Deed of Company Arrangement

Transcription

1 Deed of Company Arrangement BETWEEN AED OIL LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN AND ANDREW HEWITT AND MATTHEW DONNELLY AND ARF AMBER PTE LTD MILLS OAKLEY LAWYERS Level Collins Street MELBOURNE VIC 3000 Telephone: Facsimile: DX 558 MELBOURNE _069.doc

2 Deed of Company Arrangement TABLE OF CONTENTS 1 Definitions 4 2 Interpretation General Headings Business Days Multiple Parties Incorporation of definitions 10 3 Deed Administrators Consent to Appointment Appointment Role of Deed Administrators Agents of the Company Limitation of the Deed Administrators Liability Powers of Deed Administrators 11 4 Scope of Arrangement and Moratorium Arrangement binds all creditors Deed replaces First DOCA Restrictions on Creditors Owners and Lessors rights not otherwise affected Other persons bound by Arrangement 14 5 Costs and Expenses Fund Costs and Expenses Fund Contribution of Costs and Expenses Fund Use of Costs and Expenses Fund 14 6 R&D Fund R&D Fund R&D Fund to be held in bank account Use of R&D Fund 15 7 Unsecured Cameron Claim Fund Unsecured Cameron Claim Fund Unsecured Cameron Claim Fund to be held in bank account Use of Unsecured Cameron Claim Fund 16 8 Secured Cameron Claim Fund Secured Cameron Claim Fund Secured Cameron Claim Fund to be held in bank account Use of Secured Cameron Claim Fund 16 9 General rules for the application of the Deed Funds Admitted Claims of a class to rank equally Non-Participating Creditors Deed Administrators' Costs Determination and payment of Claims Determination of Priority Assets Records Retention of and access to records _069.doc Page 1

3 Deed of Company Arrangement 12 Directors Directors may conduct Relevant Business Directors to procure preparation of financial reports in compliance with Financial Reporting Requirements ARF to fund liabilities of the Company following the Commencement Date Directors shall have no power to sell or encumber Assets Representations by ARF ARF appoints Maddocks as agent for service of process Reversion of management control to Deed Administrator Refund of Costs and Expenses Fund upon Termination Date Prescribed Provisions Meetings of Participating Creditors and Creditors Committee Regulations to Apply Committee of Inspection Regulations Deed Administrators Remuneration and Indemnity Deed Administrators Costs Deed Administrator's Costs Nature of Indemnity Continuing indemnity Indemnity not to be affected or prejudiced Deed Administrators' Lien Survival Clause Misconduct Termination of Deed of Company Arrangement Meeting to consider the future of the Company Termination 23 Subject to this clause 15, the Arrangement set out in this Deed shall terminate upon the happening of the earliest of the following events: Liquidation of the Company Release of Deed Administrator GST GST Act Exclusive of GST Recipient must pay Tax Invoice General Governing Law Counterparts 25 SCHEDULE A First DOCA and Deed of Variation 28 SCHEDULE B Proposal for Deed of Company Arrangement 29 SCHEDULE C Contribution Notice _069.doc Page 2

4 Deed of Company Arrangement Parties AED Oil Ltd (Subject to Deed of Company Arrangement) (ACN ) c/- Grant Thornton, The Rialto, Level 30, 525 Collins Street, Melbourne, Victoria (Company) ANDREW HEWITT AND MATTHEW DONNELLY (in their capacity as Joint and Several Deed Administrators of AED Oil Ltd) (Subject to Deed of Company Arrangement) (ACN ) c/- Grant Thornton, The Rialto, Level 30, 525 Collins Street, Melbourne, Victoria (Deed Administrators) ARF AMBER PTE LTD 72 Anson Road, #07-01, Anson House, Singapore (ARF) Recitals (A) On 12 August 2011, Damien Templeton and Damian Hodgkinson were appointed joint and several administrators (the First Administrators) of the Company pursuant to a resolution of the directors of the Company under section 436A of the Act. (B) (C) (D) (E) (F) (G) On 24 August 2011, the first meeting of creditors of the Company was held pursuant to section 436E of the Act and the First Administrators were replaced by Nicholas Martin, Daniel Bryant and Ian Carson of PPB Advisory (Melbourne) (the Second Administrators) by resolution of the creditors. After extensions of the period to convene the second meeting of creditors of the Company (Second Meeting), it was held on 7 September 2012 to consider a report and statement by the Second Administrators pursuant to section 439A(4)(a), (b) and (c) of the Act. There being no developed proposal for a deed of company arrangement then available to the Second Administrators, but ARF having given an indication of its intention to develop and present a proposal for a deed of company arrangement for the Company in the near future, creditors resolved to adjourn the Second Meeting for a period of up to 45 business days. At the reconvened Second Meeting of creditors held on 8 November 2012, the creditors of the Company resolved (among other things) that the Company should enter into a deed of company arrangement proposed by ARF, an outline of which was circulated to creditors in advance of the meeting, and tabled at the meeting (First DOCA). The First DOCA was executed on 29 November 2012 and varied in accordance with a further resolution of creditors passed on 4 March A copy of the DOCA and Deed of Variation is attached to this document as Schedule A. At the meeting of creditors held on 11 December 2013 (Third Meeting), the creditors of the Company resolved (among other things) that the Company should enter into a replacement deed of company arrangement in accordance with the proposal annexed to the Deed Administrators report to creditors dated 2 December 2013 and annexed to this Deed at Schedule B (Replacement DOCA). Page _069.doc

