AI assistant
SPARC AI INC. M&A Activity 2025
47908_rns_2025-11-24_abcbac7f-033f-4faf-ada5-e0a64ed1af73.pdf
M&A Activity
Open in viewerOpens in your device viewer
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SHARE PURCHASE AGREEMENT
made as of June 29, 2023
Between
EYEFI GROUP TECHNOLOGIES INC.
(the "Seller")
and
EYEFI Pty Ltd.
(the "Company")
And
CERTAIN SHAREHOLDERS OF THE SELLER
(the "Buyers")
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
TABLE OF CONTENTS
- RECITALS AND INTERPRETATION 1
- SALE OF THE COMPANY SHARES 4
- PURCHASE PRICE AND TERMS 4
- REPRESENTATIONS AND WARRANTIES 5
- FURTHER AGREEMENTS 7
- INDEMNIFICATION 8
- GENERAL PROVISIONS 9
SCHEDULE A – LIST OF BUYERS, THEIR HOLDING AND % OWNERSHIP OF SELLER’S SHARES AND COMPANY SHARES UPON CLOSING 15
SCHEDULE B – PROMISSORY NOTE 16
SCHEDULE C – SECURITY AGREEMENT 17
SCHEDULE D – REGISTRATION OF SELLER’S SHARES TO THE SELLER 18
SCHEDULE E – ALL CURRENT AND NON-CURRENT LIABILITIES DISCLOSED IN SELLER’S FINANCIAL STATEMENTS UPDATED TO THE CLOSING DATE (ALL ESTIMATED) 19
LEGAL_40468972.7
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of June 29, 2023 (the “Effective Date”), between EYEFI Group Technologies Inc. a British Columbia corporation having a principal address for business at Building 17, 71 Victoria Crescent, Abbotsford, Victoria 3067 Australia, (the “Seller”), and EYEFI Pty Ltd. an Australian company having a principal address at Building 17, 71 Victoria Crescent, Abbotsford, Victoria 3067 Australia, (the “Company”); and certain shareholders of the Seller (collectively the “Buyers”) described in Schedule A to this Agreement. The Seller, the Company and the Buyers are collectively referred to herein as the “Parties” and individually as a “Party.”
WHEREAS,
R.1 The Company is a wholly owned subsidiary of the Seller and has 3,183,765 ordinary shares issued and outstanding (the “Company Shares”) registered to the Seller.
R.2 The Buyers collectively own 18,951,061 shares in the capital of the Seller (the "Buyers Shares").
R.3 One of the Buyers is Simon Langdon, CEO and a director of the Seller.
R.4 The Seller desires to sell to the Buyers, and Buyers desires to purchase from the Seller, the Company Shares.
R.5 In consideration of the transfer of the Company's Shares from the Seller to the Buyer, the Buyers will transfer the Buyers Shares to the Seller.
R.6 On closing of this agreement ("Agreement"), the Seller will cancel the Buyer's Shares and return them to the treasury of the Seller.
R.7 The sale of the Company Shares is not a disposition of the undertaking of the Seller as defined in the British Columbia Business Corporations Act (the "Act").
IN CONSIDERATION of the mutual promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. RECITALS AND INTERPRETATION
1.1 Recitals
The above recitals are true and correct and form part of this Agreement.
1.2 Definitions
(a) "ACN" means Australian Company Number.
(b) "Act" means the British Columbia Business Corporations Act.
(c) "Agreement" has the meaning ascribed to such term in the preamble hereto.
(d) "Applicable Law" means any law, regulation, or other governmental order that applies to or governs the Buyer's purchase of the Company.
(e) "Business Day" means any day other than a Saturday, Sunday or statutory holiday in the Province of British Columbia.
(f) "Buyer" has the meaning ascribed to such term in the preamble hereto.
(g) "Buyer Indemnified Party" has the meaning ascribed to such term in 6.1.
(h) "Buyer's Shares" means the Buyer's common shares of the Seller in the amounts set out opposite each Buyer's name on Schedule A.
(i) "Closing Date" and "Closing" have the meanings ascribed to such terms in 3.2.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(j) “Closing Time” means 3:00 p.m. Pacific Time on the Closing Date or such other time on the Closing Date that the Parties agreed to in writing.
(k) “Company” means EYEFI Pty Ltd (ACN 114 673 684).
(l) “Company’s Assets” means all assets of the Company, defined as “Collateral” in the Security Agreement.
(m) “Company Shares” has the meaning described in the recitals on the first page of this Agreement.
(n) “CSE” means the Canadian Securities Exchange.
(o) “Effective Date” has the meaning ascribed to such term in the preamble hereto.
(p) “Departure Event” has the meaning ascribed to such term in 5.3.
(q) “Disclosing Parties” has the meaning ascribed to such term in 5.1(a).
(r) “DLK Advisory” means DLK Advisory Pty Ltd (ACN 617 480 805).
(s) “Encumbrance” means any charge, mortgage, lien, pledge, claim, restriction, security interest or other encumbrance whether created or arising by agreement, statute or otherwise at law, attaching to property, interests or rights and shall be construed in the widest possible terms and principles known under the law applicable to such property, interests or rights and whether or not they constitute specific or floating charges as those terms are understood under the laws of Australia.
(t) “Indemnified Party” has the meaning ascribed to such term in 6.3.
(u) “Langdon” means Simon Langdon, the current Chief Executive Officer of the Seller.
(v) “Material Adverse Effect” means any change, event, effect or occurrence that is, individually or in aggregate, material and adverse to the business, properties, Company’s Assets, liabilities (including any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), capitalization, condition (financial or otherwise), operations or results of operations of Buyer and its subsidiaries, taken as a whole.
(w) “MD&A” means the ‘Management’s Discussion and Analysis’ section of a company’s financial disclosure documents.
(x) “Melin” means Ben Melin, the current Chief Financial Officer of the Seller.
(y) “Parties” and “Party” have the meanings ascribed to such terms in the preamble hereto.
(z) “Principal Amount” has the meaning ascribed to such term in 3.1(b).
(aa) “Promissory Note” has the meaning ascribed to such term in 3.1(b). The outstanding Principal Amount on the Promissory Note is a first priority and due and payable in the event of a default defined in the Security Agreement and the Promissory Note attached hereto as Schedule C and B to this Agreement, respectively.
(bb) “Regulatory Authorities” means the securities commissions of British Columbia and Ontario and the Canadian Securities Exchange.
(cc) “Related Entity” an entity is a ‘Related Entity’ of another entity if either entity controls the other entity, or the two entities are under common control.
(dd) “Security Agreement” means the Security Agreement in substantially the same form attached hereto as Schedule C.
(ee) “SEDAR” means the electronic filing system known as “SEDAR” in short, or the ‘System for Electronic Document Analysis and Retrieval’ operated by the Canadian Securities Administrators.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(ff) “Seller” has the meaning ascribed to such term in the preamble hereto.
(gg) “Sellers Financial Statements” means the quarterly financial statements to June 30, 2023 and the annual statements to December 31, 2023 and accompanying MD&A of the Seller.
(hh) “Seller Indemnified Party” has the meaning ascribed to such term in 6.2.
(ii) “Seller’s Shares” means the common shares of the Seller.
(jj) “Termination Agreement” has the meaning ascribed to such term in 3.2(e)(v).
Currency
Except as otherwise expressly provided in this Agreement or any ancillary agreement, all dollar amounts referred to in this Agreement or any ancillary agreement are stated in Canadian dollars. A reference to CAD$ means Canadian dollars.
1.3 Additional Rules of Interpretation
(a) Gender and Number. In this Agreement, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice versa.
(b) Headings and Table of Contents. The inclusion in this Agreement of headings of Articles and the provision of a table of contents are for convenience of reference only and are not intended to be full or precise descriptions of the text to which they refer.
(c) Section References. Unless the context requires otherwise, references in this Agreement to Sections or Schedules are to Sections or Schedules of this Agreement.
