert the New Zealand dollar amount payable
to that foreign currency); or
Agreed form
7
(c) where a Scheme Shareholder has not provided the information and/or taken the
steps contemplated by clauses 5.1(a) and 5.1(b) to enable payment to be made to
such Scheme Shareholder in a manner contemplated by one of those clauses (or if
an electronic payment to such Scheme Shareholder is rejected by the recipient
bank) Computershare must retain the Scheme Payments which are owed to that
Scheme Shareholder in the Trust Account to be claimed by the Scheme
Shareholder in accordance with clause 5.5.
If a Shareholder has given more than one payment direction, then the later in time will be
followed.
5.2 Joint holders: In the case of Scheme Shares held in joint names:
(a) the Scheme Payments are payable to the bank account nominated by the joint
holders or, at the sole discretion of the Company, nominated by the holder whose
name appears first in the Register as at the Record Date; and
(b) any other document required to be sent under this Scheme Plan, will be sent to
either, at the sole discretion of the Company, the holder whose name appears first
in the Register as at the Record Date or to the joint holders.
5.3 Surplus in Trust Account: To the extent that, following satisfaction of the obligations to pay
the Scheme Payments, and any interest as contemplated by clause 3.3, there is a surplus in
the Trust Account, that surplus (less the aggregate amount of the Scheme Payments
retained in the Trust Account in accordance with clause 5.1(c) or clause 5.6(b), and less
bank fees and other third party charges relating to the Trust Account) shall be promptly paid
to the Acquirer as directed by the Acquirer in writing.
5.4 Holding on Trust: The Company must, in respect of any monies retained by
Computershare pursuant to clause 5.1(c) or clause 5.6(b), instruct Computershare to hold
such monies in the Trust Account on trust for the relevant Scheme Shareholders for a period
of two years and thereafter, subject to clause 5.6, to pay any remaining money in the Trust
Account to the Company.
5.5 Unclaimed monies: During the period of two years commencing on the Implementation
Date, on request in writing from a Scheme Shareholder that has not received payment of the
Scheme Payments in accordance with clause 5.1(a) or 5.1(b), Computershare must, if such
Scheme Shareholder has taken the necessary steps required to effect payment to such
Scheme Shareholder in a manner contemplated by clause 5.1(a) or 5.1(b), pay to that
Scheme Shareholder the Scheme Payments held on trust for that Scheme Shareholder in a
manner contemplated by clause 5.1(a) or 5.1(b) (or in any other manner approved by
Computershare and agreed to by that Scheme Shareholder).
5.6 Orders of a court or Government Agency: Notwithstanding any other provision of this
Scheme Plan, if written notice is given to the Company prior to the Record Date of an order
or direction made by a court of competent jurisdiction or a Government Agency that:
(a) requires an amount to be provided to a third party in respect of Scheme Shares
held by a particular Scheme Shareholder, which would otherwise be payable to
that Scheme Shareholder as Scheme Payments in accordance with clause 4.1, the
Company will be entitled to procure, and the Acquirer will be deemed to have
instructed Computershare to ensure, that provision of that amount is made in
accordance with that order or direction; or
Agreed form
8
(b) prevents any Scheme Payments from being provided to any particular Scheme
Shareholder in accordance with clause 4.1, or the payment of any Scheme
Payments is otherwise prohibited by applicable law, the Scheme Payments will be
retained in the Trust Account until such time as provision of the Scheme Payments
is made in accordance with clause 4.1 or clause 5.5 (as applicable) is permitted by
that order or direction or otherwise by law,
and such provision or retention (as the case may be) will constitute the full discharge of the
Acquirer's and the Company's obligations to pay the Scheme Payments with respect to the
amount so provided or retained.
5.7 Exchange Rate: If a Scheme Shareholder elects to be paid in a foreign currency as
contemplated by clause 5.1(b), the conversion of the Scheme Payments into such foreign
currency will be undertaken in a manner and at an exchange rate determined by
Computershare, and neither the Company nor the Acquirer will be responsible for (or have
any liability in connection with) any such conversion (including for the exchange rate at which
the relevant conversion occurs.
6. DEALING IN SHARES
6.1 Trading Halt:
(a) Following the sealing of the Final Court Orders the Company will advise NZX of the
grant of the Final Court Orders and, once known, the Trading Halt Date and
Record Date and use its reasonable endeavours to procure that the NZX suspend
trading in the Shares from the close of trading on the Trading Halt Date.