5 Deed of Company Arrangement (H) This instrument has been prepared in compliance with the Deed Administrators obligations under section 444A(3) of the Act to set out the terms of the Replacement DOCA as approved by creditors of the Company at the Third Meeting. Operative Provisions 1 Definitions In the interpretation of this document, the terms and words set out in this clause 1 shall have the following meanings unless otherwise indicated by the context. Act means the Corporations Act 2001 (Cth). Admitted Claim means a Claim that is admitted by the Deed Administrators in accordance with this Deed. For the avoidance of doubt, any Claim by a Creditor who is a Non- Participating Creditor will not be an Admitted Claim. Appointment Date means 12 August Arrangement means the Arrangement constituted pursuant to Part 5.3A of the Act by the First DOCA and this Deed as varied from time to time. Arrangement Period means the means the period commencing on the Commencement Date and ending on the Termination Date. Assets means all rights, property, interests and other assets of the Company as at the Commencement Date, including: (a) (b) (c) (d) (e) (f) The Company s 40% interest in the Joint Venture; Information technology infrastructure; The issued shares of the Subsidiaries held by the Company (beneficially or otherwise); Cash-at-bank; GST Refunds; and The company shell, listed on the Australian Securities Exchange. ASIC means the Australian Securities and Investments Commission. Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne. Cameron Claim means the claim by the Company against Cameron Australasia Pty Ltd (Cameron) for damages relating to the services agreement dated in or about March 2006 pursuant to which Cameron provided the Company with services in respect of subsea trees installed (or to be installed) at the Puffin Field in the Timor Sea. Claim means any debt owing (whether present or future, actual or contingent) by, or a claim subsisting against, the Company in favour of a creditor of the Company, irrespective of whether the debt or claim arose by virtue of contract at law, in equity or otherwise, and being a debt or claim the circumstances giving rise to which occurred on or before the Appointment Date and which would be admissible to proof against the Company in accordance with Division 6 of Part 5.6 of the Act if the Company were to be wound up _069.doc Page 4

6 Deed of Company Arrangement Commencement Date means the date on which this Deed is executed by the last of the parties to this Deed. Company s R&D Claim means the Company's claim for the R&D Rebate as submitted to the Australian Taxation Office. Contribution Notice means a notice from the Deed Administrators to ARF in the form set out in Schedule C to this Deed. Contribution Sum means the amount set out in the Contribution Notice. Contribution Termination Date means the date that the Deed Administrators receive a Contribution Termination Notice. Contribution Termination Notice means the written notice from ARF to the Deed Administrators notifying them that AED has elected to cease making the Costs and Expenses Fund available to the Deed Administrators. Costs and Expenses Fund means the fund established in accordance with clause 5.1 of this Deed. Court means the Supreme Court of Victoria or the Victorian District Registry of the Federal Court of Australia. Creditor means any person who has a Claim against the Company. Deed means this Deed of Company Arrangement as varied from time to time (unless the context otherwise requires) including any schedule or annexure to it. Deed Administrators Costs means the Deed Administrators remuneration and costs under clause 15.1 of this Deed and for the avoidance of doubt, includes the Outstanding Deed Administrators Costs. Deed Funds means the Costs and Expenses Fund, the R&D Fund, the Unsecured Cameron Claim Fund and the Secured Cameron Claim Fund. Deed of Variation means the Deed of Variation between the Company, the Deed Administrators and ARF executed in accordance with the resolution of creditors of AED passed on 4 March Directors means the directors of the Company as at the Commencement Date. Eligible Employees means those employees of the Company who would be eligible to receive in the winding up of the Company payment in respect of outstanding entitlements from any government scheme. Excluded Claims means any Claims of the Excluded Creditors. Excluded Creditors means ARF and Sinopec. Execution Date means the date within the period prescribed by section 444B(2) of the Act on which this Deed is executed by all of the parties _069.doc Page 5

7 Deed of Company Arrangement Financial Reporting Costs means the costs and expenses incurred by the Deed Administrators and/or the Company in complying with the Financial Reporting Requirements. Financial Reporting Requirements means the financial reporting, disclosure and other matters that the Company or any Subsidiaries are required to conduct or make under the Act or the Australian Stock Exchange listing rules. First DOCA means the deed of company arrangement dated 29 November 2012 as varied by the Deed of Variation. GST means: (a) (b) The goods and services tax imposed on the supply of goods and services pursuant to A New Tax System (Goods and Services Tax) Act 1999 (As amended); and Any other goods and services tax, consumption tax, value added tax or other similar tax. GST Refund means the refunds that may be available to the Company in respect of GST. Indemnifying Creditors means such parties who have provided funding for the costs and expenses of the administration of the Company, as identified to the Deed Administrators by the Second Administrators. Initial Employee Amount means an amount sufficient to pay Eligible Employees the amount they would have received from any government scheme in the winding up of the Company. Initial Fund means the fund provided by ARF under clause 6.1 of the First DOCA. Joint Venture means each unincorporated joint venture between the Company and Sinopec governed by joint operating agreements between the Company and Sinopec dated 18 June 2008 in respect of: (a) (b) (c) Petroleum Exploration Permit No AC/P22; Petroleum Retention Lease No AC/RL 1; and Petroleum Production Licence No AC/L6. Lessor means any person other than the Company who is the legal or beneficial owner of property that is used or occupied by or in the possession of the Company at the Commencement Date that is leased or hired by the Company, and for the avoidance of doubt, includes any landlord. LJC means La Jolle Cove Investors Inc. Maddocks Lawyers means Maddocks Lawyers (Melbourne), attention David Newman. Non-Participating Creditors means the Excluded Creditors and LJC. Outstanding Cash Calls means the amount owing by the Company under the Joint Venture in respect of Cash Calls _069.doc Page 6

