Exhibit 10.1

 

Deed

Project Lake

Shareholders agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANZ Tower 161 Castlereagh Street Sydney NSW 2000 Australia GPO Box 4227 Sydney NSW 2001 Australia		T +61 2 9225 5000 F +61 2 9322 4000 herbertsmithfreehills.com DX 361 Sydney

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Contents

 

		Table of contents
1		Introduction					3
		1.1		Objectives of agreement			3
		1.2		Business			3
		1.3		Territory			4
		1.4		Compliance with agreement			4
2		Structure of agreement					5
3		Definitions and interpretation					6
		3.1		Definitions and interpretation			6
		3.2		Agreement components			6
		3.3		Inclusive expressions			6
		3.4		Business Day			6
4		Consistency					6
5		Board and senior management					8
		5.1		Board composition			8
		5.2		Appointment and removal of directors			8
		5.3		No alternate directors			10
		5.4		Chair			10
		5.5		Remuneration and expenses			10
		5.6		Committees			10
		5.7		Executives			11
6		Board and Shareholder decision making					12
		6.1		Board quorum			12
		6.2		Notice of Board meetings			13
		6.3		Frequency and conduct of Board meetings			13
		6.4		Voting entitlements			14
		6.5		Circulating resolutions of directors			15
		6.6		Board resolutions - general			16
		6.7		Shareholder approval matters			16
		6.8		Shareholder meetings			18
		6.9		Voting at Shareholder meetings			19
		6.10		Related party dealings			19
		6.11		Delegation			21
		6.12		Subsidiaries			21
		6.13		De minimis Shareholder			21
7		Deadlock					22
		7.1		Deadlock			22
		7.2		Escalation process			23
		7.3		Sale process			24
		7.4		Appointment of investment bank			24
		7.5		Acceptance of Best Offer			26
		7.6		Support to Sale Agent			27
		7.7		Failure of process			28

 

Shareholders agreement		Contents 1

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Contents

 

8		Conduct of business					30
		8.1		Strategic Plan and Budget			30
		8.2		Conduct of business			30
		8.3		Tax			31
		8.4		Periodic reports			32
		8.5		Access to information			33
		8.6		Auditor			33
		8.7		Dividends			34
		8.8		Insurance			34
		8.9		Further funding			35
		8.10		Anti-dilution			37
		8.11		Guarantees			38
		8.12		Related party dealings			38
9		Branding and IP					38
		9.1		Branding			38
		9.2		IP Licence Agreements			39
		9.3		Protection of JV IP			39
10		Exclusivity and commitment					39
		10.1		Parties			39
		10.2		Definitions			40
		10.3		Restrictive covenants			41
		10.4		Permitted Activities			43
		10.5		No restriction on USG or Boral conducting businesses outside the Territory			44
		10.7		Acknowledgment			44
11		Disposal - general					46
		11.1		Standstill Period			46
		11.2		Disposals following Standstill Period			46
		11.3		Security Interests over JV Shares			47
		11.4		Intra-group transfers			47
		11.5		No avoidance			48
		11.6		Adherence Deed and registration of transfers			48
12		Pre-emptive provisions					49
		12.1		General			49
		12.2		Notice of Sale			49
		12.3		Offer to purchase Sale Shares			49
		12.4		Recipient does not offer to purchase			50
		12.5		Recipient offers to purchase			51
		12.6		Offer is accepted			51
		12.7		Offer is rejected			51
		12.8		Last Right			52
		12.9		Tag Right			53
		12.10		Time periods			54
13		Events of Default					54
		13.1		Events of Default			54
		13.2		Change of Control			55
		13.3		Insolvency Events			57
		13.4		Notice			57

 

Shareholders agreement		Contents 2

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Contents

 

14		Effect of Events of Default					58
		14.1		Call Option			58
		14.2		Assessment of Fair Market Value – initial phase			58
		14.3		Binding determination of Fair Market Value			59
		14.4		Failure of expert process			60
		14.5		Exercise of options			61
		14.6		Time periods			62
15		Completion of transfer of JV Shares between Shareholders					62
		15.1		Definitions			62
		15.2		Contract for sale and purchase			62
		15.3		Transfer			63
		15.4		Transferee Shareholder to assume guarantees			64
16		Termination					64
		16.2		Survival			65
17		Operations of Shareholders					67
		17.1		Definitions			67
		17.2		Restrictions on USG			67
18		Confidentiality and publicity					67
		18.1		Definition			67
		18.2		Confidentiality			68
		18.3		Permitted disclosure			68
		18.4		Disclosure to a prospective purchaser			69
		18.5		USG Confidential Information			69
		18.6		Boral Confidential Information			71
		18.7		Third Party IP			72
19		Stapling					72
		19.1		JVC 1 Shares and JVC 2 Shares are Stapled			72
		19.2		Restrictions on dealings in JVC 1 Shares			72
		19.3		Restrictions on dealings in JVC 2 Shares			73
		19.4		Transfers			73
		19.5		Boral Holders – special provisions			73
		19.6		Administrative matters			73
		19.7		Allocation of subscription amounts			74
		19.8		Saving			74
20		Guarantor provisions					74
		20.1		Boral guarantee			74
		20.2		USG guarantee			76
21		Representations and warranties					77
		21.1		Warranties			77
		21.2		Notification of breach			77
22		Rights and obligations of Boral Holders					78
		22.1		Joint and several parties			78
		22.2		Holdings to be aggregated			78
		22.3		Operation of pre-emptive provisions			78
		22.4		Operation of default provisions			79

 

Shareholders agreement		Contents 3

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Contents

 

		22.5		Operation of Deadlock provisions			79
		22.6		Issues of securities			80
		22.7		Operation limited to this agreement			80
23		Notices					80
		23.2		How Notice must be given and when Notice is received			80
		23.3		Notice must not be given by electronic communication			81
24		General					81
		24.1		Costs and expenses			81
		24.2		Entire agreement			81
		24.3		Assignment of rights			82
		24.4		Governing law and jurisdiction			82
		24.5		Service of process			82
		24.6		Waivers			82
		24.7		Variation			82
		24.8		Counterparts			82
		24.9		Further assurances			83
		24.10		Prohibition and enforceability			83
		24.11		Relationship of parties			83
		24.12		Exercise of rights			83
		24.13		Remedies cumulative			83
		24.14		Survival of clauses			83
		Schedules
		Schedule 1
		Definitions and interpretation					84
		Schedule 2
		Director Appointment Forms
		Schedule 3
		Board and Shareholder meeting schedule
		Schedule 4
		Board Fundamental Matters
		Schedule 5
		Major Fundamental Matters
		Schedule 6
		Minor Fundamental Matters

 

Shareholders agreement		Contents 4

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Contents

 

		Schedule 7
		Expert valuation procedures
		Schedule 8
		High Risk Jurisdictions
		Schedule 9
		Committee charters
		Schedule 10
		Third party arrangements
		Schedule 11
		Loan Terms
		Schedule 12
		Adherence Deed
		Schedule 13
		Notice details
		Signing page
		Attachment 1

 

Shareholders agreement		Contents 5

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Shareholders agreement

 

 

Date  u

Between the parties

 

Boral		Boral International Pty Limited   ACN 000 341 239 of Level 39, 50 Bridge Street Sydney, NSW 2000 Australia   (Boral Holder 1)   Boral Building Materials Pty Limited   ACN 090 736 888 of Level 39, 50 Bridge Street Sydney, NSW 2000 Australia   (Boral Holder 2)
USG		USG Netherlands Global Holdings B.V.   Commercial Register No. 58458670, Muiderstraat 9, 1011PZ Amsterdam   (USG)
Companies		[USG Boral Building Products Pte Limited] A company incorporated under the laws of Singapore [to insert registration details of new holdco]   (JVC 1)   [USG Boral Building Products Pty Limited] (formerly Boral Australian Gypsum [Pty] Limited)   ACN 004 231 976 of Level 39, 50 Bridge Street Sydney, NSW 2000 Australia   (JVC 2)
Boral Guarantor		Boral Limited   ACN 008 421 761 of Level 39, 50 Bridge Street Sydney, NSW 2000 Australia   (Boral Guarantor)
USG Guarantor		USG Corporation   of 550 West Adams Street, Chicago Illinois 60661, United States of America   (USG Guarantor)

 

 

 

Shareholders agreement		page 1

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Recitals		1       Boral and USG wish to establish and operate a joint venture through the Companies to conduct the Business.   2       The parties wish to set out in this agreement the terms that will govern the relationship of Boral and USG as shareholders of the Companies, their relationship to the Companies and the terms on which the joint venture will be managed.   3       Boral Guarantor has agreed to guarantee the obligations of Boral under this agreement and USG Guarantor has agreed to guarantee the obligations of USG under this agreement.   4       The Companies have agreed to be bound by, and to comply with, all of the provisions of this agreement which relate to the Companies.   5       At the date of this Agreement, each of Boral Holder 1 and USG hold 50% of the JVC 1 Shares and each of Boral Holder 2 and USG hold 50% of the JVC 2 Shares, such that Boral’s Shareholding Percentage is 50% and USG’s Shareholding Percentage is 50%.   6       Each JVC 1 Share and each JVC 2 Share on issue at the date of this Agreement is Stapled on the terms set out in this agreement.

 

 

This deed witnesses as follows:

 

 

 

Shareholders agreement		page 2

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1	Introduction

 

 

 

1.1	Objectives of agreement

This agreement regulates the relationship of the Shareholders and sets out the arrangements between the Shareholders, and where applicable between the Shareholders and the Companies, for the ownership, governance and operation of the Companies (and the broader JV Group) and the conduct of the business and the affairs of the Companies (and the broader JV Group).

 

1.2

Business

 

(a)

The Business is to:

 

(1)

manufacture, distribute and sell the Products, to mine raw gypsum and to purchase and sell natural and synthetic gypsum (in each case in the Territory); and

 

(2)

undertake such other activities and operations as the Shareholders determine from time to time in accordance with this agreement.

 

(b)

Specifically, but without limiting clause 1.2(a), it is contemplated that the JV Group will (consistently with this agreement):

 

(1)

enter into long term contracts for the supply of raw materials and invest in and own associated assets, including gypsum quarries;

 

(2)

operate existing product manufacturing and distribution facilities and acquire or develop new product manufacturing and distribution facilities;

 

(3)

develop and implement a brand and trademark strategy;

 

(4)

create new products, systems and services to develop markets for the JV Group’s products;

 

(5)

undertake various distribution structures including wholly-owned, franchised or partly-owned structures in partnership with third parties;

 

(6)

develop product and wall and ceiling system specification skills and construction quality assurance skills;

 

(7)

implement the technology licensed to the JV Group by the Boral Group and the USG Group; and

 

(8)

develop the ability to inspect site installation and to accept performance liability for systems constructed in accordance with the JV Group’s specifications.

 

(c)

The Business will not include the JV Group undertaking installation work except to the extent that the Shareholders pass a Unanimous Resolution that this is necessary to develop a particular market, provided that this does not apply to restrict operations in Australia consistent with the business conducted by JVC 2 and its Subsidiaries prior to the date of this agreement.

 

(d)

The Business will be conducted in the best interests of the JV Group in accordance with sound commercial profit making principles and with the aim of generating the maximum achievable sustainable profitability.

 

Shareholders agreement		page 3

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		24    General

 

(e)

Despite the foregoing, the parties agree that the Business will not include the JV Group doing anything (and the Companies must not do anything) contrary to the undertakings in relation to the JV Group in clause 10.3(c).

 

1.3

Territory

 

(a)

The initial Territory for the purposes of this agreement will be the following countries and regions (on the basis that a reference to any country or region listed in this clause 1.3(a) includes any successor jurisdiction or jurisdictions encompassing all or part of the same geographical area): Afghanistan, Australia, Bangladesh, Bahrain, Bhutan, Brunei, Cambodia, China, East Timor, Egypt, Hong Kong, India, Indonesia, Iraq, Israel, Japan, Jordan, Kuwait, Laos, Lebanon, Macau, Malaysia, Maldives, Mongolia, Myanmar, Nepal, New Zealand, Oman, Pakistan, Papua New Guinea, Philippines, the Primorsky Krai region of Russia, Qatar, Saudi Arabia, Singapore, South Korea, Sri Lanka, Taiwan, Thailand, Vietnam, United Arab Emirates and other South West Pacific jurisdictions.

 

(b)

The Shareholders may amend or supplement the list of countries and regions in clause 1.3(a) by agreement at any time and from time to time by giving written notice to the Companies (signed on behalf of both Shareholders) stating the agreed changes to be made. Any such notice will (despite clause 24.7) be taken to vary clause 1.3(a) accordingly with immediate effect.

 

(c)

The parties acknowledge that. as at the date of this agreement, the Boral Group and the USG Group each have existing arrangements with third parties relevant to the Territory, all of which are listed in Schedule 10.