(d) Words of Inclusion. Wherever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation” and the words following “include”, “includes” or “including” will not be considered to set forth an exhaustive list.
(e) References to this Agreement. The words “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and similar expressions will be construed as referring to this Agreement in its entirety and not to any particular Section or portion of it.
(f) Statute References. Unless otherwise indicated, all references in this Agreement to any statute include the regulations thereunder, in each case as amended, re-enacted, consolidated or replaced from time to time and in the case of any such amendment, re-enactment, consolidation or replacement, reference herein to a particular provision will be read as referring to such amended, re-enacted, consolidated or replaced provision and also include, unless the context otherwise requires, all applicable guidelines, bulletins or policies made in connection therewith and which are legally binding.
(g) Document References. All references herein to any agreement (including this Agreement), document or instrument mean such agreement, document or instrument as amended, supplemented, modified, varied, restated or replaced from time to time in accordance with the terms thereof and, unless otherwise specified therein, includes all schedules and exhibits attached thereto.
(h) Writing. References to “in writing”, “written” and similar expressions include material that is printed, handwritten, typewritten, faxed, emailed, or otherwise capable of being visually reproduced at the point of reception.
(i) Knowledge. Any statement in this Agreement expressed to be made to “the knowledge of” shall be understood to be made on the basis of the applicable Party’s actual knowledge, after diligent
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
inquiry, of the relevant subject matter or on the basis of such knowledge of the relevant subject matter as the Party would have had if it had conducted such diligent inquiry.
2. SALE OF THE COMPANY SHARES
Company Shares Purchased upon and subject to the terms and conditions of this Agreement, Seller shall sell to the Buyer and Buyer shall purchase from the Seller at the Closing Time all of the issued and outstanding Company Shares registered to the Seller.
3. PURCHASE PRICE AND TERMS
3.1 Price and Payment
In consideration for the sale and transfer by Seller to Buyer of the Company Shares in accordance with this Agreement:
(a) the Buyers will deliver and cause to be paid to the Seller one or more DRS registered to the Seller, for the 18,951,061 Seller’s Shares owned by the Buyers as set out on Schedule A;
(b) the Company will pay CAD$2,200,000 (the “Principal Amount”) payable by way of a promissory note of CAD$2,200,000 in the form attached as Schedule B (“Promissory Note”); and
(c) the Seller will deliver to the Buyers the Company Shares registered to each Buyer in the amount set out in Column E of Schedule A.
3.2 Conditions to Closing and Closing
(a) Conditions to Closing. The Closing is conditional on the Seller:
(i) receiving the consent of the CSE to this Agreement;
(ii) the Company executing the Promissory Note and Security Agreement; and
(iii) termination and assignment of certain agreements listed in the closing document of the Buyers and the Company.
(b) Closing. The closing of the sale of the Company Shares pursuant to this Agreement will occur on or before June 30, 2023 (the “Closing” or “Closing Date”).
(c) Documents Delivered into Escrow. The Buyers and Seller shall each deliver their respective closing deliveries to their respective legal counsel to be held in escrow for Closing.
(d) Closing Deliveries of Seller. Unless waived by Buyer in its sole discretion, Seller will deliver to Buyers the following at the Closing:
(i) share certificates of the Company representing all of the issued Company Shares, in the names of the Buyers in the amounts set opposite each Buyer’s name in Column E of Schedule A;
(ii) certified copy of resolutions duly adopted by the Board of Directors of Seller, authorizing the execution and delivery of this Agreement and all other documents being entered into by Seller, related to, or arising from, this Agreement; and
(iii) such other duly executed agreements, deeds, certificates or other instruments of conveyance, transfer and assignment as will be necessary, in the opinion of Buyer, to vest in Buyer good, valid and marketable title to the Company Shares.
(e) Closing Deliveries of Buyers. Unless waived by Seller in its sole discretion, Buyers will deliver to Seller the following at the Closing:
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(i) DRS certificates for the number of Seller’s Shares equal to the aggregate amount of all of the Seller’s Shares held by the Buyer listed on Schedule A, registered and delivered to the Seller, in accordance with the instructions set forth in Schedule E;
(ii) the resignation of Langdon as an officer and director of the Seller;
(iii) the resignation of Melin as an officer of the Seller;
(iv) cancellation notices to the Seller, from each of the Buyers, cancelling all outstanding stock options granted to each of the Buyers as at the Closing Date;
(v) the Termination Agreement between Langdon and the Company, restricting Langdon from being employed by or working as a contractor for any person or entity that is a competitor of the Company or the Seller for one year following termination of his services to the Company (the “Termination Agreement”); and
(vi) such other duly executed agreements, deeds, certificates or other instruments of conveyance, transfer and assignment as will be necessary, in the opinion of Seller, to sell the Company Shares to the Buyers.
(f) Closing deliveries of the Company. Unless waived by Seller in its sole discretion, the Company will deliver to Seller the following at the Closing:
(i) a termination letter from DLK Advisory without penalty or payments in lieu of notice; a duly executed Promissory Note;
(ii) a duly executed Security Agreement; and
(iii) the Termination Agreement between Langdon and the Company.
4. REPRESENTATIONS AND WARRANTIES
4.1 Seller’s Representations and Warranties
(a) The Seller hereby represents and warrants to the Buyer, and acknowledges that Buyer is entering into this Agreement in reliance thereon, as follows:
(i) the Seller is fully authorized to execute, deliver and perform this Agreement and this Agreement constitutes a valid and binding agreement of Seller in accordance with its terms;
(ii) the Seller is a corporation duly organized, validly existing, and in good standing under the laws of the province of British Columbia. The Company has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder; The execution, delivery and performance of this Agreement have been duly authorized and approved by the Board of Directors of Seller, and this Agreement constitutes a valid and binding agreement of Seller in accordance with its terms.
(iii) other than the consent of the CSE, no consent, approval, order or authorization of or from, or registration, notification, declaration or filing with any individual or entity, including without limitation any governmental authority or person, is required in connection with the execution, delivery or performance of this Agreement by Seller or the consummation by Seller of the transactions contemplated herein;
(iv) the sale of the Company Shares is not a disposition of the undertaking of the Company as defined in the Act;
(v) the Seller has no knowledge of any reasonably likely circumstances pursuant to which the announcement or pendency of this Agreement or the transactions contemplated herein or
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
any change, effect, event or occurrence contemplated by the terms of this Agreement would have a Material Adverse Effect;
(vi) the Seller will at all times comply with the Applicable Law, including, but not limited to, Seller’s performance of its obligations hereunder;
(vii) the Seller is not insolvent or subject to bankruptcy proceedings; and
(viii) the Company Shares are not subject to any Encumbrances.
4.2 Buyer’s Representations and Warranties
(a) The Buyer hereby represents and warrants to the Seller, and acknowledges that Seller is entering into this Agreement in reliance thereon, as follows:
(i) the Buyers are not subject to any cease trade or other order of any applicable stock exchange or securities regulatory authority and, to the knowledge of Buyers, no investigation or other proceedings involving the Buyers, which may operate to prevent the transfer of the Seller’s Shares by the Buyers to the Seller are currently in progress or pending before any applicable stock exchange or securities regulatory authority;
(ii) the Buyers have no knowledge of any reasonably likely circumstances pursuant to which the announcement or pendency of this Agreement or the transactions contemplated herein or any change, effect, event or occurrence contemplated by the terms of this Agreement would have a Material Adverse Effect;
(iii) none of the Buyers are insolvent or subject to bankruptcy proceedings;
(iv) the Seller’s Shares held by the Buyers are not subject to any Encumbrances; and
(b) the Buyers will at all times comply with the Applicable Law, including, but not limited to, Buyer’s performance of its obligations hereunder,
4.3 Company’s Representations and Warranties
The Company hereby represents and warrants to the Seller, and acknowledges that Seller is entering into this Agreement in reliance thereon, as follows:
(a) the Company is fully authorized to execute, deliver and perform this Agreement and this Agreement constitutes a valid and binding agreement of the Company in accordance with its terms;
(b) the Company is a corporation duly organized, validly existing, and in good standing under the laws of Australia. The Company has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder. The execution, delivery and performance of this Agreement have been duly authorized and approved by the Board of Directors of the Company, and this Agreement constitutes a valid and binding agreement of the Company in accordance with its terms;
(c) other than the consent of the CSE, no consent, approval, order or authorization of or from, or registration, notification, declaration or filing with any individual or entity, including without limitation any governmental authority or person, is required in connection with the execution, delivery or performance of this Agreement by Company or the consummation by Company of the transactions contemplated herein;
(d) the Company has no knowledge of any reasonably likely circumstances pursuant to which the announcement or pendency of this Agreement or the transactions contemplated herein or any
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
change, effect, event or occurrence contemplated by the terms of this Agreement would have a Material Adverse Effect; and
(e) the Company will at all times comply with the Applicable Law, including, but not limited to, Company’s performance of its obligations hereunder.