8 Deed of Company Arrangement Outstanding Deed Administrators Costs means the Deed Administrators Costs incurred prior to the execution of this Deed. Owner means any person other than the Company who is the legal or beneficial owner of property used or occupied by or on behalf of or in the possession of the Company at the Commencement Date, and for the avoidance of doubt includes any landlords. Participating Creditors means all Creditors other than the Non-Participating Creditors (except to the extent that they are Indemnifying Creditors). PPSA means the Personal Property Securities Act 2009 (Cth). PPSR means the Personal Property Securities Register established pursuant to the PPSA. Priority Claim means a Claim for any amount for which a Participating Creditors would have a right or entitlement to priority for payment under section 556(1) or section 560 of the Act, or any other Claim that would have priority under the Act to an unsecured Claim against the Company, if the Company was in liquidation at the Appointment Date. Regulations means the Corporations Regulations Relevant Business means each of the following tasks or business: (a) (b) (c) (d) (e) (f) (g) take such steps as may be required to negotiate with Sinopec and agree upon the sale, forfeiture or disposition by any other means of the Company s interest in the Joint Venture; cause the Company to comply with the Financial Reporting Requirements; progress the Company s engagement with appropriate regulatory bodies and authorities, together with Sinopec, to address the following matters: (i) (ii) (iii) Petroleum Exploration Permit No. AC/P22: seek changes to the exploration well commitments, and agree and declare locations; Petroleum Retention Lease No AC/RL1: progress the renewal of this license; Petroleum Production Licence No AC/L6: progress the amendment of a production restart date, and manage the seal issue on Puffin 8; and Undertake desktop activities related to the Assets including the design of a plan of development; collect the R&D Rebate; take such steps as the Deed Administrators may consider necessary to prosecute the Cameron Claim; and such other or further tasks or business that the Deed Administrators may authorise in writing. Relevant Business Costs means the liabilities, costs and expenses incurred by the Deed Administrators and/or the Company in carrying on the Relevant Business. R&D Fund means the fund established in accordance with clause 6 of this Deed. R&D Rebate means the rebate approved for payment to the Company by the Australian Tax Office with respect to the Company s R&D Claim _069.doc Page 7

9 Deed of Company Arrangement Records means all financial records, financial reports, books of account, registers, supplier lists and documents of a similar nature regardless of form referrable to the Company. Regulations mean the Corporations Regulations 2001 (Cth). Remuneration and Costs means the amounts payable to the Administrators or the Deed Administrators, as the case may be, pursuant to clause 12.1 of this Deed. Section 439C Resolution means the resolution of the Company s creditors, pursuant to section 439C of the Act that the Company enter into this Arrangement. Secured Cameron Claim Fund means the fund established in accordance with clause 8 of this Deed. Secured Creditor means any Creditor with the benefit of a Security Interest at the commencement date over all or any property of the Company securing all or any part of its Claim, including the Creditors who have registered the following Security Interests on the PPSR: (a) registration number ; (b) registration number ; (c) registration number ; (d) registration number ; (e) registration number ; and (f) registration number Secured Proceeds means any proceeds of the Cameron Claim over which any party holds a valid and subsisting Security Interest. Security Interest means any mortgage, charge, lien or pledge, or a security interest within the meaning of section 12 of the PPSA, as security for the payment or repayment of a monetary obligation or the observance of any other obligation. Sinopec means Sinopec Oil and Gas Australia (Puffin) Pty Ltd. Subsidiaries means any subsidiaries of the Company as that term is defined under the Act. Tax means a tax, levy, duty, charge, deduction or withholding, however it is described that is imposed by law or by a government agency, together with any related interest, penalty, fine or other charge. Termination Date means the date that the Arrangement terminates in accordance with clause 16 of this Deed. Unsecured Cameron Claim Fund means the fund established in accordance with clause 7 of this Deed. Unsecured Debt means a debt owed by the Company to a Creditor who does not hold security for payment of the debt or a debt regarded as an unsecured debt by virtue of the operation of section 9 and section 588D of the Act _069.doc Page 8

10 Deed of Company Arrangement Unsecured Proceeds means any proceeds of the Cameron Claim other than the Secured Proceeds and any surplus available from the Secured Proceeds after payment of the Secured Creditors. 2 Interpretation 2.1 General The following rules apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply: (a) a reference to: (i) (ii) (iii) (iv) (v) (vi) (vii) legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under that legislation; a document or agreement or a provision of a document or agreement is to that document, agreement or provision as amended, supplemented, replaced or novated; a party includes that party's successors in title and permitted assigns and, in the case of a natural person, that person's legal personal representatives; a person includes any type of entity or body of persons whether or not it is incorporated or has a separate legal identity and includes any executor administrator, assign, transferee, purchaser or successor in law of the person; anything (including a right, obligation or concept) includes each part of it; dollars or $ is to Australian currency; time is a reference to Melbourne time. (b) (c) (d) (e) (f) (g) A singular word includes the plural and vice versa; A word which suggests one gender includes the other genders; A reference to a recital, clause or schedule is to a recital, clause or schedule of or to this document; If a word is defined, another part of speech or grammatical form of that expression has a corresponding meaning; If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else or is without limitation, the example does not limit the scope of that thing; the Administrators or Deed Administrators, if that party consists of more than one person, is to each of them separately and any 2 or more of them jointly. Page _069.doc