(b) The Company must not accept for registration, nor recognise for any purpose
(except a transfer to the Acquirer pursuant to this Scheme Plan and any
subsequent transfer by the Acquirer or its successors in title), any transfer or
transmission application or other request received after 7.00 pm on the Record
Date or received prior to such time, but not in registrable or actionable forms.
6.2 Register:
(a) The Company must register registrable transmission applications or registrable
transfers of Shares received prior to the Trading Halt Date before 7.00pm on the
Record Date provided that, for the avoidance of doubt, nothing in this clause 6.2(a)
requires the Company to register a transfer that relates to a transfer of Shares on
which the Company has a lien.
(b) A holder of Scheme Shares (and any person claiming through that holder) must not
dispose of, or purport or agree to dispose of, any Scheme Shares, or any interest
in them, after close of trading on the Trading Halt Date otherwise than pursuant to
this Scheme Plan, and any attempt to do so will have no effect and the Company
and the Acquirer shall be entitled to disregard any such disposal.
(c) For the purposes of determining entitlements to the Scheme Payments, but subject
to the requirements of the NZX Listing Rules, the Company must maintain the
Register in accordance with the provisions of this clause 6 until the Scheme
Payments have been paid to the Scheme Shareholders. The Register in this form
will solely determine entitlements to the Scheme Payments.
Agreed form
9
(d) From 7.00pm on the Record Date, each entry that is current on the Register (other
than entries on the Register in respect of the Acquirer), will cease to have effect
except as evidence of entitlement to the Scheme Payments in respect of the
Shares relating to that entry.
(e) As soon as possible on the first Business Day after the Record Date and in any
event by 5:00pm on that day, the Company must make available to the Acquirer in
the form the Acquirer reasonably requires, details of the names, Registered
Addresses and holdings of Shares for each Scheme Shareholder as shown in the
Register on the Record Date.
7. GENERAL PROVISIONS
7.1 Amendments to Consideration: The Acquirer may increase the Consideration by written
notice at any time to the Company prior to the Scheme Meeting, provided that the Scheme
Implementation Agreement has not been terminated in accordance with its terms prior to the
receipt of such notice by the Company.
7.2 Title to and rights in Scheme Shares:
(a) To the extent permitted by law, the Scheme Shares (including all rights and
entitlements attaching to the Scheme Shares) transferred under this Scheme Plan
to the Acquirer will, at the time of transfer to the Acquirer, vest in the Acquirer free
from all Encumbrances and free from any restrictions on transfer of any kind.
(b) Each Scheme Shareholder is taken to have warranted to the Acquirer on the
Implementation Date that all their Scheme Shares (including any rights and
entitlements attaching to those shares) which are transferred under this Scheme
Plan will, at the time of transfer, be fully paid and free from all Encumbrances and
restrictions on transfer of any kind, and that they have full power and capacity to
transfer their Shares to the Acquirer together with any rights and entitlements
attaching to those Shares.
7.3 Authority given to Company: Each Scheme Shareholder, without the need for any further
act:
(a) on the Final Orders Date, irrevocably appoints the Company as its attorney and
agent for the purpose of enforcing the Deed Poll against the Acquirer (but without
limiting each Scheme Shareholder's right to itself enforce the Deed Poll); and
(b) on the Implementation Date, irrevocably appoints the Company as its attorney and
agent for the purpose of executing any document or doing or taking any other act
necessary, desirable or expedient to give effect to the Scheme and the
transactions contemplated by it,
and the Company accepts each such appointment. Each such attorney and agent, may sub-
delegate its functions, authorities or powers under this clause 7.3 to one or more of the
Company's directors or senior managers.
7.4 Binding effect of Scheme:
(a) The Scheme binds:
Agreed form
10
(i) the Company;
(ii) the Acquirer; and
(iii) all of the Scheme Shareholders (including those who did not attend the
Scheme Meeting to vote on the Scheme, did not vote at the Scheme
Meeting, or voted against this Scheme at the Scheme Meeting).
(b) In the event of any inconsistency, this Scheme Plan overrides the constitution of
the Company and the Companies Act.
7.5 End Date: If the Scheme has not become Unconditional on or before the End Date, or if the
Scheme Implementation Agreement is terminated in accordance with its terms at any time,
this Scheme Plan is immediately void and of no further force or effect (other than any
provision of the Scheme or this Scheme Plan relating to the repayment of any relevant
amounts deposited in accordance with clause 3.1 which shall be repaid in the manner
contemplated by 3.4 (with the necessary adjustments, and less bank fees and other third
party charges relating to the Trust Account)).