5. FURTHER AGREEMENTS
5.1 Agreement Regarding Preparation and Filing of the Seller’s Financial Statements:
(a) As a condition of the deferment of the CAD$2,200,000 portion of the purchase price, the Company, Langdon, Melin and DLK Advisory (together the “Disclosing Parties”) shall provide any information in their possession, and answer, to the extent of their knowledge, any questions posed by the Seller or its advisors, in respect of the period up until Closing which are relevant to:
(i) the preparation of the accounts of the Seller (including MD&A on SEDAR) for the June 2023 quarter; or
(ii) the audit for the period ending on 31 December 2023.
(b) Requests from the Seller must be in a timely and reasonable manner and with sufficient lead-time for the Disclosing Parties to sufficiently respond to any such requests.
(c) The Disclosing Parties will respond within a reasonable timeframe and with best endeavours based on their actual knowledge of the Seller’s accounts.
(d) The Seller shall be entitled to claim a contribution from the Company to any additional legal costs incurred by the Seller as a result of any material breach of this clause by the Company to the extent they are the sole cause of the incurring of those costs.
(e) The Seller agrees to take responsibility for preparation and lodgement of its June 2023 quarterly interim financial statements (and all subsequent financial statement lodgements) and associated MD&A from the Date of Closing.
(f) The above conditions expire on 30 April 2024.
5.2 Current Operations of the Company
(a) In consideration of the deferment of the cash portion of the purchase price of CAD$2,200,000, from the Closing Date until such time as the CAD$2,200,000 is fully paid to the Seller, the Buyers and the Company agree that the Buyer shall not enter into a transaction for the sale of the majority of its shares in the Company or main undertaking or majority of assets of the Company, that artificially reduces the sale price of the Company and/ assets and cause Langdon to be paid an artificially inflated salary (and above market) with the acquirer.
(b) All current and non-current liabilities disclosed in Seller’s Financial Statements to date and to the Closing Date and listed on Schedule E shall be assumed and be the sole responsibility of the Company.
5.3 Departure of Langdon or Melin
In the event of:
(a) Langdon or Melin (or their respective Related Entity) selling or otherwise disposing of their respective shareholding in the capital of the Company; or
(b) Langdon or Melin voluntarily terminating their engagement with the Company, prior to 30 April 2024, (each a “Departure Event”), then from the date of the Departure Event until 30 April 2024, Langdon or Melin (as the case may be) shall be personally liable for their own breach of
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
clauses 5.1(a) - 5.1(c) (if any) in the manner described in clause 5.1(d) on a severed basis. This liability expires 30 April 2024.
5.4 Independent Legal Advice
Each party shall seek their own independent legal advice.
5.5 Expenses
Each Party hereto will bear their own expenses incurred pursuant to this Agreement except as otherwise specifically set forth herein, including, without limiting the generality of the foregoing, legal expenses incurred by the Buyers.
5.6 Expiration
If the Closing is not able to be held on or before June 30, 2023, then by unanimous agreement of all the parties the Closing Date may be extended.
DISCLAIMER
OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, EACH OF THE PARTIES HEREBY DISCLAIM AND EXCLUDE ALL CONDITIONS, WARRANTIES, OR REPRESENTATIONS, WITH RESPECT TO THE COMPANY SHARES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INDEMNIFICATION
6.1 Seller's Indemnity
Seller will indemnify, defend and hold Buyers, (each a “Buyer Indemnified Party”) harmless from and against any claim, including third-party claims, suits, losses, liabilities, injuries or damages (including, without limitation, reasonable outside counsel fees and litigation expenses) arising out of or in connection with any breach by Seller of any representation, warranty or covenant made by Seller under this Agreement.
6.2 Buyer's Indemnity
Buyers will indemnify, defend and hold Seller, its directors, officers, shareholders, employees and agents (each a “Seller Indemnified Party”) harmless from and against any claim, including third-party claims, suits, losses, liabilities, injuries or damages (including, without limitation, reasonable outside counsel fees and litigation expenses) arising out of or in connection with any breach by Seller of any representation, warranty or covenant made by Seller under this Agreement.
6.3 Indemnity Notification
If a claim is made against a Buyer Indemnified Party or a Seller Indemnified Party (each, an “Indemnified Party”), such Indemnified Party will promptly notify the indemnifying party of such claim. Failure to so notify the indemnifying party will not relieve the indemnifying party of any liability which the indemnifying party might have, except to the extent that such failure materially prejudices the indemnifying party’s legal rights. The Indemnified Party will cooperate with the indemnifying party in the defense and/or settlement of the claims; provided however, the indemnifying party will have an opportunity to assume control of the defense of such claim. The Indemnified Party may participate in the defense of the claim at its own cost. Notwithstanding anything contained herein, the Indemnified Party will not enter into any settlement or compromise that provides for any remedy of the claim without the prior written approval of the indemnifying party.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
7. GENERAL PROVISIONS
7.1 Entire Agreement
This Agreement and all documents contemplated by or delivered under or in connection with this Agreement, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior agreements, negotiations, discussions, undertakings, representations, warranties and understandings, whether written or verbal.
7.2 Assignment and Enurement
No Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. This Agreement enures to the benefit of and binds the Parties and their respective successors and permitted assigns.
7.3 Severability
(a) If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect:
(i) the legality, validity or enforceability of the remaining provisions of this Agreement; or
(ii) the legality, validity or enforceability of that provision in any other jurisdiction.
7.4 Time of Essence
For every provision of this Agreement, time is of the essence.
7.5 Notice
(a) Notice in Writing. Unless otherwise specified, each Notice to a party will be given in writing and delivered by email to the party as follows:
(i) If to Seller:
Name: EYEFI Group Technologies Inc.
Address: Level 8, 90 Collins Street, Melbourne, VIC 3000
Attention: Anoosh Manzoori
E-mail: [email protected]
With a copy (which shall not constitute notice hereunder) to:
Name: Joanne McClusky
Address: 800-1281 W. Georgia Street, Vancouver, British Columbia, Canada, V6E 3J7
E-mail: [email protected]
(ii) If to Buyers:
Name: Simon Langdon
Address: C/- DLK, Level 10/99 Queen St, Melbourne VIC 3000
E-mail: [email protected]
(iii) If to the Company:
Name: Simon Langdon
Address: C/- DLK, Level 10/99 Queen St, Melbourne VIC 3000
Email: [email protected]
or to such other address or email address as is specified by a Party by notice to the other Party given in accordance with this section. Any such notice, demand, request or direction shall be deemed to
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
have been given and received if delivered, on the next Business Day after the day of delivery, and if sent by email, on the first Business Day after the day of the email.