11 Deed of Company Arrangement 2.2 Headings In this document, headings are for convenience of reference only and do not affect interpretation. 2.3 Business Days If the day on or by which a person must do something under this document is not a Business Day: (a) (b) if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and in any other case, the person must do it on or by the previous Business Day. 2.4 Multiple Parties (a) If a party to this document is made up of more than one person, or a term is used in this document to refer to more than one party; (i) (ii) (iii) an obligation of those persons is joint and several; a right of those persons is held by each of them severally; and any other reference to that party or that term is a reference to each of those persons separately so that (for example) a representation, warranty or undertaking is given by each of them separately. (b) A party that is a trustee is bound only in that party s capacity as a trustee. 2.5 Incorporation of definitions Unless the contrary intention appears, where a word or expression is defined or given meaning in the Act or the Regulations, the word or expression has the same meaning when used in this Deed. 3 Deed Administrators 3.1 Consent to Appointment The Deed Administrators consent to their appointment as the administrators of this Arrangement. 3.2 Appointment The Deed Administrators are the administrators of this Arrangement. 3.3 Role of Deed Administrators The Deed Administrators will administer this Arrangement and have all the functions, powers and duties conferred on them by this Arrangement and the Act _069.doc Page 10

12 Deed of Company Arrangement 3.4 Agents of the Company In exercising the powers conferred by this Arrangement and carrying out the duties arising under this Arrangement, the Deed Administrators are taken to act solely as agent for and on behalf of the Company. 3.5 Limitation of the Deed Administrators Liability Subject to the Act, in the performance or exercise of the Deed Administrators powers, functions and duties under this Arrangement, the Deed Administrators shall not be personally liable for: (a) (b) any debt, liability or other obligation which the Deed Administrators may incur on behalf of the Company pursuant to this Arrangement; or any loss or damage caused by any act, default or omission by the Deed Administrators or on behalf of the Deed Administrators in the performance or exercise of the Deed Administrators powers, functions and duties under this Arrangement, except if the Deed Administrators, or any partner, employee or authorised agent or delegate of the Deed Administrators has acted dishonestly, in breach of duty, in breach of trust or has been negligent. 3.6 Powers of Deed Administrators For the purpose only of administering this Arrangement, the Deed Administrators have the following powers: (a) to manage the affairs of the Company, with the full authority conferred upon any director, the board of the Company, and any administrator of any company under Part 5.3A of the Act; (b) (c) (d) (e) (f) (g) (h) (i) (j) to enter upon or take possession of the property of the Company; to lease or let or hire the property of the Company; to grant options over property of the Company on such conditions as the Deed Administrator thinks fit; to insure property of the Company; to repair, renew or enlarge property of the Company; to call in, collect or convert into money the property of the Company; to administer the assets available for the payment of claims of creditors in accordance with the provisions of this Deed; to purchase, hire, lease or otherwise acquire any property or interest in property from any person or corporation; to borrow or raise money, whether secured upon any or all of the assets of the Company or unsecured, for any period on such terms as the Deed Administrator thinks fit and whether in substitution for any existing security or otherwise; Page _069.doc

13 Deed of Company Arrangement (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w) (x) (y) (z) (aa) to bring, prosecute and defend in the name and on behalf of the Company or in the name of the Deed Administrators any actions, suits or proceedings; to refer to arbitration any question affecting the Company; to make payments to any secured creditor of the Company and any person who is the owner or lessor of property possessed, used or occupied by the Company; to convene and hold meetings of the members or creditors of the Company for any purpose the Deed Administrators think fit; to make interim or other distributions of the proceeds of the realisation of the assets available for the payment of claims of creditors as provided in this Deed; to appoint agents to do any business or to attend to any matter or affairs of the Company that the Deed Administrators are unable to do, or that it is unreasonable to expect the Deed Administrators to do, in person; to engage or discharge directors, officers or employees on behalf of the Company; to appoint a solicitor, accountant or other professionally qualified person to assist the Deed Administrators; to permit any person authorised by the Deed Administrators to operate any account in the name of the Company; to sell, call in or convert into money any of the property of the Company, to apply the money in accordance with this Deed and otherwise effectively and properly to carry out the Deed Administrators' duties as administrators; to do all acts and execute in the name and on behalf of the Company all deeds, receipts and other documents, using the Company's common or official seal when necessary; subject to the Bankruptcy Act 1966, to prove in the bankruptcy of any contributor or debtor of the Company or under any deed executed under that Act; subject to the Act, to prove in the winding up of any contributory or debtor of the Company or under any scheme of arrangement entered into, or deed of company arrangement executed, under the Act; to draw, accept, make or endorse any bill of exchange or promissory note in the name and on behalf of the Company; to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the Company; to bring or defend an application for the winding up of the Company; to carry on the business of the Company on such terms and conditions and for such purposes and times and in such manner as the Deed Administrators think fit subject only to the limitations imposed by this Deed; Page _069.doc

14 Deed of Company Arrangement (bb) (cc) (dd) (ee) (ff) (gg) (hh) to sell any or all of the property of the Company including the whole of the business or undertaking of the Company at any time the Deed Administrators think fit, either by public auction or by private contract and either for a lump sum or for a sum payable by instalment or for a sum on account and to obtain a mortgage charge or encumbrance for the balance or otherwise; to close down the whole or any part of any business of the Company; to enter into and complete any contract for the sale of shares in the Company; to compromise any debts or claims brought by or against the Company on such terms as the Deed Administrators think fit and to take security for the discharge of any debt forming part of the property of the Company; to pay any class of creditors in full, subject to Subdivision D of Division 6 of Part 5.6 of the Act; to do anything that is incidental to exercising a power set out in this clause; to do anything else that is necessary or convenient for the purpose of administering this Deed. 4 Scope of Arrangement and Moratorium 4.1 Arrangement binds all creditors This Arrangement binds all Creditors of the Company, insofar as it concerns their Claims. 4.2 Deed replaces First DOCA As from the date of this Deed, this Deed replaces the First DOCA in its entirety. 4.3 Restrictions on Creditors Subject to clause 4.1, during the period of the Arrangement, a Creditor in respect of its Claim must not: (a) (b) (c) (d) make an application for an order to wind up the Company or take or concur in the taking of any step to wind up the Company; proceed with such an application to wind up the Company made before this Arrangement became binding on the Creditor; begin, continue or take any step (including any step by way of legal or equitable execution) in any proceedings, action or arbitration against the Company or to which the Company is a party; begin, continue or take any step (including any step by way of legal or equitable execution) in any proceedings, action or arbitration in relation to any of the Company s property; or Page _069.doc