 

(d)

Unless the Shareholders agree otherwise in writing in a particular instance:

 

(1)

the JV Group may not manufacture, distribute or sell Products (or otherwise export Products) directly, or indirectly through another person, outside the Territory or distribute or sell Products in the Territory with the knowledge or having reason to believe that those Products will be sold outside the Territory;

 

(2)

damages alone may not be adequate to compensate a Shareholder for any breach by a JV Group Member of clause 1.3(d)(1);

 

(3)

without limiting the relief that a Shareholder is entitled to seek or any right it may have under this agreement, a Shareholder may seek an injunction if a JV Group Member is in breach of or threatens to breach, or if a Shareholder reasonably believes that a JV Group Member will breach, the provisions of clause 1.3(d)(1); and

 

(4)

no JV Group Member will make any submission or contention in any proceeding at which a Shareholder seeks an injunction in relation to any breach, or any alleged, threatened or apprehended breach, of clause 1.3(d)(1) to the effect that granting an injunction is not appropriate because the payment of damages alone would be adequate to compensate the Shareholder or Shareholders.

 

1.4	Compliance with agreement

 

(a)

Each Shareholder, acknowledging its commitment to the Business, will comply with this agreement and, to the extent within its power, procure that:

 

(1)

each Company complies with this agreement; and

 

Shareholders agreement		page 4

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		24    General

 

(2)

each director the Shareholder appoints to either Board exercises his or her voting rights so as to ensure that each Company complies with this agreement.

 

(b)

Each Company will comply with this agreement and will procure that each JV Group Member complies with this agreement. To the extent (if any) that any obligation on either Company is invalid as a fetter on that Company’s statutory powers, clause 1.4(a) will apply to require the Shareholders to procure (in the manner contemplated by that clause) the relevant Company does the things it is stated in this agreement to be required to do.

 

(c)

In the event of any future change to any Legal Requirement which changes or imposes residency or similar requirements in relation to who can be appointed as a director of either Company (for example any change to the requirement referred to in clause 5.1(b)), the parties will agree in good faith how to satisfy those changed requirements, on the principle that the burden of satisfying them should be borne consistently with the principle adopted in clause 5.1(b).

 

2	Structure of agreement

 

 

This agreement regulates the relationship of the Shareholders and sets out the arrangements between the Shareholders for the ownership, governance and operation of the Companies and the conduct of the businesses and affairs of the Companies. This agreement is divided into the following parts:

 

Part A		Governance		The governance structure of the JV Group including such things as Board composition and decision-making, as well as deadlock provisions.
Part B		Business operations		Key terms for the commercial operation of the Business including planning and reporting, intellectual property issues and exclusivity provisions.
Part C		Shareholder exit and default provisions		Restrictions on Disposal, pre-emptive provisions, and a default regime.
Part D		Miscellaneous		General provisions in relation to the joint venture and the operation of this agreement.
Schedules and Attachment		Various		Contain further details of processes, procedures and arrangements relating to the JV Group which are described throughout the body of the agreement

 

Shareholders agreement		page 5

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		24    General

 

3	Definitions and interpretation

 

 

3.1	Definitions and interpretation

 

(a)

In this agreement, capitalised expressions have the meanings set out in Schedule 1. This agreement must be interpreted in accordance with Schedule 1.

 

(b)

This document is intended to take effect as a deed and a reference to ‘this agreement’ is a reference to ‘this deed’.

 

3.2	Agreement components

This agreement includes any schedule and any attachment which is not itself an agreement.

 

3.3	Inclusive expressions

Specifying anything in this agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.

 

3.4	Business Day

Where the day on or by which any thing is to be done is not a Business Day, that thing must be done by the following Business Day.

 

4	Consistency

 

 

(a)

If there is an inconsistency between this agreement and either or both of the Constitutions, the parties intend that this agreement prevails to the extent of the inconsistency.

 

(b)

On receipt of a request in writing from another party, each party must take all necessary steps (including each Shareholder exercising its voting rights as a Shareholder) to amend any provision or provisions of a Constitution that is inconsistent with this agreement so as to remove the inconsistency and ensure that the terms of this agreement prevail.

 

Shareholders agreement		page 6

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		24    General

 

Part A – Governance

 

 

Shareholders agreement		page 7

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		24    General

 

5	Board and senior management

 

 

5.1	Board composition

 

(a)

Each Shareholder:

 

(1)

has the right to appoint one director to the JVC 1 Board for every 12.5% of the Shareholder’s Shareholding Percentage at any one time; and

 

(2)

has the right to appoint one director to the JVC 2 Board for every 12.5% of the Shareholder’s Shareholding Percentage at any one time.

 

(b)

The Shareholders acknowledge that Singapore law requires at least one director of JVC 1 to be ordinarily resident in Singapore (and subject to this clause 5.1(b) the Shareholders agree that both will appoint such directors, so that the burden of satisfying the relevant legal requirement is shared). Each Major Shareholder must ensure that it appoints an additional director to the JVC 1 Board (in addition to those it is entitled to appoint under clause 5.1(a)) who satisfies the applicable residency requirement (such additional director being the Shareholder’s Singapore Nominee). During any period in which a Shareholder is a Minor Shareholder, such Shareholder may but is not obliged to appoint a Singapore Nominee in addition to the directors it is entitled to appoint under clause 5.1(a).

 

(c)

For the avoidance of doubt a Shareholder will not be entitled to appoint a director to either Board (including any Singapore Nominee) at any time during which that Shareholder’s Shareholding Percentage is less than 12.5%.

 

(d)

A director may (other than to the extent prohibited by applicable law from time to time), have an interest arising from any duty he or she may owe (whether at law or otherwise) to, or any economic interest from or in, the Shareholder who appointed him or her as a director, or any Affiliate or Parent of that Shareholder (as applicable).

 

(e)

To the extent permitted by applicable law a director:

 

(1)

who has an interest in a matter and who declares that interest to the relevant Board may vote in respect of that matter if it comes before the relevant Board and be counted as part of the quorum;

 

(2)

may enter into contracts with, or otherwise have dealings with, any member of the JV Group; and

 

(3)

may hold offices in any member of the JV Group.

 

(f)

To the extent permitted by applicable law, a director may consider, and act in, the interests of the Shareholder that appointed the director (or, without limiting the foregoing, in the interests of the other Company) in performing his or her duties or exercising any power, right or discretion as a director of either of the Companies.

 

5.2	Appointment and removal of directors

 

(a)

A Shareholder entitled to make an appointment pursuant to clause 5.1(a) or obliged to make an appointment under clause 5.1(b) may appoint a director by written notice to the relevant Company in the form set out in Part 1 of Schedule 2 specifying the identity of the person to be

 

Shareholders agreement		page 8

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		24    General

 

appointed as a director. A Shareholder who appoints an individual as a director of JVC 1 must also concurrently appoint the same individual as a director of JVC 2, except in the case of a Singapore Nominee (who will only be appointed as a director of JVC 1).

 

(b)

Subject to the Constitutions and any applicable laws, the appointment takes effect on the later of:

 

(1)

receipt of such notice by the relevant Company; and

 

(2)

receipt by each of JVC 1 and JVC 2 (or in the case of a Singapore Nominee, JVC 1 only) of a consent to act as a director of the relevant Company (in the form set out in Part 2 of Schedule 2, as amended from time to time to the extent necessary to conform with any applicable Legal Requirements in relation to any such consent, and in the case of JVC 1 in the form of Singapore Form 45 or such other applicable form from time to time) signed by the appointee director,

provided always that (except in the case of a Singapore Nominee) an individual’s appointment as a director of one of the Companies will not take effect unless and until he or she is effectively appointed as a director of the other Company.

 

(c)

A Shareholder may at any time remove a director that the Shareholder has appointed to either Board (including a Singapore Nominee, provided that if a Major Shareholder removes its Singapore Nominee that Major Shareholder must immediately appoint another Singapore Nominee in accordance with clause 5.1(b)) by written notice to the relevant Company specifying the identity of the director to be removed. A Shareholder who removes an individual as a director of JVC 1 must also concurrently remove the same individual as a director of JVC 2, except in the case of a Singapore Nominee (who will only be removed as a director of JVC 1). For the avoidance of doubt a notice of removal may be accompanied by notice of appointment of a replacement director in accordance with clause 5.2(a) (and may be given subject to the replacement appointment taking effect).

 

(d)

A director appointed by a Shareholder may only be replaced or removed by that Shareholder, except that if the number of directors on either Board appointed by a Shareholder exceeds the number of directors which that Shareholder is entitled to appoint at any given time under clause 5.1 for more than 2 consecutive Business Days the other Shareholder may on the next Business Day following that period remove the excess director or directors with immediate effect by written notice to the relevant Company, which selects the director or directors to be removed (provided that the other Shareholder’s Singapore Nominee may not be removed in this way).

 

(e)

Any removal of a director or directors pursuant to clause 5.2(d) is without limitation to a Shareholder’s right to appoint, remove or replace any individual as a director in accordance with clause 5.1 and 5.2.

 

(f)

If at any time a Shareholder transfers all of its JV Shares to the other Shareholder or to a third party in accordance with this agreement, then without limiting any other term of this agreement, that Shareholder must procure that its appointed directors resign or are removed immediately.

 

(g)

A Shareholder who is entitled to make an appointment, removal or replacement of a director pursuant to this clause may, to the extent such action requires the approval of a Company’s members under applicable law, at any time convene a general meeting of the Companies (or either of them as the case may be) to approve that appointment, removal or replacement by ordinary resolution and each other Shareholder must vote in favour of that resolution at that meeting.

 

Shareholders agreement		page 9

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		24    General

 

5.3	No alternate directors

Directors may not appoint alternate directors.

 

5.4

Chair

 

(a)

Subject to clause 5.4(b):

 

(1)

USG has the right to appoint the Chair of each Board for the period until 31 December 2015; and

 

(2)

the right to appoint one of its nominee directors as Chair of each Board will thereafter alternate between the Shareholders every 2 years,

(but so that the same person will act as Chair of both Boards).

 

(b)

During any period that a Shareholder’s Shareholding Percentage is more than 50%, that Shareholder will have the sole right to appoint the Chair of both Boards.

 

(c)

The initial Chair will be Jennifer Scanlon or such other USG Director who is notified by USG to Boral prior to entry into this agreement (who will be taken to have been duly appointed in accordance with this clause 5.4).

 

(d)

The Shareholder having the right to appoint the Chair at any given time under this clause 5.4 must appoint, and may replace, the Chair by written notice to the Companies specifying the director to be appointed as Chair (or, as applicable, replace the current Chair). Subject to the Constitutions and any applicable laws, the appointment or, as applicable, replacement of the Chair takes effect immediately on receipt of the relevant notice by the Companies.

 

(e)

The Chair will not have a casting vote at meetings of either Board (or in respect of circulating resolutions of the directors).

 

(f)

If the Chair is absent from a meeting of either Board, or is unwilling act, the directors at the meeting appointed by the same Shareholder who appointed the Chair may nominate any director present to act as Chair of the meeting.

 

5.5	Remuneration and expenses

 

(a)

The Companies must reimburse each director’s reasonable costs associated with travelling to and attending Board meetings.

 

(b)

Clause 8.8(a) will apply in relation to insurance cover for directors.

 

(c)

Directors will not be entitled to any fees from the JV Group for serving as a director.

 

5.6	Committees

 

(a)

The parties agree that the JV Group will establish a Finance Committee and a Technical Committee to provide additional oversight and assistance to management of the JV Group. The initial charters for these committees will be as set out in Schedule 9.

 

Shareholders agreement		page 10

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		24    General

 

(b)

The Finance Committee will comprise up to eight members, with each Shareholder having the right to appoint and remove four members, and so that the members appointed will collectively have expertise in the areas of accounting, treasury, financial analysis and tax. The appointment proportions will be adjusted equitably (on the same principle as applies to appointment of directors under clause 5.1(a)) if the parties’ Shareholding Percentages cease to be 50/50.

 

(c)

The Technical Committee will be comprise up to six members (plus an ex officio chair as contemplated by the charter for the Technical Committee), with each Shareholder having the right to appoint and remove three members and so that the members appointed will collectively have expertise and responsibility in the technology areas of manufacturing, engineering, research, product development, and intellectual property. The appointment proportions will be adjusted equitably (on the same principle as applies to appointment of directors under clause 5.1(a)) if the parties’ Shareholding Percentages cease to be 50/50.

 

(d)

The members appointed to the Finance Committee or the Technical Committee may, but need not be, directors of the Companies. However the members appointed to the Finance Committee must not be employees of the JV Group.

 

(e)

The Boards may by Super Resolution of both Boards disband the Finance Committee or the Technical Committee at any time after the third anniversary of the date of this agreement if it considers that performance of either of those committee’s functions is no longer required by the JV Group.

 

(f)

Each Board may establish (and disband) other committees from time to time as it sees fit.

 

5.7	Executives

 

(a)

The Companies must appoint:

 

(1)

Frederic de Rougemont as the initial chief executive officer of the JV Group;

 

(2)

Paul Monzella as the initial chief financial officer of the JV Group;

in each case on the appointment terms agreed between the Shareholders before the date of this agreement.