(b) Delivery. Any notice transmitted by e-mail will be deemed to have given when sent, provided that such e-mail is kept on file by the sending party and the sending party does not receive an automatically generated message from the recipient’s e-mail server that such e-mail could not be delivered to such recipient. A copy of the e-mail transmission containing the time, date and recipient e-mail address will be rebuttable evidence of receipt by e-mail.
(c) Delivery on Non-Business Day. Any notice delivered, sent, or transmitted not on a business day will be deemed to be given on the next Business Day.
7.6 Waivers
No waiver of any provision of this Agreement is binding unless it is in writing and signed by all the parties to this Agreement entitled to grant the waiver. No failure to exercise, and no delay in exercising, any right or remedy, under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision.
7.7 Submission to Jurisdiction
Each of the parties irrevocably submits to the exclusive jurisdiction of the courts of the state of Victoria, Australia.
7.8 Governing Law
This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by, and are to be construed and interpreted in accordance with, the laws of the state of Victoria and the laws of Australia applicable in the state of Victoria.
7.9 Remedies Cumulative
The rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise affects the exercise of any other right or remedy to which that party may be entitled.
7.10 Amendments
No amendment, supplement, restatement or termination of any provision of this Agreement is binding unless it is in writing and signed by each person that is a party to this Agreement at the time of the amendment, supplement, restatement or termination.
7.11 No Third Party Rights
This Agreement shall be construed to benefit the Parties and their respective successors and permitted assigns only. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
7.12 Counterparts
This Agreement, and any amendment, supplement, restatement or termination of any provision of this Agreement, may be executed and delivered in accordance with 7.5 in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument.
7.13 Delivery by Electronic Transmission
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
To evidence the execution of this Agreement or any one of its counterparts, a party may transmit a copy of its original or e-signature on the execution page hereof to the other party by e-mail, or other method of electronic transmission agreed to by the parties, and such transmissions will constitute effective delivery of an executed copy of this Agreement to the receiving party for all purposes.
[The remainder of this page is intentionally left blank. Signature page follows.]
11
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
30 June 2023
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
EXECUTED by EYEFI Group Technologies Inc.
in accordance with laws of its place of incorporation by:
Signature of Director
DocuSigned by:
Simon Langdon
Signature of Director
ANOOSH MANZOORI
Name of signatory
Simon Langdon
Name of signatory
EXECUTED for and on behalf of EYEFI PTY LTD in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Simon Langdon
Name of Director
Signature of Director/Secretary
Name of Director/Secretary
EXECUTED for and on behalf of CHAJASA PTY LTD. ATF LORBACK FAMILY TRUST 2 (ACN 623 065 681) in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Matthew Lorback
Name of Director
Signature of Director/Secretary
Chloe Lorback
Name of Director/Secretary
12
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
EXECUTED for and on behalf of CHAJASA PTY LTD. ATF THE LORBACK SUPERANNUATION FUND (ACN 623 065 681) in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Matthew Lorback
Name of Director
EXECUTED for and on behalf of ATOM JACK PTY LTD ATF ATOM JACK DISCRETIONARY TRUST (ACN 169 590 185) in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Katie Bull
Name of Director
EXECUTED for and on behalf of DLK INVESTMENTS GROUP PTY LTD ATF DLK INVESTMENTS UNIT TRUST (ACN 634 579 196) in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Adam Mallabone
Name of Director
Signature of Director/Secretary
Chloe Lorback
Name of Director/Secretary
Signature of Director/Secretary
Name of Director/Secretary
Signature of Director/Secretary
David Lilja
Name of Director/Secretary
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
EXECUTED for and on behalf of EYEFI R & D PTY LTD ATF EYEFI UNIT TRUST (ACN 120 399 279) in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Simon Langdon
Name of Director
SIGNED by BRENDAN DUNNE in the presence of:
Signature of Witness
Simon Langdon
Name of Witness
SIGNED by SIMON LANGDON in the presence of:
Signature of Witness
Brendan Dunne
Name of Witness
Signature of Director/Secretary
Name of Director/Secretary
Signature
Signature
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE A – LIST OF BUYERS, THEIR HOLDING AND % OWNERSHIP OF SELLER’S SHARES AND COMPANY SHARES UPON CLOSING
| Column A
Buyer’s name | Column B
Address | Column C
of Seller’s Shares | Column D
% ownership of Seller’s Shares | Column E
of Company Shares registered to the Buyers on Closing |
| --- | --- | --- | --- | --- |
| Chajasa Pty Ltd. ATF
Lorback Family Trust 2 | c/o DLK Advisory
Level 10, 99 Queen Street
Melbourne, Victoria 3000 | 932,594 | 4.92 | 156,675 |
| Chajasa Pty Ltd. ATF
The Lorback
Superannuation Fund | c/o DLK Advisory
Level 10, 99 Queen Street
Melbourne, Victoria 3000 | 100,000 | 0.53 | 16,800 |
| Atom Jack Pty Ltd ATF
Atom Jack
Discretionary Trust | Level 2, 200 Lygon Street
Carlton, Victoria 3053 | 2,424,740 | 12.79 | 407,355 |
| DLK Investments
Group Pty Ltd ATF
DLK Investments Unit Trust | c/o DLK Advisory
Level 10, 99 Queen Street
Melbourne, Victoria 3000 | 373,035 | 1.97 | 62,670 |
| EYEfi R & D Pty Ltd
ATF EYEfi Unit Trust | c/o DLK Advisory
Level 10, 99 Queen Street
Melbourne, Victoria 3000 | 14,921,478 | 78.74 | 2,506,798 |
| Simon Langdon | c/o DLK Advisory
Level 10, 99 Queen Street
Melbourne, Victoria 3000 | 50,000 | 0.26 | 8,400 |
| Brendan Dunne | 3/79 Field Street
Clifton Hill, Victoria | 149,214 | 0.79 | 25,067 |
| Total | | 18,951,061 | 100 | 3,183,765 |
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE B – PROMISSORY NOTE
16
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
Promissory Note
CAD$2,200,000.00
June 30, 2023
(the "Issue Date")
WHEREAS EYEFI Pty Ltd. (the "Company") and EYEFI Group Technologies Inc. (the "Holder") and certain shareholders of the Holder (the "Buyers") have entered into a share purchase agreement dated June 29, 2023 (the "Share Purchase Agreement") pursuant to the which, among other things, the Company agreed to issue and deliver to the Holder this promissory note (the "Note");
AND WHEREAS pursuant to the Share Purchase Agreement the Holder has agreed to sell and transfer all the ordinary shares of the Company registered in the name of the Holder to the Buyers;
AND WHEREAS the Company and the Holder have entered into a Security Agreement dated June 30, 2023, constituting first rank security interest in all of the Company's right, title and interest in and to the Assets (as defined in the Share Purchase Agreement) and all proceeds thereof (the "Security Agreement");
FOR VALUE RECEIVED, the Company, promises to pay to the Holder, at such place as the Holder may designate, the principal amount of two million and two hundred thousand Canadian dollars (CAD $2,200,000.00) (the "Principal"), as provided in clause 2 below. This Note is subject to the following terms and conditions:
-
ISSUANCE OF NOTE. This Note is issued in connection with the Share Purchase Agreement.
-
MATURITY DATE. Unless written consent is provided by the Holder (which shall not be unreasonably withheld), all unpaid Principal and all other amounts then owing under this Note will be immediately due and payable on any of the following occurring:
(a) a sale of the issued and outstanding or ordinary shares of the Company by any shareholder of the Company, except where the sale is between shareholders or associates of shareholders ("Company Shareholder");
(b) the issue and sale from treasury of the Company Shares, unless issued to raise funds and in that case 50% of the funds raised must be used to repay the Principal. In the event that the Company proposes a different percentage then the Holder will act reasonably in considering that alternative percentage; or
(c) a sale of the main undertaking or the majority of the assets of the Company.