15 Deed of Company Arrangement (e) (f) exercise any right of set-off or cross-action to which the Creditor would not have been entitled had the Company been wound up on the day on which the Administration began; or except, in the case of paragraphs (c), (d) and (e) above, with the leave of the Court and in accordance with such terms (if any) as the Court imposes. 4.4 Owners and Lessors rights not otherwise affected Subject to section 444F of the Act, this Arrangement does not affect a right that an Owner or Lessor has in relation to property of the Owner or Lessor unless this Arrangement so provides in relation to an Owner or Lessor who voted in favour of the Section 439C Resolution. 4.5 Other persons bound by Arrangement The Parties to this Deed agree to be bound by its terms. 5 Costs and Expenses Fund 5.1 Costs and Expenses Fund The Costs and Expenses Fund will be such amount as is required by the Deed Administrators to meet the following: (a) Deed Administrators Costs; (b) (c) Financial Reporting Costs; and the Relevant Business Costs, in full. 5.2 Contribution of Costs and Expenses Fund ARF shall pay the Costs and Expenses Fund to the Deed Administrators as may be requested by the Deed Administrators from time to time and paid within 5 business days after receipt of a Contribution Notice from the Deed Administrators. 5.3 Use of Costs and Expenses Fund The Deed Administrators shall apply the Costs and Expenses Fund in the following order of priority: (a) (b) (c) (d) First, to pay the Deed Administrators Costs; Second, to pay the Financial Reporting Costs; Third, to pay the Relevant Business Costs; and The balance (if any) to refund ARF in accordance with clause 12.8 of this Deed. 5.4 ARF's Right to discontinue the Costs and Expenses Fund (a) ARF may, at any time, serve the Deed Administrators with a Contribution Termination Notice and thereafter ARF shall only be liable to advance to the Deed Administrators such amount of the Contribution Sum as has been incurred by the Page _069.doc

16 Deed of Company Arrangement (b) Company or the Deed Administrators on or prior to the Contribution Termination Date. Should ARF Serve the Deed Administrators with a Contribution Termination Notice under clause 5.4(a), then: (i) (ii) (iii) ARF shall indemnify the Deed Administrators and the Company from, and must meet and put the Company into sufficient funds to discharge all of the Deed Administrators' Costs and Financial Reporting and Relevant Business Costs, or otherwise; the Deed Administrators shall convene a meeting of the Company's creditors to determine the Company's future in accordance with clause 16.1(c); and ARF shall put the Deed Administrators into funds for the purposes of them convening the meeting outlined in clause 5.4(b)(ii) above. 6 R&D Fund 6.1 R&D Fund The R&D Fund will comprise the R&D Rebate. The R&D Fund will be the fund available to meet (in part) the Outstanding Deed Administrators Costs, the Initial Employee Amount and the amounts owed to ARF for the Initial Fund. 6.2 R&D Fund to be held in bank account The Deed Administrators must open and conduct one or more bank accounts in the name of the Company for the purpose of receiving, holding and distributing the R&D Fund. 6.3 Use of R&D Fund The Deed Administrators shall apply the R&D Fund in the following order of priority: (a) (b) (c) First, in payment of any Outstanding Deed Administrators Costs, excluding any amounts due to ARF other than amounts advanced by ARF to the Company in respect of the Company s R&D Claim, capped in an amount being the lesser of: (i) the amount calculated to ensure that sufficient funds are held by the Deed Administrators to pay the Initial Employee Amount in full; and (ii) $400,000; Second, in payment of the Initial Employee Amount; Third, to ARF in part repayment of the Initial Fund. 7 Unsecured Cameron Claim Fund 7.1 Unsecured Cameron Claim Fund The Unsecured Cameron Claim Fund will comprise the Unsecured Proceeds. The Unsecured Cameron Claim Fund will be the fund available to meet the costs and claims set out in clause 7.3 below _069.doc Page 15

17 Deed of Company Arrangement 7.2 Unsecured Cameron Claim Fund to be held in bank account The Deed Administrators must open and conduct one or more bank accounts in the name of the Company for the purpose of receiving, holding and distributing the Unsecured Cameron Claim Fund. 7.3 Use of Unsecured Cameron Claim Fund The Deed Administrators shall apply the Unsecured Cameron Claim Fund in the following order of priority: (a) (b) (c) (d) (e) (f) (g) (h) First, in payment of the Deed Administrators Costs; Second, to ARF in payment in full of the Initial Fund and any payments advanced by it under this Arrangement; Third, an amount equal to 45% of the gross Unsecured Proceeds of the Cameron Claim to be paid to ARF to be applied in reduction of its claim against the Company; Fourth, in payment of the Priority Claims of the Indemnifying Creditors to a limit of $850,000; Fifth, in payment of the Priority Claims of all other Participating Creditors; Sixth, in payment of Claims of the Participating Creditors to a limit of $150,000; and Seventh, in payment of the Claims of ARF; and Eighth, in payment of the Claims of the Participating Creditors. 8 Secured Cameron Claim Fund 8.1 Secured Cameron Claim Fund The Secured Cameron Claim Fund will comprise the Secured Proceeds. The Secured Cameron Claim Fund will be available to meet: (a) (b) (c) the Deed Administrators Costs; the amounts owed to ARF in payment in full of the Initial Fund; amounts payable to the JV Partners. 8.2 Secured Cameron Claim Fund to be held in bank account The Deed Administrators must open and conduct one or more bank accounts in the name of the Company for the purpose of receiving, holding and distributing the Secured Cameron Claim Fund. 8.3 Use of Secured Cameron Claim Fund The Deed Administrators shall apply the Secured Cameron Claim Fund in the following order of priority: (a) (b) First, in payment of any outstanding Deed Administrators Costs (to the extent only that such amounts are not paid from Unsecured Proceeds of the Cameron Claim); Second, to ARF in payment in full of the Initial Fund (to the extent only that such amounts are not paid from Unsecured Proceeds of the Cameron Claim); _069.doc Page 16