7.6 No liability when acting in good faith: Each Scheme Shareholder agrees that none of the
directors, officers or employees of the Company or the Acquirer, will be liable for anything
done or omitted to be done in the performance of the Scheme in good faith.
7.7 Successor obligations: To the extent that any provision of the Scheme or this Scheme
Plan imposes any obligation on the Acquirer or the Company that continues or arises after
the implementation of the Scheme, such obligation may instead be performed by any
successor or related company of the Acquirer or the Company (as applicable) in which case
the obligation will be satisfied as if performed by the Acquirer or the Company (as
applicable).
7.8 Governing law:
(a) This Scheme Plan and any non-contractual obligations arising out of or in
connection with it is governed by and must be construed in accordance with the
laws of New Zealand.
(b) The courts having jurisdiction in New Zealand have non-exclusive jurisdiction to
settle any dispute arising out of or in connection with this Scheme Plan (including a
dispute relating to any non-contractual obligations arising out of or in connection
with this Scheme Plan) and the parties irrevocably submit to the non-exclusive
jurisdiction of the courts having jurisdiction in New Zealand.
Docusign Envelope ID: 7578DDC3-6AE1-41B7-A318-086F0727D557
Russell
Mdeagh
SCHEDULE 6
Deed Poll
Attached.
3447-4830-2652 v2 68
3447-4830-2652 v2 68
SCHEDULE 6
Deed Poll
Attached.
Agreed form
4256767 v1
Deed Poll
relating to a scheme of arrangement under Part 15 of the
Companies Act 1993 involving Bremworth Limited
PARTIES
Floorscape Limited
Acquirer
Mohawk Industries, Inc.
Acquirer Guarantor
Each registered holder of Scheme Shares as at 5.00pm on the
Record Date
Scheme Shareholders
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DEED dated 2025
PARTIES
Floorscape Limited
("Acquirer")
Mohawk Industries, Inc.
("Acquirer Guarantor")
Each registered holder of Scheme Shares as at 5.00pm on the Record
Date
("Scheme Shareholders")
INTRODUCTION
A. Bremworth Limited ("Company"), the Acquirer Guarantor and the Acquirer are parties to the
Scheme Implementation Agreement.
B. The Company has agreed in the Scheme Implementation Agreement to propose a scheme
of arrangement between the Company, the Acquirer Guarantor, the Acquirer and the
Scheme Shareholders, the effect of which will be that all Scheme Shares will be transferred
to the Acquirer, and the Acquirer will provide or procure the provision of the Consideration to
the Scheme Shareholders.
C. The Acquirer is entering into this Deed Poll for the purpose of undertaking in favour of the
Scheme Shareholders to pay the Consideration to the Scheme Shareholders in accordance
with the terms of the Scheme Plan.
D. The Acquirer Guarantor is entering into this Deed Poll for the purposes of undertaking to the
Scheme Shareholders to procure that all obligations of the Acquirer under this Deed Poll are
met.
COVENANTS
1. DEFINED TERMS AND INTERPRETATION
1.1 Defined terms: In this Deed, unless the context requires otherwise:
"Final Orders" means orders on application of the Company, that the Scheme shall be
binding on the Company, the Acquirer Guarantor, the Acquirer, the Scheme Shareholders
and such other persons or class of persons as the Court may specify, in accordance with
section 236(1) (and section 237, if applicable) of the Companies Act;
"Scheme Implementation Agreement" means the scheme implementation agreement
between the Company, the Acquirer Guarantor and the Acquirer dated [] 2025; and
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"Scheme Plan" means the scheme plan attached as Schedule 5 to the Scheme
Implementation Agreement, subject to any alterations or conditions approved by the Acquirer
Guarantor, the Acquirer and the Company in writing and which are disclosed to the Court
prior to the Court making the Final Orders.
1.2 Words defined in the Scheme Plan: Words defined in the Scheme Plan which are not
separately defined in this Deed Poll have the same meaning when used in this Deed Poll.
1.3 Interpretation: Clauses 1.2, 1.3 and 1.4 of the Scheme Plan apply to the interpretation of
this Deed Poll, except that references to "this Scheme Plan" are to be read as reference to
"this Deed Poll".