-
PAYMENT; PREPAYMENT. All payments made under this Note will be made in Canadian dollars, without offset or deduction of any kind, at such place as the Holder may from time to time designate in writing to the Company. Payments of the Principal shall be due and payable on the date on which any of the events under clause 2 first occur.
-
APPLICATION OF PAYMENTS. Payment by check shall be credited only when collected by Holder, and payment by wire transfer or other means shall be credited only when actually received by Holder. All payments made hereunder shall be applied first to unpaid costs of collection, and then to any unpaid Principal outstanding.
-
SECURITY. Security for the obligations of the Company under this Note and all other obligations of the Company to the Holder shall be pursuant to the Security Agreement, signed by the Company, constituting a first ranking security interest in all of the Company's right, title and interest in and to the Assets and all proceeds thereof.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
- DEFAULT. Any one or more of the following events or occurrences shall constitute a default under this Note (hereinafter “Default”):
(a) the Company fails to make any payment of principal when due, whether by acceleration or otherwise, under this Note;
(b) the Company fails to meet its obligations under any and all applicable laws and regulations;
(c) the receipt by the Holder of a demand letter, notice of seizure or requirement for payment from, or the initiation of any other type of collection or enforcement action against the Company by any secured party, lien claimant, other encumbrancer, judgment creditor or a person, asserting similar rights in any property, the Australian Taxation Office or any other federal or state governmental agency or body;
(d) notice is given to the Holder of any litigation proceedings commenced against the Company claiming amounts in excess of CAD$15,000 that are not defended;
(e) the Company commences any proceeding in bankruptcy or for dissolution, liquidation, winding-up, composition or other relief under state or federal bankruptcy laws, or such proceedings are commenced against the Company or a receiver or trustee is appointed for the Company or a substantial part of its property, and such proceeding or appointment is not dismissed within sixty (60) days after its commencement;
(f) an Event of Default in respect of the Security Agreement occurs (as defined in the that agreement); or
(g) the Company assumes or incurs any debt that is equal to, or senior in priority to this Note; or the Company otherwise pledges any of its assets, tangible or intangible, to any other party other than in the course of ordinary business in the nature of retention of title or to secure the purchase of new plant and equipment; or the Company breaches clause 7 of this Note. For the avoidance of doubt the Holder shall not unreasonably consent to the incurring of debt by the Company that ranks behind the Note.
-
Upon the occurrence of any Default hereunder, Holder may, in its sole and absolute discretion, declare the entire unpaid Principal balance, and all other amounts and/or payments due hereunder, immediately due and payable, without notice and/or demand.
-
REMEDIES. If the Company defaults under this Note, the Holder shall have all of the rights and remedies available by law, in addition to those Remedies defined and specified in the Security Agreement.
-
WAIVERS. The Company hereby waives grace, diligence, presentment, demand, a notice of demand, dishonor, a notice of dishonor, protest, a notice of protest, any and all exemption rights against the indebtedness evidenced by this Note and the right to plead any statute of limitations as a defense to the repayment of all or any portion of this Note, and interest thereon, to the fullest extent allowed by law. No failure to exercise and no delay in exercising, any right, power or remedy hereunder or under any document delivered to Holder shall impair any right, power or remedy which Holder may have. The rights and remedies of the Holder are cumulative and not exclusive of any rights or remedies which Holder would otherwise have.
-
CONVERSION OF THE PRINCIPAL.
(a) In the event of:
(i) the proposed sale of all the issued and outstanding shares of the Company (“Company Shares”) held by all Company Shareholders, and/or
(ii) the sale of all of the Collateral (as defined in the Security Agreement) by the Company,
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
pursuant to an acquisition of the issued and outstanding Company Shares or Collateral to a company or entity:
(A) proposing to list on a public stock exchange (“Exchange”) (the acquiring company being a “Listing Company”); or
(B) already listed on an Exchange (a “Listed Company”),
where in exchange for the sale of Company Shares or Collateral (as the case may be), the Company Shareholders will receive consideration by way of the issue of shares in the Listing Company or Listed Company (as the case may be) then,
(b) the Secured Party has the right to convert all or any part of the Principal then outstanding to treasury shares of the Listing Company or Listed Company (as the case may be) (“Listed Shares”).
(c) The deemed price of the Listed Shares (the “Conversion Price”) issued to the Holder shall be the same price as the price of the Listed Shares issued to the Company Shareholders pursuant to 10(a)(i) or issued to the Company pursuant to 10(b)(ii) herein.
(d) The issue of the Listed Shares by a Listing Company shall take place only when (i) the Listing Company has cleared all matters regarding its prospectus and is authorized to file the prospectus final material with the securities commission to obtain a final receipt for the prospectus and an Exchange has conditionally agreed to the listing of the Listed Shares, or (ii) the Listed Company has completed all requirements of the Exchange and has set a closing date with the Exchange and the Company.
(e) the Secured Party has the right to redeem all or any part of the Principal.
- AMENDMENT. No waiver or modification of any of the terms or provisions of this Note shall be valid or binding unless set forth in a writing signed by the Company and the Holder, and then only to the extent therein specifically set forth.
- SUBMISSION TO JURISDICTION. Each of the Company and the Holder irrevocably submits to the exclusive jurisdiction of the courts of the state of Victoria and the laws of Australia applicable therein.
- GOVERNING LAW. This Note is governed by and is to be construed and interpreted in accordance with, the laws of the state of Victoria and the laws of Australia applicable therein.
- ASSIGNMENT. Neither this Note nor any rights or obligations of the Company hereunder may be assigned except with the express written consent of the Holder. Subject to the foregoing, all the covenants, stipulations, promises, and agreements in this Note contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not. Holder may assign this Note and Holder's rights hereunder without the express written consent of the Company.
- HOLIDAY. Whenever any payment to be made under this Note shall be due on a Saturday, Sunday and/or legal holiday generally recognized by banks doing business in Australia, then the due date for such payment shall be automatically extended to the next succeeding business day, and such extension of time shall in such cases be included in the computation of the interest portion of any payment due hereunder.
- COSTS AND EXPENSES. The Company agree to pay on demand all reasonable costs and expenses (including, without limitation, attorneys' fees and costs of collection) incurred by the Holder of this Note in connection with or related to enforcement of this Note, whether or not suit be brought, including attorneys' fees relating to any post-judgment motions, bankruptcy litigation, appeal, arbitration or mediation.
- SEVERABILITY. If any of the provisions of this Note shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
- COUNTERPARTS. This Note may be executed and delivered in any number of counterparts, each of which when executed and delivered is an original but all of which taken together constitute one and the same instrument.
[The remainder of this page is intentionally left blank. Signature page follows.]
4
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
IN WITNESS WHEREOF, Company has executed this Note on the day and year first above written.
EXECUTED by EYEFI Group Technologies Inc. in accordance with laws of its place of incorporation by:
Signature of Director
Signature of Director
ANOOSH MANZOORI
Name of signatory
Name of signatory
EXECUTED for and on behalf of EYEFI PTY LTD in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Signature of Director/Secretary
SIMON LANGDON
Name of Director
Name of Director/Secretary
5
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE C – SECURITY AGREEMENT
17
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SECURITY AGREEMENT
WHEREAS EYEFI Pty Ltd. (the “Debtor”) and EYEFI Group Technologies Inc. (the “Secured Party”) and certain shareholders of the Secured Party have entered into a share purchase agreement dated June 29, 2023 (the “Share Purchase Agreement”);
AND WHEREAS pursuant to the Share Purchase Agreement, the Debtor agreed to issue and deliver, and did issue and deliver to the Secured Party a promissory note with a principal amount of CAD$2,200,000 (the “Promissory Note”) dated on or about the date of the Share Purchase Agreement;
AND WHEREAS pursuant to the Promissory Note the Debtor agreed to grant, as general and continuing security for the payment and performance of all its obligations to the Secured Party, the security interest granted herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in order to further secure the obligations pursuant to the Promissory Note, and in consideration of the entering into of the Share Purchase Agreement by the Secured Party the Debtor covenants and agrees as follows:
1. SECURITY INTEREST
FOR VALUE RECEIVED, the undersigned Debtor hereby:
(a) grant, create a security interest in, assign, pledge, convey, hypothecate, mortgage and charge (the “Security Interest”) in favour of the Secured Party:
(i) all the goods, inventory, equipment, and intangibles, including intellectual property, contracts and licences, of the Debtor as listed in Schedule “C” hereto and in any additional Schedules from time to time added hereto; and
(ii) all the proceeds thereof, accretions thereto and substitutions therefor.