 

(b)

The Shareholders agree that the chief executive officer will report to and serve under the direction of both Boards, and be responsible for:

 

(1)

the day to day management of the Business and affairs of the JV Group in accordance with this agreement, the Strategic Plan, the Budget and policies approved by both Boards; and

 

(2)

the selection and appointment of all other officers and employees of the JV Group as necessary for the proper administration of the Business (other than the chief financial officer, the Senior Vice President-Technology, the Vice President -Product Adjacencies and the members of the Finance Committee or the Technical Committee),

subject always (where relevant) to clause 6.6 and clause 6.7 and to limits of authority approved by both Boards from time to time.

 

(c)

The Shareholders agree that the chief financial officer will report to and serve under the direction of the chief executive officer, and be responsible for managing the financial affairs of the JV Group on a day to day basis in accordance with this agreement, the Strategic Plan, the Budget and policies approved by both Boards, subject always (where relevant) to clause 6.6 and clause 6.7 and to limits of authority approved by both Boards from time to time.

 

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(d)

At any time (and from time to time) after expiry of the 18 month period commencing on the date of this agreement either Shareholder may serve written notice on the Companies and the other Shareholder stating that it requires the chief executive officer or the chief financial officer to be dismissed (a Dismissal Notice). A Dismissal Notice must state the desired date for the dismissal to take effect, which must not be less than 3 months after the date of the Dismissal Notice unless both Shareholders agree in writing to an earlier date.

 

(e)

On receipt of a Dismissal Notice, the parties must ensure that the services of the chief executive officer or the chief financial officer (as applicable) are terminated from the date specified in the Dismissal Notice provided that nothing in this clause is intended to require the Companies to act in breach of the employment contract of the relevant executive or applicable Legal Requirements (including as to required contractual notice periods).

 

(f)

Where the Chief Executive Officer or Chief Financial Officer is removed under this clause 5.7, or his or her employment is otherwise terminated, both Shareholders may nominate a replacement candidate or candidates for consideration by the Boards. For the avoidance of doubt any new appointment requires approval by both Boards as a Board Fundamental Matter in accordance with clause 6.6.

 

(g)

The Companies must also appoint:

 

(1)

Joseph Holmes as the initial Senior Vice President-Technology of the JV Group; and

 

(2)

William Hogan as the initial Vice President -Product Adjacencies of the JV Group,

in each case on the appointment terms agreed between the Shareholders before the date of this agreement. Any replacement appointments to either role must be of individuals with the requisite skills and experience for their respective roles nominated by USG and approved by both Boards. At any time after the fourth anniversary of this agreement, the Boards may by Super Resolution of both Boards dispense with the Senior Vice President-Technology and the Vice President -Product Adjacencies roles if the Boards consider they are no longer required by the JV Group.

 

6	Board and Shareholder decision making

 

 

 

6.1	Board quorum

 

(a)

No matter or business may be transacted at a meeting of directors of either Company unless a quorum of directors is present at the time the matter or business is dealt with (including, for the avoidance of doubt, at the time the relevant Board votes on any resolution proposed in respect to that matter or business).

 

(b)

Subject to clause 6.10, the quorum for a meeting of either Board is at least one director appointed by each Major Shareholder (who is not a Singapore Nominee) present in person or by any telephonic or electronic means permitted by the Constitutions.

 

(c)

If a quorum is not present at a Board meeting within 2 hours of the time appointed for that Board meeting, the relevant meeting must be adjourned for a period of at least 24 hours (First Adjourned Board Meeting), with notice to be

 

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		24    General

 

given immediately (and in any event at least 24 hours before the scheduled time) to all directors of the time and place for the First Adjourned Board Meeting.

 

(d)

If a quorum is not present at the First Adjourned Board Meeting, the First Adjourned Board Meeting must be adjourned until the next Business Day following a period of at least 10 days (Second Adjourned Board Meeting). At least 10 days’ notice must be given to all directors of the time and place for the Second Adjourned Board Meeting.

 

(e)

If a quorum is not present at the Second Adjourned Board Meeting, without limiting a party’s rights under any other provision of this agreement, the Board will reconvene at the next scheduled Board meeting or as otherwise agreed.

 

(f)

For the avoidance of doubt, in no circumstances may the Board pass a Super Resolution unless a quorum meeting the requirements in clause 6.1(b) (as modified where applicable by clause 6.10) is present.

 

6.2	Notice of Board meetings

 

(a)

Subject to clause 6.2(b), unless all the directors agree otherwise:

 

(1)

directors must receive at least 21 days’ notice in writing of a meeting of either Board that specifies the date, time and place of meeting, the agenda specifying in reasonable detail the matters to be discussed at the meeting and the resolutions to be considered (attaching all documents to be tabled at that meeting); and

 

(2)

a Board cannot pass a resolution or transact any business unless the subject of that resolution or that business was specifically described in the notice of meeting or unless approved by Super Resolution of the relevant Board.

 

(b)

Where a matter is urgent, a meeting of a Board may be convened on less than 21 days’ notice if:

 

(1)

a majority of directors including at least one director (who is not a Singapore Nominee) appointed by each Major Shareholder and one director (who is not a Singapore Nominee) appointed by each Minor Shareholder (if any) have agreed to the shorter notice; and

 

(2)

the requirements of clause 6.2(a) are otherwise satisfied,

provided that this does not apply to notice of an adjourned meeting under clause 6.1(c) or clause 6.1(d).

 

6.3	Frequency and conduct of Board meetings

 

(a)

Unless all Shareholders who have appointed one or more directors to either Board agree in writing in any given case, JVC 1 Board meetings and JVC 2 Board meetings must be convened so that they take place concurrently at the same time and the same place. Singapore Nominees are permitted to attend JVC 2 Board meetings to the extent they are held concurrently with JVC 1 Board meetings.

 

(b)

The Boards must meet at least six times in each Financial Year in accordance with:

 

(1)

for the first 12 months after the date of this agreement, the meeting schedule in Schedule 3; and

 

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		24    General

 

(2)

for each year thereafter in accordance with a schedule approved by the Boards 3 months prior to the end of the previous year.

 

(c)

Additional Board meetings must be scheduled if:

 

(1)

agreed by a majority of both Boards; or

 

(2)

requested by either Shareholder by notice in writing to the Companies.

 

(d)

A matter may at any time be referred for consideration of the relevant Board by any director (provided that, for the avoidance of doubt, all Board Fundamental Matters must be referred for consideration by both Boards at the same time), in which event the directors must ensure that it is included in the agenda for the next scheduled Board meeting (provided the referral has been made at least 7 days before the notices and agendas in respect of that meeting are scheduled for despatch to the directors).

 

(e)

A meeting of either Board may be convened at any time by any director by giving notice in accordance with clause 6.2 (provided always that clause 6.3(a) is complied with).

 

(f)

Meetings will be held in such locations as approved by both Boards. Subject to any applicable Legal Requirements directors may participate in Board meetings in person or via telephone, videoconference or similar telephonic or electronic means.

 

(g)

Board meetings will be conducted in English and minutes of the meetings will be kept in English (in addition to any other language required by applicable law from time to time).

 

(h)

Within 21 days after each meeting, the chair must give each director a copy of the meeting’s minutes.

 

(i)

Subject to clause 6.1(c) or clause 6.1(d) or otherwise as expressly permitted in this agreement (or required by applicable law), a meeting of either Board at which a quorum is present in accordance with this agreement cannot be adjourned unless approved by Super Resolution.

 

6.4	Voting entitlements

 

(a)

For the purposes of this clause 6.4:

 

(1)

a Boral Director is an Eligible Boral Director for the purposes of any resolution unless this agreement or any applicable law does not permit the director to vote on the resolution; and

 

(2)

a USG Director is an Eligible USG Director for the purposes of any Board resolution unless this agreement or any applicable law does not permit the director to vote on the resolution.

 

(b)

At any meeting of the JVC 1 Board, each Boral Director appointed to the JVC 1 Board who is present and is an Eligible Boral Director for the purposes of a resolution before the JVC 1 Board can exercise in relation to that resolution a number of votes equal to:

 

(1)

the maximum number of Boral Directors which Boral is entitled to appoint to the JVC 1 Board at the relevant time under clause 5.1 including the Singapore Nominee (whether or not that number of Boral Directors is in fact in office);

 

(2)

divided by the number of Boral Directors actually present who are Eligible Boral Directors for the purposes of the relevant resolution.

 

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(c)

At any meeting of the JVC 1 Board, each USG Director who is present and is an Eligible USG Director for the purposes of a resolution before the JVC 1 Board can exercise in relation to that resolution a number of votes equal to:

 

(1)

the maximum number of USG Directors which USG is entitled to appoint to the JVC 1 Board at the relevant time under clause 5.1(a) including the Singapore Nominee (whether or not that number of USG Directors is in fact in office);

 

(2)

divided by the number of USG Directors actually present who are Eligible USG Directors for the purposes of the relevant resolution.

 

(d)

At any meeting of the JVC 2 Board, each Boral Director appointed to the JVC 2 Board who is present and is an Eligible Boral Director for the purposes of a resolution before the JVC 2 Board can exercise in relation to that resolution a number of votes equal to:

 

(1)

the maximum number of Boral Directors which Boral is entitled to appoint to the JVC 2 Board at the relevant time under clause 5.1 (whether or not that number of Boral Directors is in fact in office);

 

(2)

divided by the number of Boral Directors actually present who are Eligible Boral Directors for the purposes of the relevant resolution.

 

(e)

At any meeting of the JVC 2 Board, each USG Director who is present and is an Eligible USG Director for the purposes of a resolution before the JVC 2 Board can exercise in relation to that resolution a number of votes equal to:

 

(1)

the maximum number of USG Directors which USG is entitled to appoint to the JVC 2 Board at the relevant time under clause 5.1(a) (whether or not that number of USG Directors is in fact in office);

 

(2)

divided by the number of USG Directors actually present who are Eligible USG Directors for the purposes of the relevant resolution.

 

(f)

Fractional votes must be counted.

 

(g)

The preceding provisions of this clause 6.4 do not apply to circulating resolutions of a Board under clause 6.5, where each Boral Director of the relevant Company in office at the relevant time will be taken to have one vote and each USG Director of the relevant Company in office at the relevant time will be taken to have one vote.

 

6.5	Circulating resolutions of directors

 

(a)

A Board will validly pass a resolution as a circulating resolution if:

 

(1)

a notice containing the resolution is sent to each director of the relevant Company; and

 

(2)

the notice states that a response is required within a specified period, which unless the directors otherwise consent may not be less than 21 days after the notice is received (or deemed received under the Constitutions); and

 

(3)

directors of the relevant Company holding the requisite majority (being the majority that would be required under clause 6.6 at a Board meeting at which all directors were present, and excluding for the avoidance of doubt directors who would not be entitled to vote on the relevant resolution under this agreement or any applicable law) signify their assent to the resolution,

 

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		24    General

 

and a single document can for these purposes constitute a circulating resolution of both Boards if signed by the requisite majority of directors of both Companies.

 

(b)

A director who does not signify his or her assent to the relevant resolution by the date specified in the notice is taken to have voted against it.

 

(c)

If the required number of the directors assent to the resolution, the resolution is passed on the last day and at the last time at which the document was assented to by a director so that the requisite majority was satisfied.

 

6.6	Board resolutions - general

 

(a)

Despite any contrary provision in this agreement, a decision in relation to any of the Board Fundamental Matters may be made only by Super Resolution of both Boards (provided that this applies subject to any applicable legal requirements, so that if a decision in relation to any Board Fundamental Matter requires any higher majority to be obtained (or any additional requirement to be met, including a requirement for shareholder approval) to be valid under any applicable law that requirement must be satisfied in addition to a Super Resolution of both Boards).

 

(b)

Except for:

 

(1)

Board Fundamental Matters;

 

(2)

where otherwise provided expressly in this agreement; and

 

(3)

matters where a greater majority is required under any law to which either of the Companies is subject,

a resolution of a Board is passed at a Board meeting if a simple majority of the votes that may be cast on the resolution (excluding votes of directors that this agreement or any applicable law does not permit to vote on the resolution) are cast in favour of it.

 

(c)

For the avoidance of doubt, if a director other than a Singapore Nominee is not permitted to vote on a resolution under any law applying to one of the Companies, he or she will be taken to be not permitted to vote on the resolution in relation to either of the Companies.

 

(d)

Without limiting clause 6.7, if a resolution of the shareholders of JVC 1 or JVC 2 (or both) is required under an applicable law to give effect to (or to cause either or both of the Companies to give effect to) a resolution passed by the Board of the relevant Company, each Shareholder must:

 

(1)

attend any shareholders’ meeting that is convened to consider any such shareholders resolution; and

 

(2)

vote in favour of that resolution.

 

6.7	Shareholder approval matters

 

(a)

Subject to clauses 6.7(b) and 6.13, but otherwise despite any contrary provision in this agreement, the Major Fundamental Matters are reserved to the Major Shareholders and the Minor Fundamental Matters are reserved to the Major Shareholders and the Minor Shareholders (if any). Subject to clauses 6.7(b) and 6.13 a decision in relation to any of the Fundamental Matters may be made only by Unanimous Resolution of Shareholders in accordance with:

 

(1)

clause 6.7(e) and 6.7(f); or

 

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		24    General

 

(2)

clause 6.7(g),

and the Companies must (and each Shareholder, to the extent within its power, must procure that the Companies) comply with any such decision in relation to any Fundamental Matter.