2. NATURE OF THIS DEED POLL
2.1 Third party rights and appointment of attorney:
(a) This Deed Poll is intended to, and does, confer a benefit on, and therefore may be
relied on and enforced by, any Scheme Shareholder in accordance with its terms
under Part 2, Subpart 1 of the Contract and Commercial Law Act 2017 (but not
otherwise), even though the Scheme Shareholders are not party to it.
(b) Under the Scheme Plan each Scheme Shareholder appoints the Company as the
Scheme Shareholder's attorney and agent to enforce this Deed Poll against the
Acquirer Guarantor and/or the Acquirer with effect on and from the date prescribed
for such appointment in the Scheme Plan (but without limiting each Scheme
Shareholder's right to itself enforce this Deed Poll).
(c) Notwithstanding clauses 2.1(a) and 2.1(b), this Deed Poll may be varied by the
Acquirer Guarantor, the Acquirer and the Company in accordance with clause 8.2
without the approval of any Scheme Shareholders.
2.2 Continuing obligations: This Deed Poll is irrevocable and, subject to clause 3, remains in
full force and effect until either:
(a) the Acquirer and the Acquirer Guarantor have each fully performed its obligations
under it; or
(b) it is terminated under clause 4.
3. CONDITIONS
3.1 Conditions: This Deed Poll, and the obligations of the Acquirer and the Acquirer Guarantor
under it, are conditional in all respects on the Scheme becoming Unconditional.
4. TERMINATION
4.1 Termination: The obligations of the Acquirer Guarantor and the Acquirer under this Deed
Poll will automatically terminate, and the terms of this Deed Poll will be of no force or effect,
if:
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(a) the Scheme Implementation Agreement is validly terminated in accordance with its
terms before the Scheme becomes Unconditional; or
(b) the Scheme does not become Unconditional on or before 5.00pm on the End Date,
unless the Acquirer, the Acquirer Guarantor and the Company otherwise agree in writing.
4.2 Consequences of termination: If this Deed Poll is terminated under clause 4.1, then the
Acquirer Guarantor and the Acquirer are released from its obligations to further perform this
Deed Poll.
5. SCHEME CONSIDERATION
5.1 Subject to the Scheme Implementation Agreement not being terminated and the Scheme
having become Unconditional (except for the Conditions set out in clauses 3.1(f) and 3.1(g)
of the Scheme Implementation Agreement), the Acquirer undertakes in favour of each
Scheme Shareholder to deposit, or procure the deposit of, in immediately available cleared
funds, by no later than 4.00pm on the Business Day before the Implementation Date, an
amount equal to the aggregate amount of the Consideration payable to all Scheme
Shareholders on the Implementation Date as set out in the Scheme Plan, such deposit to be
made into the Trust Account to be held and dealt with by Computershare in accordance with
the Scheme Plan.
5.2 Subject to clause 3:
(a) the Acquirer irrevocably acknowledges and agrees that, subject to compliance in
full by the Company with its obligations under clause 4.1 of the Scheme Plan, the
Consideration deposited into the Trust Account must be, and will be, paid in
accordance with clause 5 of the Scheme Plan in satisfaction of the Scheme
Shareholders' respective entitlements to receive the Consideration under the
Scheme in accordance with the Scheme Plan; and
(b) the Acquirer Guarantor irrevocably undertakes in favour of each Scheme
Shareholder to procure that all obligations of the Acquirer in this Deed Pool are
met.
6. WARRANTIES
6.1 The Acquirer Guarantor and the Acquirer each warrant in favour of each Scheme
Shareholder that:
(a) the Acquirer is a company validly incorporated in New Zealand;
(b) it has the corporate power to enter into, and perform its obligations under, this
Deed Poll and to carry out the transactions contemplated by this Deed Poll;
(c) it has taken all necessary corporate action to authorise its entry into this Deed Poll
and has taken, or will prior to the Implementation Date take, all necessary
corporate action to authorise the performance of this Deed Poll and to carry out the
transactions contemplated by this Deed Poll;
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(d) this Deed Poll is valid and binding on it and enforceable against it in accordance
with its terms; and
(e) this Deed Poll does not conflict with, or result in the breach of or default under, any
provision of its constitution, or any writ, order or injunction, judgment, law, rule or
regulation to which it is a party or subject or by which it is bound.
