8.2 Underwriting AgreementBy an agreement between RM Corporate...

8.2 Underwriting Agreement
By an agreement between RM Corporate Finance Pty Ltd (ACN 108 084 386) (Underwriter) and the Company (Underwriting Agreement) dated 11 April 2011, the Underwriter agreed to fully underwrite the number of Shares offered under the Offer, being approximately 31,681,279 Shares and 31,681,279 Options (Underwritten Securities) at a total subscription price of $3,801,753 (Underwritten Amount).
Pursuant to the Underwriting Agreement, the Company has agreed to pay the Underwriter a management fee of 1% and an underwriting fee of 5%, (excluding GST), of the value of the Underwritten Amount, as well as reimbursement of expenses.
All definitions and clauses referred to in the below summary are as applied in the Underwriting Agreement.
The obligation of the Underwriter to fully underwrite the Offer is subject to certain events of termination. The Underwriter may terminate its obligations under the Underwriting Agreement if:
(a) Prospectus: any of the following occurs in relation to the Prospectus:
(i) The Underwriter reasonably forms the view that there is a material omission, it contains a material statement which is misleading or deceptive, or a material statement has become misleading or deceptive;
(ii) The Underwriter reasonably forms the view that any projection or forecast in the Prospectus becomes, to a material extent, incapable of being met or unlikely to be met in the projected time;
(iii) ASIC gives notice of intention to hold a hearing under section 739(2) of the Corporations Act or makes an interim order under section 739(3) of the Corporations Act; or
(iv) Any person other than the Underwriter who consented to being named in the Prospectus withdraws that consent;
(b) Supplementary Prospectus: the Underwriter reasonably forms the view that a supplementary or replacement document (as appropriate) must be lodged with ASIC under section 719 or section 724 of the Corporations Act and the Company does not lodge a supplementary or replacement
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document (as the case may be) in the form and content and within the time reasonably required by the Underwriter;
(c) ASX listing: ASX does not give approval for the Offer Securities to be listed for official quotation, or if approval is granted, the approval is subsequently withdrawn, qualified or withheld;
(d) Index change: the ASX All Ordinaries Index or the Dow Jones Industrial Average Index as determined at close of trading falls at least 10% below their respective levels at the close of trading on the date of the Underwriting Agreement for a total of three consecutive trading days during the Underwriting Period;
(e) Indictable offence: a director of the Company or any Related Corporation is charged with an indictable offence;
(f) Return of capital or financial assistance: the Company or a Related Corporation takes any steps to undertake a proposal contemplated under section 257A or passes or takes any steps to pass a resolution under section 260B of the Corporations Act, without the prior written consent of the Underwriter;
(g) Banking facilities: the Company?s bankers terminate or issue any demand or penalty notice or amend the terms of any existing facility or claim repayment or accelerated repayment of any facility or require additional security for any existing facility;
(h) Change in laws: any of the following changes of law occurs:
i. The introduction of legislation into the Parliament of the Commonwealth of Australia or of any State or Territory of Australia; or
ii.
iii. The public announcement of prospective legislation or policy by the Federal Government, or the Government of any State or Territory; or
iv. The adoption by the ASIC, its delegates, ASX, the Reserve Bank of Australia or any other regulatory authority of any regulations or policy; which does or is likely to prohibit, restrict or regulate the principal business of the Company, the Offer or the operation of stock markets generally;
(i) Failure to comply: the Company or any Related Corporation fails to comply with any of the following:
i. A provision of its Constitution;
ii. Any statute;
iii. A requirement, order or request, made by or on behalf of the ASIC or any governmental agency; or
iv. Any material agreement entered into by it, which is likely to prohibit or materially restrict the business of the Company or the Offer;
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(j) Alteration of capital structure or constitution: the Company alters its capital structure or its Constitution without the prior written consent of the Underwriter;
(k) Extended Force Majeure: a force majeure, which prevents or delays an obligation under the Underwriting Agreement, lasting in excess of 2 weeks occurs;
(l) Default: the Company is in default of any of the terms and conditions of the Underwriting Agreement or breaches any warranty or covenant given or made by it under the Underwriting Agreement;
(m) Adverse change: any adverse change occurs which materially impacts or is likely to impact the assets, operational or financial position of the Company or a Related Corporation (including but not limited to an administrator, receiver, receiver and manager, trustee or similar official being appointed over any of the assets or undertaking of the Company or a Related Corporation);
(n) Investigation: any person is appointed under any legislation in respect of companies to investigate the affairs of the Company or a Related Corporation;
(o) Due Diligence: there is a material omission from the results of the due diligence investigation performed in respect of the Offer or the results of the investigation or the verification material are false or misleading;
(p) Prescribed Occurrence: a prescribed occurrence occurs;
(q) Suspension of debt payments: the Company suspends payment of its debts generally;
(r) Event of Insolvency: an event of insolvency occurs in respect of the Company or a Related Corporation;
(s) Judgment against a Related Corporation: a judgment in an amount exceeding $100,000 is obtained against the Company or a Related Corporation and is not set aside or satisfied within 7 days;
(t) Calamity: the occurrence of any calamity or crisis or any change in financial, political or economic conditions or currency exchange rates or controls in Australia or any restriction or limitation on the nature/basis of trading of equities on ASX;
(u) Market Conditions: any material adverse change or disruption occurs in the existing financial markets, political or economic conditions of Australia, Japan, the United Kingdom, the United States of America or the international financial markets or any material adverse change occurs in national or international political, financial, economic conditions, in each case the effect of which is that, in the reasonable opinion of the Underwriters, reached in good faith, it is impracticable to market the Offer or to enforce contracts to issue and allot or sub-underwrite the securities pursuant to the Prospectus or that the success of the Offer is likely to be adversely affected.
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The Underwriting Agreement also contains a number of indemnities, representations and warranties from the Company to the Underwriter that are considered standard for an agreement of this type.
8.3 Additional Disclosure in relation to Underwriting
The Underwriter currently has voting power in the Company of 0%.
Technically, the Underwriter could acquire voting power of up to 20% of the Company, on an undiluted basis, if no Shareholders take up their Entitlements under the Offer and the Underwriter subscribes for the Shortfall in its own right.
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