 

(b)

Clause 6.7(a) applies subject to any applicable legal requirements and so that if a resolution in relation to any Fundamental Matter requires any higher shareholder majority to be obtained (or any additional requirement to be met) to be valid under any applicable law that requirement must be satisfied in addition to the requirements in clause 6.7(a).

 

(c)

A Board may propose a resolution in relation to any of the Fundamental Matters by written notice to the Shareholders (whether pursuant to clause 6.7(e)(1) or clause 6.8(b)(1)) and must do so where requested by either of the Shareholders.

 

(d)

The Companies and the Boards must not take, and must procure that no JV Group Member takes, any action or decision or enter into any transaction which would constitute a Fundamental Matter without an Unanimous Resolution of the Shareholders being passed in accordance with this agreement approving such action or decision or the entry into such transaction.

 

(e)

A Unanimous Resolution of Shareholders will be passed where:

 

(1)

a notice containing the resolution is sent to each Shareholder by the Companies stating that a response is required within a specified period (which unless the Shareholders agree otherwise in writing may not be less than 21 days after the notice is received (or deemed received under the Constitutions)); and

 

(2)

it is in respect to a Major Fundamental Matter and all Major Shareholders (or where required by applicable law for the relevant resolution to be effective, all Shareholders) signify their assent to the resolution by signing and returning it to the Companies (provided that a Shareholder which does not signify its assent to the relevant resolution by the date specified in the notice is taken to have voted against it); or

 

(3)

it is in respect to a Minor Fundamental Matter and all Major Shareholders and all Minor Shareholders (if any) (or where required by applicable law for the relevant resolution to be effective, all Shareholders) signify their assent to the resolution by signing and returning it to the Companies (provided that a Shareholder which does not signify its assent to the relevant resolution by the date specified in the notice is taken to have voted against it).

 

(f)

If the required number of Shareholders assent to a resolution in accordance with clause 6.7(e)(2) or 6.7(e)(3) (as the case may be) that resolution is passed as a Unanimous Resolution on the last day and at the last time at which the document was assented to by a Shareholder so that the requisite number of supporting Shareholders was satisfied.

 

(g)

Without limiting the foregoing, a Unanimous Resolution of Shareholders will be passed where the resolution is proposed at a meeting of Shareholders convened in accordance with clause 6.8 and:

 

(1)

where it is in respect to any matter other than a Minor Fundamental Matter, all Major Shareholders vote in favour of such resolution; or

 

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		24    General

 

(2)

where it is in respect to a Minor Fundamental Matter, all Major Shareholders and Minor Shareholders (if any) vote in favour of such resolution.

 

(h)

For the avoidance of doubt, to the extent any Board Fundamental Matters include or relate to Fundamental Matters, these will require approval by the Unanimous Resolution of Shareholders.

 

6.8	Shareholder meetings

 

(a)

Unless there are no Fundamental Matters requiring consideration by the Shareholders, whenever a Board meeting has been convened a meeting of the Shareholders must also be convened in accordance with this clause 6.8 for the time immediately following the relevant Board meeting (and in the same place as the Board meeting). Additional Shareholder meetings must be convened in accordance with this clause 6.8 if:

 

(1)

agreed by a majority of both Boards; or

 

(2)

requested by either Shareholder by notice in writing to the Companies.

 

(b)

Unless all the Shareholders agree otherwise in writing:

 

(1)

the Shareholders must receive at least 21 days’ notice in writing of a meeting of the Shareholders that specifies the date, time and place of meeting, the agenda specifying in reasonable detail the matters to be discussed at the meeting and the resolutions to be proposed (including in respect to any Fundamental Matters) and attaching all documents to be tabled at that meeting;

 

(2)

the Shareholders cannot pass a resolution or transact any business unless the subject of that resolution or that business was specifically described in the notice of meeting.

 

(c)

Meetings of the Shareholders will constitute general meetings of the members of each Company, which will be held concurrently with each other.

 

(d)

No matter or business may be transacted at a meeting of Shareholders unless a quorum of Shareholders is present at the time the matter or business is dealt with (including, for the avoidance of doubt, at the time the Shareholders vote on any resolution proposed in respect to that matter or business).

 

(e)

A quorum for a Shareholders’ meeting is constituted by the attendance (in person or by proxy) of each Major Shareholder and (to the extent the business of the meeting includes any Minor Fundamental Matter) each Minor Shareholder.

 

(f)

If a quorum is not present, the scheduled Shareholders’ meeting must be adjourned in accordance with the procedure for adjournment of directors meetings specified in clauses 6.1(c), 6.1(d), and 6.1(e).

 

(g)

For the avoidance of doubt, in no circumstances may the Shareholders pass an Unanimous Resolution unless a quorum meeting the requirements in clause 6.8(e) is present.

 

(h)

A Shareholder may appoint a person (including any director it has appointed to either Board) as a proxy to attend and vote for the Shareholder at any Shareholders meeting by submitting a written appointment to the Companies that is signed by the Shareholder and contains the following information:

 

(1)

the Shareholder’s name and address;

 

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		24    General

 

(2)

the Companies’ names;

 

(3)

the proxy’s name or the name of the office held by the proxy;

 

(4)

the meetings at which the appointment may be used (provided that the appointment may be a standing one).

 

(i)

Shareholder meetings will be conducted in English and minutes of the meetings will be kept in English (in addition to any other language required by applicable law from time to time). The secretary of each meeting must distribute a copy of such minutes to each Shareholder as soon as practicable after the meeting

 

6.9	Voting at Shareholder meetings

 

(a)

Each Shareholder is entitled to that number of votes at a meeting of each Company that is equivalent to its JVC 1 Percentage or its JVC 2 Percentage (as applicable).

 

(b)

Except for Fundamental Matters or where otherwise expressly provided in this agreement, and subject to any applicable law requiring a greater majority in respect to a particular matter, approval of any matter by the Shareholders requires a simple majority of votes cast on the resolution.

 

6.10	Related party dealings

 

(a)

For any matter before either Board that requires the Board to determine whether any JV Group Member should bring a Company Claim against a Boral Respondent:

 

(1)

provided that USG’s Shareholding Percentage at the relevant time is at least 12.5%, the USG Directors have the power to cause the relevant JV Group Member to bring that Company Claim (and may pass a Super Resolution of the Board in relation to the relevant matter to the extent required by this agreement);

 

(2)

the quorum for any relevant Board meeting, while considering that matter, will be the presence of at least one USG Director only (other than in the case of JVC 1 a Singapore Nominee); and

 

(3)

the Boral Directors may not be present while that matter is considered and may not vote on that matter.

 

(b)

For any matter before either Board that requires the Board to determine whether any JV Group Member should bring a Company Claim against a USG Respondent:

 

(1)

provided that Boral’s Shareholding Percentage at the relevant time is at least 12.5%, the Boral Directors have the power to cause the relevant JV Group Member to bring that Company Claim (and may for the avoidance of doubt pass a Super Resolution of the Board in relation to the relevant matter to the extent required by this agreement);

 

(2)

the quorum for any relevant Board meeting, while considering that matter, will be the presence of at least one Boral Director only (other than in the case of JVC 1 a Singapore Nominee); and

 

(3)

the USG Directors may not be present while that matter is considered and may not vote on that matter.

 

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		24    General

 

(c)

Any Shareholder whose nominated directors cause a JV Group Member to bring a Company Claim under this clause 6.10 must indemnify that Company against any cost or loss incurred by that Company to the extent that such cost or loss arises as a direct result of the Company not succeeding in such Company Claim.

 

(d)

Clauses 6.10(a) and 6.10(b) also apply (as applicable, depending on whether the seller of the relevant Sale Business is a Boral Respondent or a USG Respondent) in relation to:

 

(1)

any decision by either Board whether, and if so on what terms, the Companies (or any other JV Group Member) should make an offer to buy the relevant Sale Business in the circumstances contemplated by clauses 10.4(b) and 10.4(c), including any decision approving a final binding offer; and

 

(2)

any decision by either Board in relation to any associated matters, including conduct of due diligence in relation to the relevant Sale Business and all matters relating to the implementation and completion of any acquisition transaction,

as if references to a Company Claim in clauses 6.10(a) and 6.10(b) were references to the relevant matter.

 

(e)

In relation to any Boral IP Option Matter:

 

(1)

provided that Boral’s Shareholding Percentage at the relevant time is at least 12.5%, the Boral Directors have the power to take all relevant decisions of either Board in relation to the Boral IP Option Matter (and may for the avoidance of doubt pass a Super Resolution of the Board in relation to the relevant matter to the extent required by this agreement);

 

(2)

the quorum for any relevant Board meeting, while considering any Boral IP Option Matter, will be the presence of at least one Boral Director only (other than in the case of JVC 1 a Singapore Nominee); and

 

(3)

the USG Directors may not be present while that matter is considered and may not vote on that matter,

(provided that for the avoidance of doubt nothing in this clause 6.10(e) is intended to fetter the rights of any relevant USG Group Member to conduct negotiations as the counterparty in respect of the relevant Boral IP Option Matter).

 

(f)

In relation to any USG IP Option Matter:

 

(1)

provided that USG’s Shareholding Percentage at the relevant time is at least 12.5%, the USG Directors have the power to take all relevant decisions of either Board in relation to the USG IP Option Matter (and may for the avoidance of doubt pass a Super Resolution of the Board in relation to the relevant matter to the extent required by this agreement);

 

(2)

the quorum for any relevant Board meeting, while considering any USG IP Option Matter, will be the presence of at least one USG Director only (other than in the case of JVC 1 a Singapore Nominee); and

 

(3)

the Boral Directors may not be present while that matter is considered and may not vote on that matter,

(provided that for the avoidance of doubt nothing in this clause 6.10(f) is intended to fetter the rights of any relevant Boral Group Member to conduct negotiations as the counterparty in respect of the relevant USG IP Option Matter).

 

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		24    General

 

(g)

For clarity:

 

(1)

this clause 6.10 will not restrict involvement by a Shareholder’s appointed directors in the ordinary day-to-day management of the Companies to the extent permitted by this agreement; and

 

(2)

clauses 6.10(d), 6.10(e) and 6.10(f) do not permit the directors appointed by a Shareholder to commit the Companies to expenditure or conduct that would be a Fundamental Matter without the approval of the requisite Unanimous Resolution of Shareholders.

 

6.11	Delegation

 

(a)

Subject to clause 6.11(b) the directors may delegate any of their powers to a committee of directors or executives of the JV Group as they think fit.

 

(b)

Decisions requiring Super Resolution of a Board must be approved by the relevant Board and cannot be delegated.

 

6.12	Subsidiaries

Each party agrees, and must do all things reasonably necessary and within their power to ensure, that (except as otherwise agreed by the Shareholders in writing, and subject to any applicable shareholders agreements or similar obligations to third parties where the relevant JV Group Member is itself a joint venture entity):

 

(a)

the board and operation of each JV Group Member operate consistently with the decisions of the Boards and the Shareholders; and

 

(b)

each JV Group Member must not effect any matter which would be a:

 

(1)

Board Fundamental Matter unless both Boards have passed the appropriate resolution in accordance with clause 6.6; or

 

(2)

Fundamental Matter unless the Shareholders have passed the appropriate resolution in accordance with clause 6.7.

 

6.13	De minimis Shareholder

Notwithstanding any other provision of this agreement, during any period in which a Shareholder’s Shareholding Percentage is less than 12.5% (so that the other Shareholder’s Shareholding Percentage is more than 87.5%), all Fundamental Matters will be treated as Board Fundamental Matters so that:

 

(a)

clause 6.6(a) will apply to all decisions in relation to such matters for the duration of that period; and

 

(b)

clause 6.7(a) will not apply to decisions in relation to such matters for the duration of that period.

 

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7

Deadlock

 

 

 

7.1

Deadlock

For the purposes of this clause 7 a Deadlock will occur if any of (a), (b) or (c) below applies:

 

(a)

Both Boards or the Shareholders (as relevant having regard to the nature of the relevant matter) fail to pass a resolution for or against a particular matter by the requisite majority required by this agreement either:

 

(1)

at 3 or more consecutive Board or Shareholder meetings (as relevant) at which the particular matter is the subject of a resolution proposed in accordance with this agreement (and for the avoidance of doubt any adjournments of a Board or Shareholder meeting will count for these purposes as forming part of the original meeting); or

 

(2)

within 6 months after the relevant matter is first the subject of a resolution proposed to both Boards or Shareholders (unless withdrawn within that period by the proponent party or director),

and, in either case, in the reasonable opinion of either Shareholder (acting in good faith) doing, or not doing, the thing or things with which the relevant matter is concerned:

 

(3)

would or may have a material adverse effect on the consolidated earnings before interest, tax, depreciations and amortisation of the JV Group (determined in accordance with the JV Group’s usual accounting policies at the relevant time) for any Financial Year of more than US$40 million or 20% of the previous year, whichever is higher;

 

(4)

would involve a material change in the overall nature of the Business; or

 

(5)

would or may have a material adverse impact on the reputation of any JV Group Member or of either Shareholder (or a Parent or any Related Corporation of a Shareholder) in any jurisdiction in which the relevant entity is registered or conducts material operations.