7. NOTICES
7.1 Manner of giving notice: Any notice or other communication to be given under this Deed
Poll must be in writing and may be physically delivered or sent by email to the Acquirer
Guarantor and/or the Acquirer at:
Address: Godfrey Hirst, 142 Kerrs Road, Wiri, Manukau, Auckland, New
Zealand
Email: tania.pauling@godfreyhirst.com
For the attention of: Tania Pauling
or at any such other address or email address notified for this purpose to the other parties
under this clause.
7.2 When notice given: In the absence of earlier receipt, any notice or other communication is
deemed to have been given:
(a) if delivered, on the date of delivery; or
(b) if sent by email, four business hours (being the hours between 9.00am and 5.00pm
on a Business Day in the jurisdiction of the recipient) after the time sent (as
recorded on the device from which the sender sent the email) unless the sender
receives an automated message that the email has not been delivered (excluding
an "out of office" automated message),
but if the notice or other communication would otherwise be taken to be received after
5.00pm or on a Saturday, Sunday or public holiday in the place of receipt then the notice or
communication is taken to be received at 9.00am on the next day that is not a Saturday,
Sunday or public holiday in the place of receipt.
7.3 Proof of service: In proving service of a notice or other communication, it is sufficient to
prove that delivery was made or that the e-mail was properly addressed and transmitted by
the sender's server into the network and there was no apparent error in the operation of the
sender's e-mail system, as the case may be.
7.4 Documents relating to legal proceedings: This clause 7 does not apply in relation to the
service of any claim, form, notice, order, judgment or other document relating to or in
connection with any proceedings, suit or action arising out of or in connection with this Deed
Poll.
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8. GENERAL
8.1 Waiver:
(a) The Acquirer Guarantor and the Acquirer may not rely on the words or conduct of
any Scheme Shareholder as a waiver of any right in respect of the Scheme unless
the waiver is in writing and signed by the Scheme Shareholder granting the waiver.
(b) For the purposes of clause 8.1(a):
(i) conduct includes a delay in exercising a right;
(ii) right means any right arising under or in connection with this Deed Poll
and includes the right to rely on this clause; and
(iii) waiver includes an election between rights and remedies, and conduct
which might otherwise give rise to an estoppel.
8.2 Variation:
(a) Subject to clauses 8.2(b) and 8.2(c), this Deed Poll may not be varied.
(b) Before the date on which the Final Orders are made, this Deed Poll may be varied
by agreement in writing between the Acquirer Guarantor, the Acquirer and the
Company, in which event the Acquirer Guarantor and the Acquirer will enter into a
further deed poll in favour of the Scheme Shareholders giving effect to the
variation.
(c) If the Court orders that it is a condition of the Scheme that the Acquirer Guarantor
and the Acquirer enters into a new deed poll which has the effect of reversing any
variation under clause 8.2(b), then, if the Acquirer Guarantor and the Acquirer so
agree, the Acquirer Guarantor and the Acquirer must promptly enter into a further
deed poll in favour of the Scheme Shareholders to give effect to the reversal of that
variation.
8.3 Cumulative rights: The rights, powers and remedies of the Scheme Shareholders under
this Deed Poll are cumulative and do not exclude any other rights, power or remedies
provided by law independently of this Deed Poll.
8.4 Assignment: The rights and obligations of the Acquirer and each Scheme Shareholder
under this Deed Poll are personal. They cannot be assigned, charged or otherwise dealt
with at law or in equity. Any purported dealing in contravention of this clause 8.4 is invalid.
8.5 Further assurance: The Acquirer Guarantor and the Acquirer must, each at its own
expense, do all things reasonably required of it to give full force and effect to this Deed Poll
and the transactions contemplated by it.
8.6 Governing law and jurisdiction:
(a) This Deed Poll and any non-contractual obligations arising out of or in connection
with it are governed by the law applying in New Zealand.
(b) The courts having jurisdiction in New Zealand have exclusive jurisdiction to settle
any dispute arising out of or in connection with this Deed Poll (including a dispute
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relating to any non-contractual obligations arising out of or in connection with this
Deed Poll) and the Acquirer Guarantor and the Acquirer irrevocably submits to the
exclusive jurisdiction of the courts having jurisdiction in New Zealand.
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Executed and delivered as a deed poll
FLOORSCAPE LIMITED
(Company Number: [1496430])
By:
Signature of Director Signature of Director
Name of Director Name of Director
MOHAWK INDUSTRIES, INC.