All the foregoing being hereafter collectively called “Collateral”. Unless otherwise limited herein the terms “goods”, “Chattel Paper”, “Document of Title”, “Instrument”, “Security”, “proceeds”, “accessing”, “Money”, “financing statement” and “financing change statement” whenever used herein shall be interpreted pursuant to their respective meanings when used in The Personal Property Securities Act, 2009 (Cth) (the “PPSA”).
2. INDEBTEDNESS SECURED
The Security Interest granted hereby secures payment and performance of any and all obligations, indebtedness and liability of the Debtor and the Secured Party (including interest thereon) present or future, direct or indirect, absolute or contingent, matured or not, extended or renewed, incurred or arising under or in connection with or pursuant to the Promissory Note or any other credit document, and whether the same is from time to time reduced and thereafter increased or entirely extinguished and thereafter incurred again (hereinafter collectively called the “Indebtedness”).
3. REPRESENTATIONS AND WARRANTIES OF THE DEBTOR
The Debtor represents and warrants, and so long as this Security Agreement remains in effect shall be deemed to continuously represent and warrant, that:
(a) the Collateral is genuine and owned by the Debtor free of all security interests, mortgages, liens, claims, charges, licenses, leases, infringements by third party, encumbrances or other adverse claims or interests (hereinafter collectively called “Encumbrances”), save for the Security Interest and those Encumbrances shown on Schedule “A” or hereafter approved in writing by the Secured Party, prior to their creation or assumption;
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(b) all intellectual property applications and registrations which pertain to intellectual property used by the Debtor in operating its business are valid and in good standing and the Debtor is not infringing upon a third party’s intellectual property rights by its use of such intellectual property;
(c) the Debtor is authorized to enter into this Security Agreement;
(d) the execution, delivery and performance of the obligations under this Security Agreement and the creation of any security interest in or assignment hereunder of the Debtor’s rights in the Collateral to the Secured Party will not result in a breach of any agreement to which the Debtor is a party; and
(e) the locations specified in Schedule “B” as to business operations and records are, to the extent of the Debtor’s knowledge, accurate and complete.
4. COVENANTS OF THE DEBTOR
So long as this Security Agreement remains in effect the Debtor covenants and agrees:
(a) to defend the Collateral against the claims and demands of all other parties claiming the same or an interest herein; to diligently initiate and prosecute legal action against all infringers of the Debtor’s rights in intellectual property; to take all reasonable action to keep the Collateral free from all Encumbrances, except for the Security Interest, licenses which are compulsory under federal or provincial legislation and those shown on Schedule “A” or hereafter approved in writing by the Secured Party, prior to their creation or assumption, and not to sell, exchange, transfer, assign, lease or otherwise dispose of Collateral or any interest therein without the prior written consent of the Secured Party provided always that, until default, the Debtor may, in the ordinary course of such Debtor's business, sell, licence or lease Inventory and, subject to Clause 5 hereof, use Money available to the Debtor;
(b) to notify the Secure Party promptly of:
(i) any change or proposed change in the information contained herein or in the Schedules hereto relating to the Debtor, the Debtor’s business or Collateral;
(ii) the details of any acquisition or disposition or proposed acquisition or disposition of Collateral not in the ordinary course of business;
(iii) the details of any claims or litigation or possible claims or litigation materially affecting the Debtor or Collateral;
(iv) any material loss or damage or probable material loss or damage to Collateral;
(v) any default or possible default by any debtor of the Debtor in payment or other performance of its obligations which has, or may have a material adverse effect with respect to Collateral; and
(vi) any proposed changes in the full time employment and services of Simon Langdon, that would have a material adverse effect to the Collateral.
(c) to keep Collateral in good order, condition and repair and not to use Collateral in violation of the provisions of this Security Agreement or any other agreement relating to Collateral or any policy insuring Collateral or any applicable statute, law, by-law, rule, regulation or ordinance; to keep all agreements, registrations and applications relating to intellectual property used by the Debtor in its business in good standing and to renew all agreements and registrations as may be necessary or desirable to protect that intellectual property, unless otherwise agreed in writing by Secured Party; to apply to register all existing and future copyrights, trade-marks, patents, integrated circuit topographies and industrial designs whenever it is commercially reasonable to do so;
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(d) to pay all taxes, rates, levies, assessments and other charges of every nature which may be lawfully levied, assessed or imposed against or in respect of the Debtor or Collateral as and when the same become due and payable;
(e) to insure Collateral in such amounts and against such risks as would customarily be insured by a prudent owner of similar collateral and to pay all premiums therefor and deliver copies of policies and evidence of renewal to the Secured Party on request; and
(f) to carry on and conduct the business of the Debtor in a proper and efficient manner and so as to protect and preserve Collateral and to keep, in accordance with generally accepted accounting principles, consistently applied, proper books of account for the Debtor's business as well as accurate and complete records concerning Collateral, and mark any and all such records and Collateral at the Secured Party's request so as to indicate the Security Interest;
(i) any Documents of Title, Instruments, Securities and Chattel Paper constituting, representing or relating to Collateral;
(ii) all books of account and all records, ledgers, reports, correspondence, schedules, documents, statements, lists and other writings relating to Collateral for the purpose of inspecting, auditing or copying the same;
(iii) all financial statements prepared by or for the Debtor regarding the Debtor’s business;
(iv) all policies and certificates of insurance relating to Collateral; and
(v) such information concerning Collateral, the Debtor and the Debtor’s business and affairs as the Secured Party may reasonably request.
5. COLLECTION OF DEBTS
After an Event of Default (as defined in clause 8 below) has occurred, the Secured Party may notify all or any debtors of the Debtor of the Security Interest and may also direct such debtor to make all payments on Collateral to the Secured Party. The Debtor acknowledges that any payments on or other proceeds of Collateral received by the Debtor from a debtor, after such notification of this Security Interest to that debtor shall be received and held by such debtor in trust for the Secured Party and shall be turned over to the Secured Party upon request.
6. INCOME FROM AND INTEREST ON COLLATERAL
After an Event of Default has occurred, the Debtor shall not receive any Money constituting income from, or interest on, the Collateral and if the Debtor receives any such Money, the Debtor will pay the same promptly to the Secured Party.
7. DISPOSITION OF MONEY
(Subject to any applicable requirements of the PPSA, all Money collected or received by the Secured Party pursuant to or in exercise of any right it possesses with respect to Collateral of the Debtor shall be applied on account of Indebtedness in such manner as the Secured Party deem best or, at the option of the Secured Party, may be held unappropriated in a collateral account or released to the Debtor, all without prejudice to the liability of the Debtor or the rights of the Secured Party hereunder, and any surplus shall be accounted for as required by law.
8. EVENTS OF DEFAULT
Each and every one of the following shall constitute an event of default (“Event of Default”) unless waived by the Secured Party:
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(a) the Debtor fails to make any payment of principal forming part of the Indebtedness when due, whether by acceleration or otherwise;
(b) notice to the Secured Party of any litigation proceedings commenced against any Debtor claiming amounts in excess of AUD$15,000, which are not defended;
(c) the Debtor commences any proceeding in bankruptcy or for dissolution, liquidation, winding-up, composition or other relief under state or federal bankruptcy laws, or such proceedings are commenced against the Debtor or a receiver or trustee is appointed for the Debtor or a substantial part of its property, and such proceeding or appointment is not dismissed within sixty (60) days after its commencement;
(d) any Encumbrance against the Collateral becomes enforceable against the Collateral;
(e) the sale of any of the Collateral without the prior consent of the Secured Party in breach of this agreement;
(f) any representation or warranty of the Debtor contained herein proves to have been false in any material respect at the time as of which such representation or warranty was made.