 

(b)

Each of the following applies:

 

(1)

a decision or action in relation to a Board Fundamental Matter or a Fundamental Matter has been taken by a JV Group Member without the Unanimous Resolution of Shareholders or a Super Resolution of both Boards (as relevant);

 

(2)

the relevant decision or action is reasonably capable of reversal or remedy; and

 

(3)

within 45 days after the matter is first brought before both Boards or the Shareholders (as relevant):

 

(A)

the decision or action has not been ratified by Super Resolution of both Boards or Unanimous Resolution of the Shareholders (as relevant);

 

(B)

no resolution has been passed by Super Resolution of both Boards or Unanimous Resolution of the Shareholders (as relevant) in relation to the action to be taken to reverse or

 

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		24    General

 

remedy the relevant decision or action (or to the effect that the Boards or Shareholders (as relevant) consider that no such action is required in the circumstances); and

 

(C)

the relevant decision or action has not otherwise been reversed or remedied to the reasonable satisfaction of both Shareholders.

 

(c)

Each of the following applies:

 

(1)

a JV Group Member has breached clause 1.3(d)(1) of this agreement, clause 8.2(e) of this agreement or any IP Licence Agreement (in each case) in any material respect;

 

(2)

the relevant breach is reasonably capable of reversal or remedy; and

 

(3)

within 45 days after the matter is first brought to the attention of the Shareholders (which must by written notice from one Shareholder to the other, or by the Companies to the Shareholders, specifying that the notice is for the purposes of this clause 7.1(c)):

 

(A)

the Shareholders have not agreed in writing to the action to be taken to reverse or remedy the breach (or to the effect that the Shareholders consider that no such action is required in the circumstances); and

 

(B)

the relevant breach has not otherwise been reversed or remedied to the reasonable satisfaction of both Shareholders.

 

7.2	Escalation process

 

(a)

If a Deadlock occurs, without limiting any other right a Shareholder may have under this agreement and subject to clause 7.2(e), either Shareholder may give the other Shareholder a written notice (Deadlock Notice) setting out the matter in question (the Disputed Matter), its position on the matter and its reasons for adoption of such position.

 

(b)

Following the issue of a Deadlock Notice, the parties must procure that the Chief Executive Officers of Boral Guarantor and USG Guarantor meet and use all reasonable endeavours in good faith to resolve the Disputed Matter as soon as possible.

 

(c)

If the Disputed Matter remains unresolved within 21 days’ after the date of the Deadlock Notice, the parties must procure that the matter is referred to a ‘panel’ comprising the Chief Executive Officer and the lead independent director of USG Guarantor on the USG side and the Chief Executive Officer and the chairman of Boral Guarantor on the Boral side (or such other persons as the Shareholders may agree) and that the ‘panel’ meets and uses all reasonable endeavours in good faith to resolve the Disputed Matter as soon as possible.

 

(d)

If the Disputed Matter remains unresolved by the date (the Submission Date) which is 21 days’ after referral to the ‘panel’ contemplated by clause 7.2(c), the dispute must be submitted to mediation, on the following basis:

 

(1)

the mediation must be conducted in Sydney, Australia in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation Rules (at the date of this agreement), except where those rules conflict with this clause 7.1(b);

 

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		24    General

 

(2)

if the Shareholders have not agreed upon the mediator within 7 days’ after the Submission Date the mediator is a person nominated by The Institute of Arbitrators & Mediators Australia acting on the request of either Shareholder (and multiple nominations may be requested to the extent necessary to identify a mediator willing to act on the matter); and

 

(3)

the Shareholders must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.

 

(e)

In the event a Deadlock also constitutes an Event of Default and a Non-Defaulting Shareholder issues a Default Notice in accordance with clause 14.2(a), then the Default Notice and the provisions of clause 14 will prevail over this clause 7 and the Deadlock procedure contemplated by this clause 7.1(b) and the remainder of clause 7 will immediately cease.

 

7.3	Sale process

If clause 7.2(d) requires the disputed matter to be submitted to mediation and either:

 

(a)

the Disputed Matter remains unresolved by the date which is 6 weeks after the matter is first referred to a mediator agreed or nominated under clause 7.2(d); or

 

(b)

the Shareholders agree in writing that the mediation will not be successful in resolving the dispute,

then, at any time during the period of 14 days’ following the date referred to in clause 7.3(a) (or, if earlier, the agreement in writing referred to in clause 7.3(b)), either Shareholder may, provided it is a Major Shareholder or a Minor Shareholder at the relevant time, serve a written notice (Sale Notice) on the other parties which states that the Shareholder requires a sale process to be undertaken in accordance with the remaining provisions of this clause 7.

 

7.4	Appointment of investment bank

 

(a)

If a Shareholder issues a Sale Notice in accordance with clause 7.3, the Shareholders and (unless the Shareholders agree that there will be no sale of the Business) the Companies (the applicable parties being, in this clause, the Appointing Parties) must use their best endeavours to appoint an investment bank of international standing (Sale Agent) to conduct a trade sale process as contemplated below.

 

(b)

If the Shareholders cannot agree on the identity of the Sale Agent within 14 days after the date of service of the Sale Notice, the Sale Agent will be an investment bank drawn by lot from the following list by the Chair of the Boards for the time being:

 

(1)

Goldman Sachs (or its successor entity)

 

(2)

Citi (or its successor entity)

 

(3)

Credit Suisse (or its successor entity)

 

(4)

UBS (or its successor entity)

 

(5)

Deutsche Bank (or its successor entity)

 

(6)

JP Morgan (or its successor entity)

 

(7)

Bank of America (or its successor entity)

 

(8)

Morgan Stanley (or its successor entity)

 

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		24    General

 

and so that if the selected bank is unable or unwilling to accept the appointment, another name will be drawn by lot by the Chair until a bank accepts the appointment (and each party authorises the Chair for the time being to act accordingly).

 

(c)

Subject always to clause 7.4(e), the Appointing Parties must execute an engagement letter on reasonable market terms with the Sale Agent selected in accordance with the preceding clauses and instruct and authorise the Sale Agent to conduct a trade sale process seeking binding offers to buy:

 

(1)

all or substantially all of the Business; or

 

(2)

all of the JV Shares on issue at the relevant time,

(the JV Enterprise).

 

(d)

Subject always to clause 7.4(e), the Appointing Parties must instruct and authorise the Sale Agent to conduct the trade sale process so as to maximise the value received for the JV Enterprise. Without limiting the foregoing, the Appointing Parties must instruct the Sale Agent to:

 

(1)

adopt a competitive tender process which is consistent with market practice for the sale of companies or businesses of a similar size as the JV Group and its Business, and which operate in similar industries;

 

(2)

solicit and initiate negotiations with potential offerors who may include the Shareholders, the Parents or their respective Affiliates;

 

(3)

use all reasonable endeavours to obtain the maximum possible offer price for the JV Enterprise within 180 days after the date of the Sale Notice (provided that an offer from an existing Shareholder will be considered on the basis that that Shareholder is only required to purchase the part of the JV Enterprise it does not already own and that the price offered would be reduced proportionately);

 

(4)

prepare commercially reasonable terms of sale for the JV Enterprise (having regard to market practice) and negotiate and agree, as necessary, any amendment to those terms requested by potential offerors to the extent that the Sale Agent considers that the amendment is commercially reasonable and consistent with market practice for commercial transactions of substantially similar nature and complexity (provided that the terms must be such as to allow termination without liability to the vendors in the circumstances contemplated by clause 7.7(a)(5));

 

(5)

use all reasonable endeavours to ensure that potential purchasers deal exclusively with the Sale Agent in respect of the sale of the JV Enterprise (and not the Shareholders or any JV Group Members);

 

(6)

ensure that potential offerors (other than the Shareholders, their Parents or Affiliates) are not given access to JV Information or Shareholder Information in relation to any Shareholder unless the relevant person first enters into a deed poll in favour of the parties to this agreement whereby it agrees to comply with provisions substantially similar to those contained in clause 18; and

 

(7)

act in the best interests of each Shareholder in performing the functions in this clause 7.4 and clause 7.5, and not prefer the interests of one Shareholder over the other.

 

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		24    General

 

(e)

The Appointing Parties must instruct the Sale Agent as follows:

 

(1)

if the Shareholders provide warranties or indemnities to a purchaser of the JV Enterprise in respect of the Companies or the Business, the Sale Agent must ensure that the liability of the Shareholders under any such warranty or indemnity is apportioned between the Shareholders in proportion to their Shareholding Percentages;

 

(2)

the Sale Agent must have regard to the terms of the Share Sale and Subscription Agreements at the completion of which this agreement was entered into (the Sale Agreements) and so that:

 

(A)

the liability regime governing the liability of the Companies (in the case of a sale of the Business) or a Shareholder (in the case of a sale of the JV Shares) to a purchaser of the JV Enterprise (both in terms of financial thresholds and caps as a percentage of purchase price, and general limitations and exclusions) must not be materially more onerous than the corresponding regime applicable to the parties under the Sale Agreements; and

 

(B)

a Shareholder must not without its prior written consent be bound by any material undertaking or obligation in relation to the transaction unless a reasonably corresponding provision was applicable in relation to vendor parties under the Sale Agreements;

 

(3)

the sale documents agreed with the potential purchaser will include an enforceable regime limiting the operations of the JV Group and the conduct of its Business to the Territory (provided that this is not intended to limit any party’s obligations under clause 10 of this agreement); and

 

(4)

a Shareholder must not, without its prior written consent, be bound by any undertaking or obligation which would restrict the Shareholder (or its Parent or Affiliates) from carrying on or otherwise having an interest in, or engaging in, any business (provided that this is not intended to limit any party’s obligations under clause 10 of this agreement).

 

(f)

The Appointing Parties must instruct and authorise the Sale Agent to report to the Appointing Parties at the conclusion of the sale process detailing:

 

(1)

the binding offers received for the JV Enterprise;

 

(2)

the offer (including identity of the offeror, the price and full terms of sale and purchase) which in the Sale Agent’s opinion represents the highest value for the JV Enterprise in all the circumstances, including having regard to conditionality and the ability of the offeror to conclude the transaction (the Best Offer),

provided that the Sale Agent may only nominate an offer as the Best Offer if the Sale Agent is satisfied the terms of the offer are consistent with the requirements of clause 7.4(d)(4) and if clause 7.4(e) is complied with in relation to the offer.

 

7.5	Acceptance of Best Offer

 

(a)

Either Shareholder may within 14 days of receipt of the Sale Agent’s nomination of the Best Offer (the First Response Period) give written notice to the other Shareholder and the Companies to the effect that it requires the Best Offer to be accepted (an Execution Notice).

 

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		24    General

 

(b)

If neither Shareholder gives an Execution Notice within the First Response Period, clause 7.7 will apply.

 

(c)

If a Shareholder gives an Execution Notice within the First Response Period, the other Shareholder will have the right (Call Right) by notice to the first Shareholder and the Companies within a further 14 days after receipt of the Execution Notice (the Second Response Period) to purchase the JV Enterprise on the terms of the Best Offer in accordance with the remaining provisions of this clause 7.5. If both Shareholders give an Execution Notice within the First Response Period only the first notice issued (measured by time of receipt by the Companies) will be valid for the purposes of this clause 7.5.

 

(d)

If a Shareholder exercises it Call Right within the Second Response Period (Exercising Shareholder), the relevant parties must within 45 days after exercise enter into a binding agreement for the sale of the JV Enterprise to the Exercising Shareholder at the price and on the terms of the Best Offer (or on such other terms as the Shareholders may agree in writing), provided that:

 

(1)

if the Best Offer contemplates the acquisition of all JV Shares (as opposed to the Business) the terms will be amended to the extent reasonably required to ensure that the Exercising Shareholder is only required to purchase the JV Shares it does not already own (and the price will be reduced proportionately); and

 

(2)

the terms will be amended to include conditions precedent in relation to material Consents identified by the Exercising Shareholder.

 

(e)

Where an agreement is entered into pursuant to clause 7.5(d) but terminates before closing of the sale as a result of failure to obtain any Consent identified by the Exercising Shareholder, then to the extent the Best Offer remains open for acceptance the Appointing Parties must instruct and authorise the Sale Agent to accept the Best Offer on their behalf within 60 days from the termination, to execute the transaction on their behalf in accordance with the terms of the Best Offer, and to remit the proceeds to the Shareholders or the Companies (as applicable including in light of whether a Shareholder submitted the Best Offer).

 

(f)

If a Shareholder gives an Execution Notice within the First Response Period and the other Shareholder does not exercise its Call Right within the Second Response Period, the Appointing Parties must instruct and authorise the Sale Agent to accept the Best Offer on their behalf, to execute the transaction on their behalf in accordance with the terms of the Best Offer, and to remit the proceeds to the Shareholders or the Companies (as applicable including in light of whether a Shareholder submitted the Best Offer).

