Purpose, Scope and Output of the Engagement
My Dealer Services Pty Ltd (MDS) will provide an introduction service in relation to selling your listed business, (the Company) which will be conducted in accordance with the relevant professional and ethical standards under this Engagement Letter. The extent of our procedures and services will be limited exclusively for this purpose only. It is acknowledged that there may be other non MDS related parties in discussions with the Company thus do not fall under this agreement. MDS will be advertising your business summary on its client only portal. In addition, for those potential buyers (the Client) requesting access to your Information Memorandum, your Information Memorandum will be released to them. MDS will not be involved in negotiating terms and price on your behalf. Please note that we do not conduct due diligence on potential buyers, provide tax advice or legal advice and, accordingly, no assurance will be expressed. Our engagement cannot be relied upon to disclose irregularities including fraud, other illegal acts and errors that may exist. However, we will inform you of any such matters that come to our attention.
No documents or additional information will be prepared by MDS for distribution to potential buying candidates. Any documents including business summary and Information Memorandum can not be used for any purpose other than for which it was specifically prepared. Accordingly, our documents including the Business Profile and Information Memorandum may include a disclaimer to this effect.
Period of Engagement
This engagement will start on 26 January 2022 and continue until the Company’s business has reached initial settlement or initial client transfer (whichever comes first).
MDS may use and disclose the Company’s information provided to various parties for the purpose/s of providing our services to you. *
You are responsible for the reliability, accuracy and completeness of the accounting and financial records, particulars and information provided and disclosure of all material and relevant information. The Company shall be liable and responsible for both the completeness and accuracy of the information supplied to MDS. Any advice given to you is only an opinion based on our knowledge of your particular circumstances.
Involvement of Others
You may need to engage other parties such as but not limited to lawyers, accountants or business brokers which are additional costs for you to engage and pay for separately.
Upon successful completion of the sale, the Company will pay MDS a fee of 1.5% (plus GST) on the sale price of the Company within 5 business days of the transfer of funds to the Company by the acquirer (the transaction completion).
MDS reserves the right to charge interest on any outstanding balances at a rate of 1.5% per month pro rata after 5 business days of the transaction completion.
The monthly listing fee of $150 per month is waived for the first three months of listing from the date of this agreement. Thereafter a service fee of $150 per month will be applied. The fee arrangement is a fixed fee for our listing services only. The fee is non refundable under any circumstances including sale of the business.
The Company shall be liable for and shall indemnify and defend MDS, its directors, officers, employees, and agents from and against any and all losses, claims, demands, actions, suits (including costs and legal fees on an indemnity basis), and damages, including, but not limited to: injury, bodily or otherwise, to or death of any person; and/or loss, damage to or destruction of property, whether real or personal, belonging to the Client, or others; and arising from or in connection with any act or omission or negligence of the Client or any other person (other than the Consultant) or arising out of or in connection with the Business or this appointment of Consultant.
Termination of listing
MDS reserves the right to terminate the listing of the Company on its website thus all services provided at its sole discretion.
Ownership of Documents
All original documents obtained from you arising from the engagement shall remain your property. However, we reserve the right to make a reasonable number of copies of the original documents for our records.
Our engagement will result in the production of a Business Profile (BP) and/or Information Memorandum (IM), electronic documents and/or other files, which will be supplied to you, the client. All documents produced by us in respect of this engagement will remain the property of the firm, subject to any statutory obligations.
The firm has a policy of exploring a legal right of lien over any client documents in our possession in the event of a dispute. The firm has also established dispute resolution processes.
MDS agrees not to use the information obtained from the Company for any other purpose other than listing the provided materials by the Company on the MDS website. MDS may list the company despite the existence of a Conflict of Interest. MDS reserves the right to decline the Company’s listing on the website or give advice or make any recommendation to the Company in the event of an actual or potential Conflict of Interest.
MDS is not under an obligation to disclose that MDS, its associates and/or persons connected to MDS has a Conflict of Interest or that in a particular circumstance a Conflict of Interest or duty may exist, where MDS has managed such Conflict of Interest to ensure, and is certain beyond reasonable doubt, that risks of damage to the Company’s interests as a consequence of the Conflict of Interest will be prevented.
The Company agrees that MDS does not have a duty to disclose any matter which comes to its notice in the course of its business if doing so would constitute a breach of duty owed to other persons, notwithstanding that in the case of actual or potential conflict of interest.
Legal and regulatory requirements
The Company confirms that any provision of information and its entering into and performance under this Engagement Letter will not involve a breach by it of any contractual, legal or regulatory obligation and undertakes that it possesses all necessary powers and has obtained all necessary authorisations, consents and approvals to validly and lawfully list itself for sale utilizing MDS service offering, these Terms and the Indemnity set out in Schedule 2.
The Company undertakes to obtain appropriate advice (including legal advice) in respect of all laws and regulations which may be applicable to it in Australia or any other jurisdiction in connection with the Engagement and to communicate such advice to MDS if it is or may be relevant to the provision by MDS of its services to the Company.
If any provision of the Engagement Letter contravenes applicable law or regulation or is declared void or unenforceable by a court or administrative body of competent jurisdiction, the validity of the remaining provisions of the Engagement Letter shall not be affected thereby.
MDS may process, store and retain by computer or otherwise any information (including personal data) obtained about the Company as a consequence of this and any other agreement the Company may enter into with MDS. All collated information, including databases on which such information is stored, held by MDS is and shall remain the property of MDS.
For the purposes of the Engagement Letter, “affiliate” means any group undertaking or any associated company (as defined in section 50 of the Corporations Act 2001) of any such group undertaking.