9. ACCELERATION
The Secured Party, in its sole discretion, may declare all or any part of Indebtedness which is not by its terms payable on demand to be immediately due and payable, without demand or notice of any kind, upon the occurrence of an Event of Default.
10. REMEDIES
(a) Upon the occurrence of an Event of Default under this Security Agreement or any one of the Promissory Notes, the Secured Party may avail itself of each and every one of the following remedies (the "Remedies"):
(i) the Secured Party may appoint or reappoint by instrument in writing, any person or persons, whether an officer or officers or an employee or employees of the Secured Party or not, to be a receiver or receivers (hereinafter called a "Receiver", which term when used herein shall include a receiver and manager) of the Collateral of the Debtor (including any interest, income or profits therefrom) and may remove any Receiver so appointed and appoint another in his/her stead. Any such Receiver shall, so far as concerns responsibility for his/her acts, be deemed the agent of the Debtor and not the Secured Party, and the Secured Party shall not be in any way responsible for any misconduct, negligence or non-feasance on the part of any such Receiver, his/her servants, agents or employees. Subject to the provisions of the instrument appointing him/her, any such Receiver shall have power to take possession of Collateral, to preserve Collateral or its value, to carry on or concur in carrying on all or any part of the business of the Debtor and to sell, lease, license or otherwise dispose of or concur in selling, leasing, licensing or otherwise disposing of Collateral. To facilitate the foregoing powers, any such Receiver may, to the exclusion of all others, including the Debtor, enter upon, use and occupy all premises owned or occupied by the Debtor wherein Collateral may be situated, maintain Collateral upon such premises, borrow money on a secured or unsecured basis and use Collateral directly in carrying on the Debtor' business or as security for loans or advances to enable the Receiver to carry on the Debtor' business or otherwise, as such Receiver shall, in its discretion, determine. Except as may be otherwise directed by the Secured Party, all Money received from time to time by such Receiver in carrying out his/her appointment shall be received in trust for and paid over to the Secured Party. Every such Receiver may, in the discretion of the Secured Party, be vested with all or any of the rights and powers of the Secured Party.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(ii) the Secured Party may, either directly or through its agents or nominees, exercise any or all of the powers and rights given to a Receiver by virtue of the foregoing sub-clause (a).
(iii) the Secured Party may take possession of, collect, demand, sue on, enforce, recover and receive Collateral and give valid and binding receipts and discharges therefor and in respect thereof and may sell, license, lease or otherwise dispose of Collateral in such manner, at such time or times and place or places, for such consideration and upon such terms and conditions as to the Secured Party may seem reasonable.
(iv) In addition to those rights granted herein and in addition to any other rights the Secured Party may have at law or in equity, the Secured Party shall have, both before and after the occurrence of any Event of Default, all rights and remedies of a secured party under the PPSA. Provided always, that the Secured Party shall not be liable or accountable for any failure to exercise its remedies, take possession of, collect, enforce, realize, sell, lease, license or otherwise dispose of Collateral or to institute any proceedings for such purposes. Furthermore, the Secured Party shall have no obligation to take any steps to preserve rights against prior Party to any Instrument or Chattel Paper whether Collateral or proceeds and whether or not in the Secured Party's possession and shall not be liable or accountable for failure to do so.
(b) The Debtor acknowledges that upon the occurrence of an Event of Default the Secured Party or any Receiver appointed by it may take possession of Collateral wherever it may be located and by any method permitted by law and the Debtor agrees upon request from the Secured Party or any such Receiver to assemble and deliver possession of Collateral at such place or places as directed.
(c) The Debtor agrees to be liable, jointly and severally, for and to pay all costs, charges and expenses reasonably incurred by the Secured Party or any Receiver appointed by it, whether directly or for services rendered (including reasonable solicitors and auditors costs and other legal expenses and Receiver remuneration), in operating the Debtor's accounts, in preparing or enforcing this Security Agreement, taking and maintaining custody of, preserving, repairing, processing, preparing for disposition and disposing of Collateral and in enforcing or collecting Indebtedness and all such costs, charges and expenses, together with any amounts owing as a result of any borrowing by the Secured Party or any Receiver appointed by it, as permitted hereby, shall be a first charge on the proceeds of realization, collection or disposition of Collateral and shall be secured hereby.
(d) The Secured Party will give the Debtor such notice, if any, of the date, time and place of any public sale or of the date after which any private disposition of Collateral is to be made as may be required by the PPSA.
(e) Upon the occurrence of an Event of Default, and receipt of a written demand from the Secured Party, the Debtor shall use its best endeavours to take such further action as may be necessary to evidence and effect an assignment or licensing of intellectual property used by the Debtor in carrying out its business to whomever the Secured Party directs, including to the Secured Party. The Debtor appoints any officer or director or branch manager of the Secured Party upon the occurrence of an Event of Default that is continuing, to be its attorney in accordance with applicable legislation with full power of substitution and to do on such Debtor's behalf anything that is required to assign, license or transfer, and to record any assignment, licence or transfer of the Collateral. This power of attorney, which is coupled with an interest, is irrevocable until the release or discharge of the Security Interest.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
11. MISCELLANEOUS
(a) The Debtor hereby authorizes the Secured Party to file such financing statements, financing change statements and other documents and do such acts, matters and things (including completing and adding schedules hereto identifying Collateral or any permitted Encumbrances affecting Collateral or identifying the locations at which the Debtor’s business is carried on and Collateral and records relating thereto are situated) as the Secured Party may deem reasonably appropriate to perfect on an ongoing basis and continue the Security Interest, to protect and preserve Collateral and to realize upon the Security Interest and the Debtor hereby irrevocably constitutes and appoints the Secured Party the true and lawful attorney of such Debtor, with full power of substitution, with effect upon the occurrence of a default that is continuing, to do any of the foregoing in the name of the Debtor whenever and wherever it may be deemed necessary or expedient.
(b) The Debtor hereby agrees to enter into any such other agreements as necessary to perfect the Secured Party’s Security Interest against the collateral.
(c) Without limiting any other right of the Secured Party, upon the occurrence of an Event of Default that is continuing, the Secured Party may, in its sole discretion, set off against any Indebtedness then due and payable any and all amounts then owed to the Debtor by the Secured Party whether or not due.
(d) Upon the Debtor’s failure to perform any of its duties hereunder five (5) days after receipt of written notice hereof, the Secured Party may, but shall not be obligated to, perform any or all of such duties, and the Debtor shall pay to the Secured Party, forthwith upon written demand therefor, an amount equal to the expense incurred by the Secured Party in so doing plus interest thereon from the date such expense is incurred until it is paid at the rate of interest applicable to the primary obligations under the Promissory Note.
(e) The Secured Party may grant extensions of time and other indulgences, take and give up security, accept compositions, compound, compromise, settle, grant releases and discharges and otherwise deal with the Debtor, Debtor of the Debtor, sureties and others and with Collateral and other security as the Secured Party may see fit without prejudice to the liability of the Debtor or the Secured Party’ right to hold and realize the Security Interest. Furthermore, the Secured Party, upon the occurrence of an Event of Default that is continuing, may demand, collect and sue on Collateral in the Debtor’ or the Secured Party’ names, at the Secured Party’ option, and may endorse the Debtor’s name on any and all cheques, commercial paper, and any other Instruments pertaining to or constituting Collateral.