By:
Signature of authorised officer
Name of authorised officer
3447-4830-2652 v2 69
SCHEDULE 7
Pro Forma Cash Balance
ACCOUNT NAME BALANCE (LOCAL) FX RATE ACTUAL
BALANCE AS
AT FINAL
ORDERS DATE
(NZD)
International currency accounts
CB USD account [] [] []
CB GBP account [] [] []
CB Euro account [] [] []
Bremworth Australia [] [] []
Cash position (International) [] [] []
New Zealand accounts
Bremworth Carpets and Rugs []
Bremworth Outlet []
Bremworth []
Bremworth Spinners []
Elco Direct []
Term Deposit []
Cash position (Local) []
Cash position (Total) as at Final Orders
Date
(before Capital Return)
[]
Less: Capital Return Amount (as that term is defined in the Scheme Plan) []
Less: Estimated Cash outflows for the period from Final Orders Date to the
Implementation Date
[]
Pro Forma Cash Balance
(immediately following Capital Return)
[]
---
3455-5241-2729 v1 1
2 October 2025
D I S C L O S U R E D O C U M E N T R E L A T I N G T O T H E
A C Q U I S I T I O N O F U N A L L O C A T E D S C H E M E
S H A R E S
INTRODUCTION
This document is provided to all shareholders in accordance with the requirements of section 62 of the
Companies Act 1993 ("Act") and sets out details of the proposal by Bremworth Limited ("Bremworth" or
"Company") to buy back certain ordinary shares previously issued to Bremworth Share Scheme
Limited ("LTI Trustee") pursuant to the Bremworth 2022 Long-Term Incentive Scheme ("LTI Scheme")
by Bremworth.
EXPLANATORY STATEMENT
The 1,472,154 ordinary shares held by the LTI Trustee constitute shares that were previously allocated
under the rules of the LTI Scheme to members of Bremworth's senior management who have since
ceased employment with the Company or whose entitlements under the LTI Scheme have since
lapsed ("Unallocated Scheme Shares"). The Board has discretion to determine how the Unallocated
Scheme Shares are dealt with and has resolved to transfer the Unallocated Scheme Shares to the
Company ("Share Buyback").
No consideration is to be paid for the acquisition of the Unallocated Scheme Shares as the LTI Trustee
has no beneficial interest in the shares, which were issued for nil consideration and held for
participants who have now left employment with the Company or whose entitlements under the LTI
Scheme have now lapsed.
The Unallocated Scheme Shares will be cancelled immediately on acquisition by Bremworth, reducing
the total number of ordinary shares in Bremworth on issue from 70,561,519 to 69,089,365.
Accordingly, each Bremworth shareholder will benefit by gaining an increase in their proportionate
shareholding in Bremworth.
BOARD RESOLUTIONS
In accordance with section 62 of the Act, the text of the resolutions required by section 61 of the Act is
as follows:
RESOLVED that:
1. For the purposes of section 61(1) of the Act:
(a) the Share Buyback is of benefit to the Company's remaining shareholders; and
(b) the terms of the Share Buyback and the nil consideration offered for the
Unallocated Scheme Shares are fair and reasonable to the Company's remaining
shareholders.
2. The Board has reached the conclusions set out above for the following reasons.
3455-5241-2729 v1 2
(a) The LTI Trustee acquired the Unallocated Scheme Shares for nil consideration.
The LTI Trustee has no beneficial interest in the Unallocated Scheme Shares as it
held these for participants who have now left employment with the Company or
whose entitlements under the LTI Scheme have now lapsed. Accordingly, the
Unallocated Scheme Shares will be transferred to the Company for nil
consideration.
(b) Given the Unallocated Scheme Shares will be immediately cancelled on acquisition
by the Company, this will result in a proportional increase in the shareholding of the
remaining shareholders. As a result, each remaining shareholder's ownership
percentage will increase to account for the reduction in the total amount of shares
on issue, providing a marginal benefit to the remaining shareholders.
RELEVANT INTERESTS
The Unallocated Scheme Shares are held on trust by the LTI Trustee and no other person has any
relevant interest in them.
SHAREHOLDER RIGHTS
The offer by the Company to acquire the Unallocated Scheme Shares may be made not less than 10
working days and not more than 12 months after this document has been sent to shareholders.
Section 61(8) of the Act confers on shareholders and the Company certain rights to apply to the court
for an order restraining the proposed acquisition of the Unallocated Scheme Shares.
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.