 

(g)

If the sale of the JV Enterprise under this clause 7.5 involves the sale of all or substantially all of the Business, the parties must take all reasonable steps to ensure that the net proceeds of the sale are returned to Shareholders in proportion with their respective Shareholding Percentages as soon as reasonably possible.

 

7.6	Support to Sale Agent

 

(a)

Each Appointing Party must appoint the Sale Agent as its agent to perform the functions specified in clauses 7.4 and 7.5, and must do all things reasonably necessary to authorise the Sale Agent to perform those functions (and do all other things which the Sale Agent considers necessary or incidental to those functions) on its behalf, including executing any document reasonably requested by the Sale Agent for the purpose of providing such authority.

 

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		24    General

 

(b)

Each party must cooperate with, and provide all reasonable access and assistance required by the Sale Agent and potential purchasers in relation to the sale of the JV Enterprise, including access to due diligence materials and personnel involved in the management of the JV Group and the Business.

 

(c)

The Shareholders must bear the fees and disbursements charged by the Sale Agent in respect of the sale of the JV Enterprise (and any indemnities under the Sale Agent’s customary engagement terms) in proportion to their Shareholding Percentages.

 

7.7	Failure of process

 

(a)

This clause 7.7 will apply if a Shareholder issues a Sale Notice in accordance with clause 7.3 but any of the following occurs (each a Failure Event):

 

(1)

the parties do not agree on a Sale Agent and no investment bank specified in clause 7.4(b) is willing or able to accept the appointment;

 

(2)

a Sale Agent is appointed but no credible offers for the JV Enterprise are received within 180 days after the Sale Agent’s appointment or the Sale Agent is unwilling or unable to identify a Best Offer which meets the requirements of clause 7.4(f) within 180 days after the Sale Agent’s appointment;

 

(3)

a Best Offer is identified but neither Shareholder gives an Execution Notice within the First Response Period;

 

(4)

clause 7.5(e) applies, but the Best Offer is withdrawn, the relevant counterparty defaults or the transaction is otherwise not concluded on the Best Offer terms within the timeframe required by that clause;

 

(5)

the JV Enterprise otherwise remains unsold 12 months after the date of the Sale Notice (whether because an agreement to sell the JV Enterprise has been entered into but fails to close within that timeframe or for any other reason).

 

(b)

If this clause 7.7 applies in respect of a Sale Notice no party will have any further right or obligation in relation to the sale of the JV Enterprise after the relevant Failure Event unless a further Sale Notice is given in respect of a Deadlock in accordance with this agreement. However this does not prevent either Shareholder subsequently serving a Deadlock Notice (or by extension a Sale Notice) on the other in respect of the Deadlock that gave rise to the original Sale Notice to the extent that:

 

(1)

if that Deadlock occurred under clause 7.1(a), both Boards or the Shareholders (as relevant having regard to the nature of the relevant matter) have not by the time of the Failure Event passed a resolution for or against a particular matter by the requisite majority required by this agreement

 

(2)

if that Deadlock occurred under clause 7.1(b), clauses 7.1(b)(3)(A), (B) and (C) continue to apply in relation to the relevant decision or action at the time of the Failure Event; and

 

(3)

if that Deadlock occurred under clause 7.1(c), clauses 7.1(c)(3)(A) continue to apply in relation to the relevant decision or action at the time of the Failure Event.

 

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		24    General

 

Part B – Business operations

 

 

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		24    General

 

8	Conduct of business

 

 

8.1	Strategic Plan and Budget

 

(a)

The agreed initial Strategic Plan for the period to 30 June 2018 is attached to this agreement as Attachment 1.

 

(b)

The parties must use their respective best endeavours to ensure that no later than 2 months before the commencement of:

 

(1)

each Financial Year the Boards are in a position to consider, and if thought fit, resolve to adopt under clause 6.6 an annual Budget for the following Financial Year and a rolling 5 year Strategic Plan for the following 5 Financial Years; and

 

(2)

each calendar year the Boards are in a position to consider and if thought fit, resolve to adopt under clause 6.6 an annual Budget for the following calendar year.

 

(c)

The Strategic Plan or Budget (or both) may be amended or replaced at any time and from time to time as a Board Fundamental Matter.

 

(d)

The Shareholders must use all reasonable endeavours to ensure that the JV Group conducts the Business in accordance with the Strategic Plan and Budget from time to time (but this does not oblige any Shareholder to provide any form of funding or financial assistance).

 

8.2	Conduct of business

Each of the Companies must ensure that, and each party must use its reasonable endeavours to ensure that:

 

(a)

books and records: each JV Group Member keeps books of account and make true and complete entries in them of all its dealings and transactions, and ensure that such books of account and other records of the relevant entity are maintained in accordance with applicable laws;

 

(b)

government requirements: each JV Group Member complies with the requirements of any Government Agency relating to the conduct of the Business and its assets;

 

(c)

complies with law and Transaction Documents: each JV Group Member complies with all applicable Legal Requirements and with the terms of each Transaction Document to which it is party;

 

(d)

complies with sanctions: each JV Group Member complies with any sanction, embargo or other trade restriction or disclosure requirement imposed by virtue of the involvement of either Shareholder as holders of JV Shares or parties to this agreement (provided such matters have been advised to the Companies by the affected Shareholder);

 

(e)

anti bribery: without limiting the foregoing:

 

(1)

each JV Group Member at all times conducts its business, and is otherwise, in compliance with:

 

(A)

all Anti-Corruption Laws to which the JV Group Member is subject from time to time; and,

 

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		24    General

 

(B)

without limiting the foregoing and during any period which a USG Group Member’s Shareholding Percentage is 37.5% or more, the United States Foreign Corrupt Practices Act 1977;

 

(2)

no JV Group Member nor any of their Representatives nor any other person acting on their behalf:

 

(A)

takes any action directly or indirectly that would result in a violation of any applicable Anti-Corruption Law (including anti-money laundering laws);

 

(B)

comes under administrative, regulatory, civil or criminal investigation, indictment, audit or internal investigation with respect to any suspected, alleged or actual violation of any Anti-Corruption Law;

 

(C)

makes any offer, payment or promise or authorises the payment of any money, or other property, gift, promise to give, or authorisation of the giving of, anything of value, directly or indirectly, to: (i) any Government Official; (ii) any person while having reason to believe that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to a Government Official; or (iii) any other person if, in any such case, such payment or transfer would violate the laws of the country in which it is made or the laws of any other relevant jurisdiction; or

 

(D)

accepts or receives any improper or unlawful contributions, payments, gifts, or expenditures in connection with the operation of their businesses;

 

(3)

no payments or transfers of value are made directly or indirectly by any JV Group Member, their respective Representatives or any other person or entity acting on behalf of any of them, having the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business or securing improper business advantage.

 

(f)

codes of conduct: complies with any codes of conduct or policies approved by the Boards as a Super Resolution;

 

(g)

safety: complies with industry best practice in relation to safety issues in the conduct of its operations; and

 

(h)

corporate existence: maintains its corporate existence (except in the case of a winding up or deregistration approved in accordance with this agreement).

 

8.3

Tax

Each party to this agreement acknowledges and agrees:

 

(a)

to cooperate with the USG Group in good faith to ensure that the ownership of entities by the JV Group are structured to enable the USG Group to maintain the level of ownership required by section 902 of the Code;

 

(b)

that the shares and assets owned by the following entities are subject to a gain recognition agreement filed with the U.S. government and that the JV Group will not sell or cause to be sold the shares or assets of these businesses prior to January 1, 2019:

 

(1)

USG Manufacturing Worldwide Ltd;

 

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		24    General

 

(2)

USG ChinaLux S.a.r.l.;

 

(3)

Star-USG Building Materials Co., Ltd;

 

(4)

USG Asia Pacific Holdings Pte. Ltd;·

 

(5)

USG Interiors Pacific Ltd;

 

(6)

USG Interiors Australia Pty Ltd; and·

 

(7)

USG Cayman Holdings Ltd;

 

(c)

that the USG Guarantor, as a US-based multinational, is subject to various detailed reporting requirements (as amended from time to time) and to comply with these reporting requirements the USG Group will require, and the Companies will provide (and will procure that each JV Group Member provides):

 

(1)

detailed information regarding the computation of earnings and profits of each JV Group Member and the nature of those earnings;

 

(2)

receipts evidencing foreign taxes paid by each JV Group Member; and

 

(3)

any other information the USG Group requires in respect to the JV Group in order to comply with its reporting obligations to a Government Agency;

 

(d)

that the Boral Guarantor, as an Australian-based multinational, is subject to various detailed reporting requirements (as amended from time to time) and to comply with these reporting requirements the Boral Group will require, and the Companies will provide (and will procure that each JV Group Member provides) any information the Boral Group requires in respect to the JV Group in order to comply with its reporting obligations to a Government Agency;

 

(e)

that the JV Group will make any tax election with respect to any matters relating to taxation in the United States of America that a USG Group Member reasonably requests provided it does not create any detrimental effect to the entity making the election or to the JV Group or the Boral Group.

 

8.4	Periodic reports

Without limiting clause 8.3, the Companies must ensure that, and each Shareholder must use its reasonable endeavours to ensure that, the Companies provide reasonable information and updates to Shareholders in relation to the operations and performance of the JV Group, including:

 

(a)

as soon as practicable after the end of each quarter of a Financial Year, but no later than 7 days after the end of that quarter:

 

(1)

a profit and loss statement and quarterly cash flow statement for the quarter and for the current Financial Year to date; and

 

(2)

a balance sheet as at the end of the quarter,

each prepared in accordance with IFRS (reconciled with US GAAP) and a quarterly review will be completed and provided to Deloitte Chicago in accordance with its specified processes no later than 12 business days (based on business days in Chicago) after the end of the quarter;

 

(b)

as soon as practicable following the end of each Financial Year, an audited profit and loss statement, cash flow statement and balance sheet for that Financial Year, prepared in accordance with IFRS (reconciled with US GAAP);

 

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		24    General

 

(c)

as soon as practicable following 31 December in each calendar year (and in any event no later than 25 days after 31 December), an audited profit and loss statement, cash flow statement and balance sheet for the 12 month period ending on that date, prepared in accordance with IFRS (reconciled with US GAAP);

 

(d)

as soon as practicable (and in any event no later than 7 days) after the end of each calendar month, unaudited management accounts, which must include a detailed statement of financial performance, statement of financial position and cash-flow statement and an analysis of sales and other revenues; and

 

(e)

any other information reasonably requested by any Shareholder (at its cost) to satisfy any local or overseas reporting requirement to any Government Agency or regulatory body which has jurisdiction over the Shareholder,

and that, without limiting any of the time periods specified above, so far as practicable the timing of delivery of such information takes into account the reporting obligations of each Shareholder (and their respective Parents).

 

8.5	Access to information

 

(a)

Subject to clause 18, each Shareholder may, at its own expense (but subject to providing reasonable advance notice of at least 2 Business Days and not unduly interfering with the operations of the Business):

 

(1)

inspect and make copies of all Records; and

 

(2)

have access to personnel, assets and operations of each JV Group Member,

including for the purposes of a Shareholder conducting an external audit of the JV Group.

 

(b)

The Companies must (and must procure that each JV Group Member) co-operates fully in any such inspection, including by providing appropriate and secure office facilities in the relevant premises, providing copies of any Records and making appropriate personnel available to answer questions.

 

(c)

Each director may provide its appointing Shareholder with any information acquired by the director in his or her capacity as a director of either of the Companies (or of any other JV Group Member). For the avoidance of doubt clauses 10 and 18 apply in relation to use and disclosure of such information by the Shareholders.

 

8.6

Auditor

 

(a)

The parties agree that the JV Group will appoint:

 

(1)

KPMG as auditor in respect of JVC 2 and its Subsidiaries for the Financial Year ending 30 June 2014;

 

(2)

Deloitte as auditor in respect of JVC 1 and its Subsidiaries for the Financial Year ending 30 June 2014.

 

(b)

In respect of subsequent Financial Years Deloitte must be appointed as sole auditor for the JV Group unless otherwise agreed as a Major Fundamental Matter by Unanimous Resolution of the Shareholders.

 

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		24    General

 

(c)

Audits must be conducted in accordance with:

 

(1)

the standards of the Public Company Accounting Oversight Board (United States) and the U.S. Securities and Exchange Commission; and

 

(2)

the Corporations Act 2001, Australian Accounting Standards and the Corporations Regulations 2001 (Cth),

provided that, in the event of any inconsistency, the Shareholders will discuss in good faith an appropriate solution.

 

8.7

Dividends

 

(a)

The Companies’ Dividend policy will be to target distribution of 50% of the combined after tax profit of the JV Group to Shareholders (in proportion to each Shareholders’ Shareholding Percentage at the relevant time), with the balance to be retained for reinvestment into the business, unless the Shareholders decide to adopt a different policy by Unanimous Resolution.