The Company authorises MDS to make such enquiries and obtain such references as it may consider necessary to fulfil its statutory obligations under the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The Company authorises MDS to make such further enquiries and obtain such further references as it may from time to time consider necessary for continuing compliance with its statutory obligations under such legislation.
The Engagement Letter shall be governed by, and construed in accordance with, New South Wales law and the parties submit to the exclusive jurisdiction of the New South Wales Courts.
Limitations On Liability and Indemnity
1. No claim shall be made against MDS or any partner, director, officer, employee of or consultant or adviser to MDS from time to time (each of which is referred to in this Schedule as an “Indemnified Person”) by the Company or any of its subsidiaries (each of which is referred to in this Schedule as the “Company”) to recover any loss, damage, liability, cost, charge or expense which the Company, the directors of the Company, any investor in, guarantor of, any lender of debt financer to the Company, or any subscriber/purchaser of any of the securities or any subsequent purchaser or transferee thereof, may suffer or incur by reason of, arising directly or indirectly out of or in connection with the carrying out by or on behalf of MDS of its obligations under this Engagement Letter or the provision by or on behalf of MDS of services to the Company whether under this Engagement Letter or otherwise unless such loss, damage, liability, cost, charge or expense arises from the fraud, negligence or wilful default of MDS or a breach by MDS of its duties or obligations.
2. In consideration of MDS agreeing to carry out its obligations to the Company under this Engagement Letter, the Company hereby undertakes to MDS to indemnify each Indemnified Person against all or any claims, actions, liabilities, demands, proceedings or judgements made, brought or established against any Indemnified Person in any jurisdiction: by reason of, arising directly or indirectly out of or in connection with the carrying out by or on behalf of MDS of the Services under or in connection with this Engagement Letter; or arising out of an actual or alleged breach by the Company of any provision of this Engagement Letter; or arising out of any documents issued in connection with the activities contemplated by this Engagement Letter (the “Company Documents”) not containing, or being alleged not to contain, all information required by statute or otherwise to be stated therein, or any statement contained therein being, or being alleged to be, incomplete, untrue, incorrect, inaccurate, unfair, misleading, unreasonable, defamatory or being derived, directly or indirectly, from information obtained improperly or illegally in any respect whatsoever by any person other than an Indemnified Person; or any of the Company Documents failing or being alleged to fail to disclose all material information necessary to enable an informed assessment to be made of the assets and liabilities, financial position, profits and losses, and prospects of the Company or of the rights attaching to any of the securities issued by the Company in connection with the activities contemplated by this Engagement Letter; or arising out of the failure or alleged failure by the Company to comply with applicable provisions of the Corporation Act 2001 as amended (the “Corporations Act”), of any requirements of statute or regulation in any jurisdiction; including (without limitation) any loss, damage, liability, cost, charge or expense (including, without limitation, reasonable professional fees) incurred by an Indemnified Person as a result of investigating, preparing, disputing, defending or settling any actual or potential claim or mitigating any loss on its part.
3. The indemnity in this Schedule in favour of an Indemnified Person shall not apply to the extent that the loss, damage, liability, cost, charge or expense arises from the fraud, negligence or wilful default of or a breach by an Indemnified Person of this Engagement Letter or of its duties or obligations.
4. MDS enters into this indemnity for itself (and as agent and trustee for each of its other Indemnified Persons) on the following terms:
4.1 only MDS may decide whether or not to enforce the right of any Indemnified Person under the trust (and only it may decide the terms of that enforcement) or investigate a matter or give information to another Indemnified Person in connection with the trust;
4.2 notwithstanding the trust, MDS may enter into any agreement, arrangement or transaction with any person (including, without limitation, any other party to this Letter) and may deal with its rights or the rights of any other Indemnified Person under this Letter without regard to the interest of any other Indemnified Person and shall not be liable to account to any other Indemnified Person for any benefit realised by that agreement, arrangement or transaction; and
4.3 MDS shall not be liable to any Indemnified Person for any of its acts or omissions as trustee.
5. For the avoidance of doubt, the indemnity in this Schedule is in addition to, and not in substitution for, any other rights or indemnities to which MDS is entitled at law as agent of the Company.
6. This indemnity shall be without prejudice to the warranties and the indemnities subsequently given by the Company to MDS in any Placing Agreement.
7. All sums payable to any Indemnified Person pursuant to this indemnity shall be paid free and clear of all deductions and withholdings unless the deduction or withholding is required by law, in which case the payer shall pay such amount as shall be required to ensure the net amount received by the relevant Indemnified Person equals the full amount which would have been received by it had such deduction or withholding not been made. If the HRMC or any taxing authority in any jurisdiction brings any sum payable pursuant to this Schedule into charge to tax (or into any computation of income, profits or gains for the purpose of any charge to tax) then (to the extent that the loss, damage, liability, cost, charge or expense in respect of which the sum is payable is not allowable as a deduction for tax purposes against the sum so payable and in the same accounting period as that in which such sum is brought into charge to tax) the amount payable shall be increased by such amount as shall ensure that after deduction of the tax so chargeable there remains a sum equal to the amount that would otherwise have been payable under this Schedule.
8. Nothing in this Schedule shall exclude or restrict the duty or liability of MDS, its associates and/or persons connected to MDS that they may have to the Company under the regulatory system (as such term is defined for the purposes of the FCA Rules).
Confirmation of Terms
Please tick the box on this form to indicate that it is in accordance with your understanding of the arrangements.
Date: 26 January 2022