18 Deed of Company Arrangement (c) (d) (e) Third, an amount equal to 45% of the gross Secured Proceeds of the Cameron Claim to be paid to ARF; and Fourth, in payment of the Financial Reporting Costs and the Relevant Business Costs; and Fifth, in payment of any outstanding cash calls of the JV Partners and otherwise in accordance with their Participating Interest. 9 General rules for the application of the Deed Funds 9.1 Admitted Claims of a class to rank equally The Admitted Claims of a class of Creditors referred to in clauses 5, 6, 7 and 8 rank equally between themselves and must be paid in full, unless the Deed Fund is insufficient to meet them, in which case they must be paid proportionately. 9.2 Non-Participating Creditors The Non-Participating Creditors are not entitled to participate in, and will not prove to recover any Claim for the purposes of, and in relation to, the Arrangement other than where expressly provided for in clauses 5.3, 6.3, 7.3, and Deed Administrators' Costs The Deed Administrators need not make any distributions to any Participating Creditors pursuant to this clause unless the Deed Administrators are satisfied that the Deed Funds will be sufficient to fully pay all Deed Administrators Costs. 9.4 Determination and payment of Claims Subdivisions A, B, C and E of Division 6 of Part 5.6 of the Act apply to claims made under this deed as if the references to the liquidator were references to the Deed Administrator of this Deed, and in particular, the remainder of the Act, and the Regulations, are taken to apply, as far as practicable, as if: (a) a reference that is relevant to the liquidator were a reference in a form that is applicable to the Deed Administrator; (b) (c) a reference that is relevant to any other matter relating to liquidation were a reference in a form that is applicable to the administration of this Deed; a reference to a relevant date were a reference to the date of the administrator's appointment. 9.5 Determination of Priority (a) (b) For the purpose of determining the Priority Claims payable pursuant to this clause, sections 556, 558, 559, 560 and 561 of the Act are to apply with such modifications as may be necessary as if the Company had been wound up with the Appointment Date being the date on which the winding up was taken to have begun. For the avoidance of doubt, any amount payable by the Company in respect of any superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 or the Superannuation Guarantee (Administration) Act 1992 (Cth) will be Page _069.doc

19 Deed of Company Arrangement accorded the same priority under this Deed as superannuation contributions referred to in section 556(1)(e) of the Act, and will rank in priority for payment of dividends accordingly. (c) Sections 444DA or 444DB of the Act shall apply to this Deed and to Claims of Participating Creditors. 10 Assets (a) (b) The Assets: (i) (ii) remain subject to a Security Interest in favour of a Secured Creditor are not otherwise bound by this Deed; and do not form part of the property available for distribution in satisfaction of Creditors Claims under this Deed. Subject to clause 12, on the Commencement Date, the Deed Administrators will provide the Directors with access to the Assets to enable the Directors to conduct the Relevant Business in accordance with the terms of this Deed. 11 Records 11.1 Retention of and access to records (a) (b) After the Commencement Date, the Company must retain all records relating to both the period prior to the Appointment Date and the period of the administration of the Company for seven years in accordance with section 286(2) of the Act. The Deed Administrators may at any time inspect the books and records of the Company and the Company authorises the Deed Administrators and their staff to enter the premises of the Company upon reasonable notice and during usual business hours for the purpose of conducting such an inspection and for the purpose of doing anything necessary or desirable to give effect to this Deed or any requirement under the Act. 12 Directors 12.1 Directors may conduct Relevant Business From the Commencement Date, subject to the terms of this clause 12, the Directors shall have the authority and such powers as they reasonably require to cause the Company to conduct the Relevant Business with such consultation with the Deed Administrators as they may reasonably require Directors to procure preparation of financial reports in compliance with Financial Reporting Requirements The Directors shall cause the Company to take such steps as are reasonably required, and the Deed Administrators shall provide such cooperation as is reasonably required, to cause the Company to comply with the Financial Reporting Requirements _069.doc Page 18