 

(b)

Despite clause 8.7(a) (and subject to clause 8.7(c)), profits of the JV Group must not be distributed and must be retained to the extent necessary:

 

(1)

to ensure that the financing facilities of the JV Group from time to time are complied with;

 

(2)

to ensure that a sufficient amount has been set aside for working capital, investment and expansion as specified in the Strategic Plan for the relevant period;

 

(3)

to ensure that any distribution by a Company does not exceed the amount legally available for distribution by that Company; and

 

(4)

to ensure that the each JV Group Member is able meet any capital adequacy or solvency requirements, and is able to pay its debts as and when they fall due.

 

(c)

If JVC 2:

 

(1)

has profits that may be paid as fully franked dividends consistently with the Dividend policy in force at the relevant time; but

 

(2)

is not permitted to distribute those profits under clause 8.7(b),

JVC 2 may distribute those profits as fully franked dividends on condition that each Shareholder agrees to forthwith subscribe an equivalent amount for new JV Shares on a pro-rata basis proportionate to its Shareholding Percentage at the time (and the Boards may determine the respective subscription prices per JVC 1 Share and JVC 2 Share on the basis that they need not be the same).

 

(d)

The Boards may by Super Resolution of both Boards cause either or both Companies to declare and pay a Dividend subject to and in accordance with clauses 8.7(a) to 8.7(c).

 

8.8

Insurance

 

(a)

Unless otherwise agreed by the Shareholders, each Shareholder must independently purchase and maintain customary insurance for each of their nominee directors on either Board for any liability incurred by the director as a director of either of the Companies (or of any other JV Group Member).

 

(b)

Subject to clause 8.8(a), the Companies must ensure that, and each Shareholder must use its reasonable endeavours to ensure that, the JV Group maintains such customary insurances for such amounts as are generally maintained by companies undertaking similar business to that of the JV Group.

 

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8.9	Further funding

 

(a)

In the event that the JV Group requires additional funding, the parties agree that such funding should be sourced in the following order of preference:

 

(1)

first from operating cash flows of the JV Group;

 

(2)

second, from third party financiers utilising the JV Group’s borrowing capacity; and

 

(3)

third, from capital calls to Shareholders in accordance with the remaining provisions of this clause 8.9.

 

(b)

The Shareholders agree that the Companies will not call for any capital from the Shareholders unless the Companies have used all reasonable endeavours to raise sufficient funds from third party financiers (to the extent operating cash flows are insufficient) and there remains a funding shortfall.

 

(c)

Unless the Shareholders agree otherwise in relation to any individual call, the parties must ensure that any call for capital:

 

(1)

is approved by Unanimous Resolution of the Shareholders as a Major Fundamental Matter;

 

(2)

is limited to the amount required to fund the relevant shortfall (as referred to in clause 8.9(b));

 

(3)

(subject always to clause 8.9(f)) specifies the form in which capital is to be provided (being JV Shares, other securities or debt) and the key terms of such provision;

 

(4)

is offered to each Shareholder on a pro-rata basis proportionate to its Shareholding Percentage and on the same terms; and

 

(5)

specifies an agreed valuation basis for the purposes of any dilution of a Shareholder’s Shareholding Percentage in the circumstances contemplated by clause 8.10,

or is made in accordance with clause 8.9(h).

 

(d)

A call for capital must be made by notice in writing from the Companies to each Shareholder (given no later than 21 days after the date of approval of the relevant call, or in accordance with clause 8.9(h) where applicable) which confirms the details in clauses 8.9(c)(1) to 8.9(c)(5) above (or clauses 8.9(h)(3) to 8.9(h)(6) in the case of a call made under clause 8.9(h)) and specifies the date by which the capital call is to be satisfied, which shall be:

 

(1)

no earlier than 30 days after the date of the notice; and

 

(2)

a Business Day,

(such a notice being a Valid Funding Notice)

 

(e)

For the avoidance of doubt, no Shareholder has any obligation to fund in response to a Valid Funding Notice or other capital call. Where the Companies issue a Valid Funding Notice:

 

(1)

to the extent either Shareholder contributes capital in response to the call within the time period specified in the Valid Funding Notice, the Companies must issue JV Shares to that Shareholder (in accordance with clause 19) or otherwise comply with the terms of the Valid Funding Notice; and

 

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(2)

if one Shareholder contributes in full its Shareholding Percentage of the call in the time period specified in the Valid Funding Notice but there is a shortfall in capital provided in response to the Valid Funding Notice because the other Shareholder (the Non-Funding Shareholder) has not contributed in full (or at all) its Shareholding Percentage of the call in the time period specified in the Valid Funding Notice (with the unpaid amount being the Shortfall Capital) then the Companies must immediately notify the other Shareholder and the other Shareholder may elect to contribute all (but not some only) of the Shortfall Capital in accordance with clause 8.9(f),

and for the avoidance of doubt if there is a funding shortfall because neither Shareholder has satisfied the call in proportion to its Shareholding Percentage (whether or not either has funded a portion) neither party will be entitled to fund the other’s shortfall.

 

(f)

If a Shareholder elects to contribute all of the Shortfall Capital under clause 8.9(e)(2) that Shareholder must contribute the relevant amount within 7 days after the Shareholder is notified of the Shortfall Capital by the relevant Company (and otherwise it will be taken to have elected not to contribute the relevant funds). Any such contribution will be:

 

(1)

to the extent that the terms set out in the Valid Funding Notice did not include subscription and issue of JV Shares (that is the funding is not dilutive to any Shareholder’s Shareholding Percentage), on the terms set out in the Valid Funding Notice; and

 

(2)

subject to clause 8.9(g), otherwise on the terms below:

 

(A)

the Shortfall Capital will initially be contributed as separate unsecured loans to the Companies (in proportion to the relative amounts required to be subscribed for JVC 1 Shares and JVC 2 Shares under the Valid Funding Notice), each on the Loan Terms or on such other terms as the Shareholders may agree in the circumstances (each a Shortfall Loan);

 

(B)

if the Non-Funding Shareholder contributes the relevant Restoration Amount within the Catch-Up Period pursuant to clause 8.10, the proceeds of such contribution must immediately be applied in satisfaction of the Shortfall Loans; and

 

(C)

if the Non-Funding Shareholder fails to contribute the relevant Restoration Amount within the Catch-Up Period pursuant to clause 8.10, the outstanding amounts of the Shortfall Loans (including accrued interest) must be satisfied by applying them so that the Shareholder that elected to contribute all of the Shortfall Capital subscribes for and is issued JV Shares at the price per share set out in the Valid Funding Notice (and otherwise on the terms set out in the Valid Funding Notice, to the extent applicable in the circumstances).

 

(g)

If the Shortfall Capital is less than US$25 million (or its equivalent in any other currency), unless all Major Shareholders agree in writing, irrespective of the terms of the relevant Valid Funding Notice, any contribution of Shortfall Capital by a Shareholder must take the form of loan finance, to be provided on arm’s length market terms (with no subscription for equity).

 

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(h)

Notwithstanding the foregoing, if during any period in which there are two Major Shareholders:

 

(1)

a proposed capital call on Shareholders has been put forward for approval and an Unanimous Resolution approving such capital call has not been passed within 30 days (in circumstances where clause 8.9(b) has been complied with); and

 

(2)

in the reasonable opinion of a Major Shareholder (acting in good faith), either Company is likely to suffer an Insolvency Event within 60 days if funding is not provided,

that Major Shareholder may, acting in good faith, by notice to the Companies and the other Shareholders require the Companies to issue a funding notice on terms specified by that Major Shareholder provided that such terms must:

 

(3)

be limited to the amount of funding required to avoid the apprehended Insolvency Event;

 

(4)

specify the form in which the funding is to be provided (being JV Shares, other securities or debt) and the key terms of such provision;

 

(5)

be offered to each Shareholder on a pro-rata basis proportionate to its Shareholding Percentage and on the same terms;

 

(6)

specify a valuation basis for the purposes of any dilution of a Shareholder’s Shareholding Percentage in the circumstances contemplated by clause 8.10, which is based on a good faith valuation of each of the Companies at the relevant time,

and the Companies must comply with such a request within 10 days (in which case the relevant funding notice will constitute a Valid Funding Notice for the purposes of this clause 8.9).

 

(i)

For the avoidance of doubt where a Valid Funding Notice has been issued in accordance with this agreement, any further issues of securities or entry into loan arrangements required under this clause 8.9 or clause 8.10 will not require further approval as a Board Fundamental Matter or Fundamental Matter.

 

8.10	Anti-dilution

 

(a)

This clause 8.10 applies in circumstances where:

 

(1)

the relevant Valid Funding Notice required capital to be contributed in the form of subscription for JV Shares; and

 

(2)

there is a Non-Funding Shareholder and the other Shareholder is entitled to, and does, contribute all of the Shortfall Capital under clause 8.9(e)(2).

 

(b)

Where this clause 8.10 applies, the Non-Funding Shareholder will have 90 days from the date of contribution of the Shortfall Capital (Catch-Up Period) during which it may contribute, by way of subscription for JV Shares all (but not less than) the amount (the Restoration Amount) equal to:

 

(1)

the amount of the Shortfall Capital; plus

 

(2)

the amount of accrued interest under the relevant Shortfall Loans as at the relevant date.

 

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(c)

If the Non-Funding Shareholder contributes the Restoration Amount in full within the relevant period, the Companies must allot and issue JV Shares (in accordance with clause 18.6(b)) to the Non-Funding Shareholder on the basis that:

 

(1)

the same number of JV Shares will be issued as would have been issued to the Non-Funding Shareholder had the Non-Funding Shareholder contributed in full its Shareholding Percentage of the relevant call in the time period specified in the original Valid Funding Notice; but

 

(2)

the subscription price per share in each Company will be increased (so that the effective price per share in each Company is the relevant proportion of the Restoration Amount divided by the number of shares issued to the Non-Funding Shareholder, rather than the price per share specified in the original Valid Funding Notice).

 

(d)

The above will apply with appropriate modifications to the extent that only a portion of the Valid Funding Notice related to subscription for JV Shares (such that only the relevant portion of the overall amount of the Shortfall Capital was contributed under clause 8.9(e)(2)).

 

8.11	Guarantees

 

(a)

Neither Shareholder (and neither Shareholder’s Parent or Affiliates) will have any obligation to guarantee or provide similar surety or credit support in relation to the obligations of any JV Group Member.

 

(b)

If any such guarantees are agreed to be given, they will (unless otherwise agreed between all Shareholders in writing) be on a several basis pro rata to the Shareholders’ respective Shareholding Percentages, with appropriate cross indemnity arrangements.

 

8.12	Related party dealings

Each Shareholder must ensure that any arrangement or transaction between the JV Group and that Shareholder or an Affiliate of that Shareholder is:

 

(a)

on commercial terms and on an arm’s length basis; and

 

(b)

terms that are otherwise not unfairly prejudicial to the interests of the JV Group or either Shareholder (or its Affiliates).

 

9	Branding and IP

 

 

 

9.1

Branding

 

(a)

The Shareholders must procure that (unless the Shareholders agree otherwise):

 

(1)

the Companies trade as ‘USG-Boral Building Products’; and

 

(2)

that the name ‘USG-Boral Building Products’ or another trade mark forming part of the JV IP appears on all products manufactured or sold by the JV Group.

 

(b)

The brand and trademark strategy (and any changes to the brand and trademark strategy) developed and implemented by the JV Group is a Major Fundamental Matter.

 

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		24    General

 

(c)

Each JV Group Member will ensure that all products manufactured or sold by the JV Group in the Territory will be sold on the condition that such products are for sale and use only within the Territory and shall not to be sold, offered for sale, supplied for or used outside the Territory.

 

9.2	IP Licence Agreements

The parties acknowledge that certain Related Corporations of the Shareholders have entered into the IP Licence Agreements licensing certain Intellectual Property Rights to the Companies and establishing other obligations and rights among the parties to those agreements in relation to the relevant Intellectual Property Rights.

 

9.3	Protection of JV IP

 

(a)

Schedule 8 sets out:

 

(1)

in Part 1, the initial list of High Risk Jurisdictions for the purposes of clause 14.2(a) of each of the Boral Umbrella Intellectual Property Licence Agreements and the USG Umbrella Intellectual Property Licence Agreements as at the date of this agreement; and

 

(2)

in Part 2, the initial High Risk Procedures for the purposes of clause 14.2(b) of each of the Boral Umbrella Intellectual Property Licence Agreements and the USG Umbrella Intellectual Property Licence Agreements as at the date of this agreement.

 

(b)

Jurisdictions may be added to or removed from the list of High Risk Jurisdictions in Part 1 of Schedule 8 at any time and from time to time by Unanimous Resolution of Shareholders (as Minor Fundamental Matter).

 

(c)

The High Risk Procedures in Part 2 of Schedule 8 may be modified at any time and from time to time by Unanimous Resolution of Shareholders (as Minor Fundamental Matter).

 

10	Exclusivity and commitment

 

 

 

10.1

Parties

This clause 10 applies only as between USG Guarantor and Boral Guarantor. It is not intended that any other person named as a party to this agreement will have any rights, powers, obligations or liabilities under this clause 10.