(f) No delay or omission by the Secured Party in exercising any right or remedy hereunder or with respect to any Indebtedness shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Furthermore, the Secured Party may remedy any Event of Default by the Debtor hereunder or with respect to any Indebtedness in any reasonable manner without waiving the Event of Default remedied and without waiving any other prior or subsequent Event of default by such Debtor. All rights and remedies of the Secured Party granted or recognized herein are cumulative and may be exercised at any time and from time to time independently or in combination.
(g) The Debtor waives protest of any Instrument constituting Collateral at any time held by the Secured Party on which the Debtor is in any way liable and notice of any other action taken by the Secured Party.
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
(h) This Security Agreement shall ensure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. The Debtor shall not assign, transfer or delegate any of its rights or obligations, under this Security Agreement.
(i) The Secured Party may provide any financial and other information it has about the Debtor, the Security Interest and the Collateral to anyone acquiring or who may acquire an interest in the Security Interest or the Collateral from the Secured Party or anyone acting on behalf of the Secured Party.
(j) Save for any schedules which may be added hereto pursuant to the provisions hereof, no modification, variation or amendment of any provision of this Security Agreement shall be made except by a written agreement, executed by the party hereto and no waiver of any provision hereof shall be effective unless in writing.
(k) Whenever either party hereto is required or entitled to notify or direct the other or to make a demand or request upon the other, such notice, direction, demand or request shall be in writing and shall be sufficiently given, if given in accordance with the provisions of this Agreement.
(l) This Security Agreement and the security afforded hereby is in addition to and not in substitution for any other security now or hereafter held by the Secured Party and is intended to be a continuing Security Agreement and shall remain in full force and effect until the full and indefeasible payment in full of the Indebtedness and the termination of all commitments and obligations of the Secured Party under the Promissory Note or any other credit document.
(m) The Security Interest will be discharged upon, but only upon the full and indefeasible payment in full of the Indebtedness and the termination of all commitments and obligations of the Secured Party under the Share Purchase Agreement and Promissory Note. Upon discharge of the Security Interest and at the request and expense of the Debtor, the Secured Party will execute and deliver to the Debtor such releases, discharges, financing statements and other documents or instruments as the Debtor may reasonably require and the Secured Party will redeliver to the Debtor, or as the Debtor may otherwise direct the Secured Party, any Collateral in its possession.
(n) The headings used in this Security Agreement are for convenience only and are not to be considered a part of this Security Agreement and do not in any way limit or amplify the terms and provisions of this Security Agreement.
(o) When the context so requires, the singular number shall be read as if the plural were expressed and the provisions hereof shall be read with all grammatical changes necessary dependent upon the person referred to being a male, female, firm or corporation.
(p) In the case of any conflict between this Security Agreement and the provisions of the Promissory Note, the provisions of the Promissory Note shall prevail.
(q) In the event any provisions of this Security Agreement, as amended from time to time, shall be deemed invalid or void, in whole or in part, by any Court of competent jurisdiction, the remaining terms and provisions of this Security Agreement shall remain in full force and effect.
(r) Nothing herein contained shall in any way obligate the Secured Party to grant, continue, renew, extend time for payment of or accept anything which constitutes or would constitute Indebtedness.
(s) The Security Interest created hereby is intended to attach when this Security Agreement is signed by both Debtor and delivered to the Secured Party.
(t) The Debtor acknowledges and agrees that in the event the Debtor amalgamates with any other company or companies it is the intention of the Party hereto that the term “Debtor” when used
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
herein shall apply to each of the amalgamating companies and to the amalgamated company, such that the Security Interest granted hereby:
(i) shall extend to “Collateral” (as that term is herein defined) owned by each of the amalgamating companies and the amalgamated company at the time of amalgamation and to any “Collateral” thereafter owned or acquired by the amalgamated company, and
(ii) shall secure the “Indebtedness” (as that term is herein defined) of each of the amalgamating companies and the amalgamated company to the Secured Party at the time of amalgamation and any “Indebtedness” of the amalgamated company to the Secured Party thereafter arising. The Security Interest shall attach to “Collateral” owned by each company amalgamating with such Debtor, and by the amalgamated company, at the time of the amalgamation, and shall attach to any “Collateral” thereafter owned or acquired by the amalgamated company when such becomes owned or is acquired.
(u) This Security Agreement and the transactions evidenced hereby shall be governed by and construed in accordance with the laws of the state of Victoria and the laws of Australia applicable therein.
(v) This Security Agreement may be executed or executed electronically in multiple counterparts, each of which shall be deemed to be an original agreement and all of which shall constitute one agreement. All counterparts shall be construed together and shall constitute one and the same agreement. This Security Agreement, to the extent signed, either manually or by electronic signature, and delivered by means of electronic transmission (including, without limitation, DocuSign and Internet transmissions), shall be treated in all manner and respects as an original agreement and should be considered to have the same binding legal effect as if it were the original version thereof delivered in person.
12. COPY OF AGREEMENT
The Debtor hereby acknowledges receipt of a copy of this Security Agreement.
[The remainder of this page is intentionally left blank. Signature page follows.]
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
IN WITNESS WHEREOF the Debtor has executed this Security Agreement this ______ day of June, 2023.
EXECUTED by EYEFI Group Technologies Inc. in accordance with laws of its place of incorporation by:
Signature of Director
Signature of Director
ANOOSH MANZOORI
Name of signatory
Name of signatory
EXECUTED for and on behalf of EYEFI PTY LTD in accordance with Section 127(1) of the Corporations Act 2001 by authority of the Directors:
Signature of Director
Signature of Director/Secretary
Name of Director
Name of Director/Secretary
9
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE “A” – ENCUMBRANCES AFFECTING COLLATERAL
10
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE “B” – LOCATION OF COLLATERAL
11
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE “C” – DESCRIPTION OF PROPERTY COMPRISING THE COLLATERAL
12
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE D – REGISTRATION OF SELLER’S SHARES TO THE SELLER
| Registration Instructions | Delivery Instructions | Share or DRS Certificate |
|---|---|---|
| EYEFI Group Technologies Inc. | ||
| Level 8, 90 Collins Street, Melbourne VIC 3000 | Attention: Anoosh Manzoori | DRS |
18
DocuSign Envelope ID: 5EA12A1C-0D83-4921-B9A7-0124166687FF
SCHEDULE E – ALL CURRENT AND NON-CURRENT LIABILITIES DISCLOSED IN SELLER'S FINANCIAL STATEMENTS UPDATED TO THE CLOSING DATE (ALL ESTIMATED)
| Current Liabilities | |
|---|---|
| 800 - Accounts Payable | 187,598 |
| 903 - Annual Leave Provision | 59,384 |
| 895 - Goods & Services Tax | (635) |
| 913 - Income in Advance | 336,760 |
| 888 - Loan - Eyefi Unit Trust | 1,700 |
| 892 - Loan - S Langdon | 103,411 |
| 893 - Loan- Conxsme Pty Ltd | (988) |
| 905 - Provision for Long Service Leave | 8,190 |
| 894 - Superannuation Payable | 10,746 |
| 896 - Withholding Taxes Payable | 3,493 |
| 880 - Lease Liability 71 Vic Cres - CL | 71,611 |
| 806 - Premium Funding | 8,177 |
| 880-1 - Lease 71 Vic Cres - Unexpired Interest Current | (7,677) |
| 898 - Loan - B Dunne | 48,000 |
| 878 - Financial Liabilities - Atom Jack Loan | 230,971 |
| 884a - BAS Clearing | (2,539) |
| Non-current Liabilities | |
| 945 - Provision for Long Service Leave - NCL | 7,849 |
| 931 - Lease Liability 71 Vic Cres - NCL | 82,021 |
| 931-1 - Lease 71 Vic Cres - Unexpired Interest Non Current | (2,211) |
EGTI will be responsible for any costs associated with transfer of the IP.
The EGTI / EYEfi inter-group loan will also be forgiven (effective on closing date) as part of this transaction.