20 Deed of Company Arrangement 12.3 ARF to fund liabilities of the Company following the Commencement Date (a) (i) ARF shall indemnify the Deed Administrators and the Company and put the Deed Administrators and the Company into funds sufficient (as judged by the Deed Administrators acting reasonably) to meet any debts or liabilities the Deed Administrators or the Company may incur between the Commencement Date and the Termination Date, including without limitation: (ii) the costs and liabilities of the Company authorised by the Directors conducting the Relevant Business in accordance with this clause 12; and the costs and expenses of and associated with the Company's compliance with the Financial Reporting Requirements, in each case before any such debts or liabilities are incurred by the Company. Any funds received by the Deed Administrators pursuant to this clause will form part of the Costs and Expenses Fund Directors shall have no power to sell or encumber Assets Whilst the Company is subject to the Arrangement, the Directors shall: (a) not have the power to issue proceedings in the Company's name without the prior written consent of the Deed Administrators; (b) (c) not have the power to effect changes to the Company's affairs or business without the prior written consent of the Deed Administrators; not have the power or authority to conduct any of the following matters on behalf of the Company without the prior written consent of the Deed Administrator (which shall not be unreasonably withheld): (i) (ii) (iii) (iv) (v) (vi) (vii) 12.5 Representations by ARF sell, transfer or otherwise dispose of, or alienate, any of the Assets; issue or agree to issue shares or any other form of securities in the Company; grant or agree to grant any Security Interests over any of the Assets; cause the Company to incur financial indebtedness, except where that indebtedness is met or discharged by ARF in advance of the liability being incurred by the Company, and is in the ordinary course of the Company's ordinary business; declare any dividends or distributions to holders of securities in the Company; make substantial changes to the nature of the business of the Company; or appoint further or replacement directors to the board of the Company. ARF hereby represents warrants and confirms to the Company and the Deed Administrators that: (a) it is a company limited by shares incorporated under the laws of Singapore; _069.doc Page 19

21 Deed of Company Arrangement (b) (c) (d) it has full legal capacity and power to: (i) (ii) own its property and to carry on its business; and enter into this Deed and to carry out the transactions it contemplates; it has taken all corporate action that is necessary or desirable to authorise its entry into of this Deed and to carry out the transactions it contemplates; and this Deed constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors' rights generally) ARF appoints Maddocks as agent for service of process (a) (b) ARF hereby appoints Maddocks Lawyers as its agent for service of process in respect of all matters concerning this Deed. All process served upon of Maddocks Lawyers shall be good and effective service upon ARF in respect of any proceeding commenced in any state of Australia Reversion of management control to Deed Administrator The Deed Administrators may, at any time during the period of the Arrangement, by serving a written notice upon the Directors, resume management and control of the Company and require that the Directors cease conducting the Relevant Business, if in the Deed Administrators opinion (acting reasonably and in good faith) the Directors have, or are about to, engage in misconduct or other acts or conduct that are likely (when judged objectively and reasonably) to cause prejudice to: (a) the Company's reputation or standing; (b) (c) the interests of the Participating Creditors or members of the Company; or the reputation or interests of the Deed Administrators Refund of Costs and Expenses Fund upon Termination Date The Directors and the Deed Administrators shall procure that any residual amounts that remain un-deducted and unused within the Costs and Expenses Fund as at the Termination Date shall be refunded to ARF. 13 Prescribed Provisions The prescribed provisions set out in Schedule 8A of the Regulations (except for regulations 10) shall apply to this Deed to the extent they are not inconsistent (as determined by the Deed Administrator in good faith) with any provision of this Deed (provisions of this Deed shall prevail in the event of any inconsistency). Nothing in this Deed shall override sections 444DA or 444DB of the Act, which shall apply to this Deed. Any provision of this Deed which is inconsistent with those sections shall be modified to the extent necessary to require with those sections _069.doc Page 20

22 Deed of Company Arrangement 14 Meetings of Participating Creditors and Creditors Committee 14.1 Regulations to Apply Regulations to A of the Regulations apply, with such modifications as are necessary, to meetings of creditors held under this Deed as if the references to the liquidator, the liquidator or provisional liquidator, the chairman or trustee for debenture holders, as the case may be, were references to the Deed Administrators of this Arrangement Committee of Inspection There shall be a committee of inspection, which shall be composed of the following creditors: (a) ARF (represented by Tim Baldwin or another); (b) (c) Richard Little (a former employee of the Company); and RSM Bird Cameron (represented by Simon Aitken or another) Regulations Regulations to A of the Regulations apply, with such modifications as are necessary, to meetings of Creditors or of the committee of inspection held under this Arrangement as if the references to the liquidator, the liquidator or provisional liquidator, the liquidator, provisional liquidator or chairman or a liquidator, provisional liquidator or trustee for debenture holders, as the case may be, were references to the Deed Administrators. 15 Deed Administrators Remuneration and Indemnity 15.1 Deed Administrators Costs The Deed Administrators shall be: (a) remunerated in respect of any work done by the Deed Administrators in their capacity as deed administrators in the course of the Arrangement, including that of the Deed Administrators' partners, employees, agents and sub-contract labour, in respect of or in any way relating to the implementation, administration and enforcement of the Arrangement by such amount as is determined in accordance with section 449E of the Act or by order of a Court; and (b) reimbursed in respect of: (i) (ii) all costs, expenses, outgoings, liabilities and obligations, including all legal costs, expenses and disbursements (on a full indemnity basis), incurred by or arising to the Deed Administrators, in connection with or in relation to the implementation, administration and enforcement of the Arrangement; all legal and other professional costs, expenses and disbursements (on a full indemnity basis) incurred by or arising to the Deed Administrators, in connection with or in relation to any Court application or proceeding Page _069.doc

23 Deed of Company Arrangement (iii) (iv) 15.2 Deed Administrator's Costs instituted by the Deed Administrators or any other party in respect of any matter concerning the administration or the enforcement of the Arrangement or any other document referred to in this Deed, and the deed of company arrangement in respect of the Company; all other costs, liabilities, outgoings, expenses and remuneration of the Deed Administrators in their capacity as deed administrators of the Company, whether for the Deed Administrators personally or on behalf of the Company, incurred or accruing in the course of or in connection with the implementation, administration and enforcement of the Arrangement; and any amount payable by the Deed Administrators for or in respect of GST or any other Tax relating to any matter arising out of this Deed or the Arrangement, and whether or not the Deed Administrators are personally liable for such GST or any other Tax. The Deed Administrators will be entitled to deduct the Deed Administrators Costs as incurred from time to time from the Deed Funds and the Assets, subject to any resolution of creditors, the committee of creditors or Court order made under section 449E of the Act Nature of Indemnity In addition to any rights they have under sections 443D, 443E and 443F of the Act, which shall be applicable to the Deed Administrators in their capacity as "deed administrators" under this Deed as they would normally apply to an administrator under Part 5.3A of the Act, the Deed Administrators and each of their partners, directors, employees, consultants and advisors are entitled to and shall be indemnified and held harmless by the Company out of the Deed Funds and the Assets for: (a) the Deed Administrators Costs; and (b) (c) (d) any liability incurred or debt payable by, or claim against, them (based in contract, tort, statute or otherwise, present or future, certain or contingent, ascertained or sounding only in damages), which may be alleged against them or arise from or in connection with: the appointment of the Deed Administrators; and/or the Arrangement and/or this Deed, including (without limitation) any conduct by the Deed Administrators, or their partners, directors, employees, consultants or advisors under or in connection with this Deed Continuing indemnity The indemnity under clause 15.1 will take effect on and from the Commencement Date and be without limitation as to time and shall endure for the benefit of the Deed Administrators' respective legal personal representatives notwithstanding the removal of the Deed Administrators and any appointment of replacement administrators or the termination of the Arrangement for any reason whatsoever Indemnity not to be affected or prejudiced The indemnity under clause 15.1 will not: _069.doc Page 22

24 Deed of Company Arrangement (a) (b) be affected, limited or prejudiced in any way by any irregularity, defect or invalidity in the appointment of the Deed Administrators and shall extend to all actions, suits, proceedings, accounts, liabilities, claims and demands arising in any way out of any defect in the appointment of the Deed Administrators, the approval and execution of this Deed or otherwise; or affect or prejudice all or any rights that the Deed Administrators may have in respect of the Company's Assets or against any other person, to be indemnified against the costs, charges, expenses and liabilities incurred by the Deed Administrators in, or incidental to, the exercise or performance of any of the powers or authorities conferred on the Deed Administrators by this Deed or otherwise Deed Administrators' Lien The Deed Administrators are entitled to exercise a lien over the Deed Funds and the Assets to secure the Deed Administrators' indemnity conferred by this clause Survival Clause Clause 15 will continue to apply despite the termination of the Arrangement Misconduct No person, including without limitation the Deed Administrators, shall be entitled to the indemnity set out in this clause 15 in respect of any liability arising out of any fraudulent, dishonest or grossly negligent act or omission on their part. 16 Termination of Deed of Company Arrangement 16.1 Meeting to consider the future of the Company At the Deed Administrators discretion or upon: (a) any default under the terms of the Arrangement set out in this Deed; (b) (c) (d) distribution of all amounts payable under the Arrangement set out in this Deed; ARF exercises its right to discontinue making the Costs and Expenses Fund available pursuant to clause 5.4; or the request of any Creditor (or Creditors) holding (either individually or collectively) in excess of 20% of the debts owed by AED, a meeting of creditors will be convened to consider the future of AED Termination Subject to this clause 16, the Arrangement set out in this Deed shall terminate upon the happening of the earliest of the following events: (a) the Court makes an order under section 445D of the Act terminating this Deed, on terms thereby determined or ordered; (b) ARF exercises its right to discontinue making the Costs and Expenses Fund available pursuant to clause 5.4; or Page _069.doc

25 Deed of Company Arrangement (c) Participating Creditors pass a resolution terminating this Deed in accordance with sections 445C and 445CA of the Act at a meeting convened under sections 445F of the Act where there has been a breach of this Deed. The termination or avoidance, in whole or in part, of this Deed and the Arrangement established under it, shall not affect the previous operation of this Deed and shall survive the termination of this Deed Liquidation of the Company This Deed shall terminate and the Company shall be placed into liquidation pursuant to sections 445C and 446B(1)(b) of the Act and Regulation 5.3A.07(1)(b) upon the occurrence of any of the following events: (a) the Deed Administrators determine (acting reasonably) that the Company does not have sufficient funds to conduct the Relevant Business, and ARF has not put the Company into funds sufficient (judged by the Deed Administrators, acting reasonably) to meet the Company's debts, liabilities and obligations that are likely to be incurred from conducting the Relevant Business following reasonable notice from the Deed Administrators; (b) (c) (d) any outstanding Financial Reporting Requirements are not satisfied and the Deed Administrator determines (acting objectively and reasonably) that there is no real prospect of these Financial Reporting Requirements being satisfied; the Deed Administrators determine (acting objectively and reasonably) that there are insufficient funds available under this Deed to meet the Deed Administrators Costs; or the Deed Administrators determine (acting objectively and reasonably) that, for any reason, it is no longer in creditors bests interests to continue to with the Arrangement Release of Deed Administrator On termination of this Deed in accordance with clause 16, every person bound by this Deed hereby releases the Second Administrators, the Deed Administrators, the Second Administrators partners, employees, agents, sub-contract labour and advisors and the Deed Administrators' partners, employees, agents, sub-contract labour and advisors from all and any claims of any nature whatsoever concerning or arising out of the implementation, administration and enforcement of this Deed and/or the administration of the Company. 17 GST 17.1 GST Act In this clause words that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as their definition in that Act Exclusive of GST Except as otherwise provided by this clause, all consideration payable under this Deed in relation to any supply is exclusive of GST _069.doc Page 24

26 Deed of Company Arrangement 17.3 Recipient must pay If GST is payable in respect of any supply made by a supplier under this Deed, subject to clause 17.4 the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this Deed Tax Invoice The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST payable under clause General 18.1 Governing Law This document is governed by the law in force in Victoria, Australia Counterparts This document may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument _069.doc Page 25

27 27