 

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10.2	Definitions

The meanings of the terms used in this clause 10 are set out below:

 

 

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		24    General

 

 

10.3	Restrictive covenants

 

(a)

Subject to the third party arrangements in place at the date of this agreement that are listed in Schedule 10, USG Guarantor and Boral Guarantor agree that the JV Group will have the exclusive right (as against USG Guarantor, Boral Guarantor and their respective Restricted Persons) to conduct the Business in the Territory, on the terms set out in this clause 10.

 

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		24    General

 

(b)

Boral Guarantor must not, and must procure that its Restricted Persons will not, during any period which is a Restricted Period in respect of Boral, and USG Guarantor must not, and must procure that its Restricted Persons do not, during any period which is a Restricted Period in respect of USG, do, or attempt to do any of the following within any Restricted Territory without the prior written consent of both USG Guarantor and Boral Guarantor:

 

(1)

No competing business: directly or indirectly carry on or otherwise have an interest in, or be engaged in any business that is the same as or substantially similar to or that competes with a Restricted Business (including by manufacturing, distributing, supplying or otherwise providing the same or similar products or services) (except, for the avoidance of doubt, to the extent contemplated by Schedule 10);

 

(2)

No poaching customers: solicit or persuade any person who the relevant Guarantor (or its relevant Restricted Person, as the case maybe) is aware is a customer or client of a Restricted Business in the Territory, to cease doing such business with any JV Group Member or reduce the amount of business that the customer or client would normally do or otherwise have done with any JV Group Member in the Territory; or

 

(3)

No poaching staff: solicit, entice or persuade, or attempt to solicit, entice or persuade any person who the relevant Guarantor (or its relevant Restricted Person, as the case may be) is aware is a Restricted Employee to terminate his or her employment with his or her employer, whether or not that person would breach his or her service agreement. For clarity, this will not prohibit a person from employing a Restricted Employee who responds to a bona fide public advertisement concerning a vacant position that is not targeted specifically at that Restricted Employee.

 

(c)

USG Guarantor and Boral Guarantor must, to the extent within their respective power, procure that the Companies do not, and that the Companies procure that their respective Restricted Persons will not, during the JV Restricted Period do, or attempt to do any of the following:

 

(1)

No competing business: directly or indirectly carry on or otherwise have an interest in, or be engaged in any business that is the same or is substantially similar to or that competes with a JV Restricted Business (including by manufacturing, distributing, supplying or otherwise providing the same or similar products or services as the Business but outside the Territory);

 

(2)

No poaching customers: solicit or persuade any person who the Companies (or their relevant Restricted Persons, as the case may be) are aware is a customer or client of a Parent Business outside the Territory, to cease doing business with any Boral Group Member or USG Group Member or reduce the amount of business that the customer or client would normally do or otherwise have done with any Boral Group Member or USG Group Member outside the Territory; or

 

(3)

No poaching staff: solicit, entice or persuade, or attempt to solicit, entice or persuade any person who the Companies (or their relevant Restricted Person, as the case may be) is aware is a Restricted Employee to terminate his or her employment with his or her employer, whether or not that person would breach his or her service agreement. For clarity, this will not prohibit a person from employing a Restricted Employee who responds to a bona fide public advertisement concerning a vacant position that is not targeted specifically at that Restricted Employee.

 

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(d)

USG Guarantor and Boral Guarantor agree that for these purposes the Restricted Periods are intended to operate separately in relation to each Restricted Territory, and the JV Restricted Periods are intended to operate separately in relation to each JV Restricted Territory, so that if any Restricted Period is held to be unenforceable in relation to activities in any particular Restricted Territory, or any JV Restricted Period is held to be unenforceable in relation to activities in any particular JV Restricted Territory, it is not intended to affect the application of the Restricted Period in relation to any other Restricted Territory or the JV Restricted Period in relation to any other JV Restricted Territory (as applicable).

 

10.4	Permitted Activities

 

(a)

Clauses 10.3(a) and 10.3(b)(1) do not prevent Boral Guarantor or USG Guarantor or any of their Restricted Persons from:

 

(1)

owning or controlling directly or indirectly shares or other securities of a company or trust listed on a recognised stock exchange, provided the aggregate holding owned or controlled by the relevant Guarantor and its Restricted Persons does not exceed 5% of any class of the relevant entity’s securities;

 

(2)

acquiring by purchase, merger or otherwise, an interest in a business which is engaged or involved in a Restricted Business in a Restricted Territory, provided that:

 

•

the Restricted Business in the Restricted Territory accounts for no more than 25% of revenue of the acquired business; and

 

•

the Restricted Business in the Restricted Territory is closed or (subject to clause 10.4(b)) divested to the JV Group or a bona fide third party within 6 months after the acquisition.

 

(b)

If clause 10.4(a)(2) applies and the relevant Guarantor (Restricted Business Seller) (or any of its Restricted Persons, as the case may be) proposes to divest, rather than close, the relevant Restricted Business (for the purposes of this clause 10.4(b), the Sale Business) then the relevant Restricted Business Seller must not (or if applicable must ensure that the relevant Restricted Person or Persons do not) divest or commit to divest the Sale Business unless:

 

(1)

the other Guarantor and the Companies have been given a notice in writing (a Divestment Notice) specifying:

 

•

the details of the Sale Business;

 

•

the price at which the Restricted Business Seller (or relevant Restricted Persons as the case may be) is prepared to sell the Sale Business; and

 

•

the other terms and conditions on which the Restricted Business Seller (or relevant Restricted Persons as the case may be) is prepared to sell the Sale Business;

 

(2)

the Companies have been given at least 60 days (the Assessment Period) to conduct due diligence investigations and make an offer to buy the Sale Business on the terms set out in the Divestment Notice; and

 

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		24    General

 

(3)

clause 10.4(c) has been complied with.

 

(c)

If:

 

(1)

the Companies (or any JV Group Member nominated by the Companies) make an offer to buy the Sale Business on the terms set out in the Divestment Notice within the Assessment Period, the Restricted Business Seller must ensure that the offer is accepted and the sale completed in accordance with the relevant terms; or

 

(2)

the Companies do not make such an offer within the Assessment Period, the Sale Business can be sold to a bona fide third party within the time period required by clause 10.4(a)(2) provided the price and other terms are not materially more favourable to the third party buyer than the terms set out in the Divestment Notice.

 

10.5	No restriction on USG or Boral conducting businesses outside the Territory

For the avoidance of doubt nothing in clause 10.3(a) or 10.3(b)(1) is intended to prevent (and does not prevent) either Guarantor or any of their respective Affiliates acquiring, carrying on or otherwise having an interest in, or being engaged in, any business whatsoever at any time in any geographical area outside the Territory, including any business that is the same as or substantially similar to (or that competes with) a Restricted Business.

 

10.6	Severability

 

(a)

The parties agree that the restrictions set out in this clause 10 are to be regarded as separate, distinct and severable so that the unenforceability of any restriction will in no way affect the enforceability of any other restriction.

 

(b)

If any of the restrictions in this clause 10 is void as unreasonable for the protection of the interests of any party and would be valid, if:

 

(1)

part of the wording was deleted;

 

(2)

the period of the restriction was reduced;

 

(3)

the area of the restriction was reduced;

 

(4)

the scope of the definition of ‘Restricted Business’ or the ‘JV Restricted Business’ (as relevant) was narrowed; or

 

(5)

any combination of the foregoing,

the restraint will apply with the minimum modifications necessary to make it effective.

 

10.7	Acknowledgment

Each party acknowledges:

 

(a)

that all the restrictions in this clause 10 are reasonable in the circumstances and necessary to protect the goodwill of the Business (including the businesses of the various members of the JV Group) or the Parent Businesses, as the case may be, and are intended to operate to the maximum possible extent; and

 

(b)

the remedy of damages may be inadequate to protect the interests of a Guarantor (or other members of its Group) in the event of the breach or threatened breach of an applicable provision of this clause 10 and that a Guarantor (or other member of its Group) is entitled to seek and obtain injunctive relief, or any other relief.

 

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Part C – Shareholder exit and default provisions

 

 

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11	Disposal - general

 

 

11.1	Standstill Period

 

(a)

For the purposes of this agreement the Standstill Period means the period commencing on the date of this agreement and ending on the 7th anniversary of the date of this agreement.

 

(b)

Subject to clauses 11.1(c) and 11.1(d), a Shareholder must not Dispose of any JV Shares during the Standstill Period except with the prior written consent of the other Shareholder.

 

(c)

a Shareholder may Dispose of all of its JV Shares (being, for the avoidance of doubt, all of its JVC 1 Shares and all of its JVC 2 Shares) at any time during the Standstill Period:

 

(1)

if an Event of Default occurs in respect of the other Shareholder and the Disposal occurs under clauses 14 and 15; or

 

(2)

if the Disposal occurs in accordance with clause 7.

 

(d)

JV Shares may be Disposed of during the Standstill Period in accordance with clause 11.4.

 

(e)

During the Standstill Period a Shareholder must not, and must ensure that its Parent, Affiliates, agents and adviser do not:

 

(1)

offer to Dispose of any JV Shares (or, for the avoidance of doubt any JVC 1 Shares separately to any JVC 2 Shares and vice versa);

 

(2)

solicit, invite, encourage or initiate offers or proposals in relation to the Disposal of any JV Shares (or, for the avoidance of doubt any JVC 1 Shares separately to any JVC 2 Shares and vice versa); or

 

(3)

participate in or continue any negotiations or discussions with respect to any Disposal or potential Disposal of any JV Shares (or, for the avoidance of doubt any JVC 1 Shares separately to any JVC 2 Shares and vice versa).

except with the prior written consent of the other Shareholder or to the extent necessary to enable the Shareholder to comply with any provision of this agreement.

 

11.2	Disposals following Standstill Period

Following expiry of the Standstill Period, a Shareholder must not Dispose of its JV Shares unless (without limiting clause 18.6(b)):

 

(a)

the other Shareholder gives its prior written consent;

 

(b)

the Shareholder complies with clause12;

 

(c)

an Event of Default occurs in respect of the other Shareholder and the Disposal occurs under clauses 14 and 15; or

 

(d)

the Disposal occurs in accordance with clause 7,

provided that JV Shares may at any time be Disposed of during the Standstill Period in accordance with clause 11.4.

 

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11.3	Security Interests over JV Shares

Despite anything in clauses 11.1 and 11.2 a Shareholder must not at any time create a Security Interest over a JV Share unless the other Shareholder gives its prior written consent.

 

11.4	Intra-group transfers

 

(a)

JV Shares may be Disposed of (and JVC 1 Shares and JVC 2 Shares may separately be Disposed of) at any time if each of the following is satisfied (and the remainder of this clause 11.4 is complied with):

 

(1)

the Disposal consists of:

 

(A)

in relation to JVC 1 Shares held by Boral Holder 1, the sale, transfer or assignment of its entire interest in all (but not some only) of its JVC 1 Shares to a transferee that is a Wholly Owned Subsidiary of Boral Guarantor;

 

(B)

in relation to JVC 2 Shares held by Boral Holder 2, the sale, transfer or assignment of its entire interest in all (but not some only) of its JVC 2 Shares to a transferee that is a Wholly Owned Subsidiary of Boral Guarantor; or

 

(C)

in relation to JV Shares held by USG, the sale, transfer or assignment of its entire interest in all (but not some only) of its JVC 1 Shares or its JVC 2 Shares (or both) to a transferee that is a Wholly Owned Subsidiary of USG Guarantor; and

 

(2)

the Disposal has been approved by the other Shareholder (being USG where clause 11.4(a)(1)(A) or 11.4(a)(1)(B) applies and Boral where clause 11.4(a)(1)(C) applies), such approval not to be unreasonably withheld or delayed where:

 

(A)

the Disposal does not adversely affect such other Shareholder’s risk or cost profile in relation to its interest in the JV Group (having regard in particular to the identity of the acquiring entity and its jurisdiction of incorporation); and

 

(B)

in the case of a proposed sale, transfer or assignment of USG’s JVC 1 Shares only (or its JVC 2 Shares only) this agreement has been amended to the extent necessary to reflect that two separate USG entities will be holding JV Shares (with approval of either party to such amendments not to be unreasonably withheld or delayed).

 

(b)

Before any sale, transfer or assignment is effected in reliance on clause 11.4(a) the existing holder of the relevant JV Shares (the Transferor) must ensure that the proposed buyer, transferee or assignee transferee (the Transferee) enters into an Adherence Deed agreeing to be bound by this agreement as if named as a party (and specifically as if named as ‘Boral Holder 1’, ‘Boral Holder 2’ or ‘USG’, as the case may be).

 

(c)

Subject always to clause 11.4(d) a Transferee under this clause 11.4 may itself subsequently sell, transfer or assign its JV Shares (or its JVC 1 Shares or JVC 2 Shares) under this clause to a Wholly Owned Subsidiary of its Parent, provided the requirements of clauses 11.4(a) and 11.4(b)are satisfied.

 

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(d)

A Transferee that becomes a holder of JV Shares under any application of this clause 11.4 must transfer, and the relevant guarantor party (being Boral Guarantor where that is the Transferor’s Parent and USG Guarantor where that is the Transferor’s Parent) must ensure that it sells, transfers or assigns all its JV Shares to another Wholly Owned Subsidiary of the Transferor’s Parent before that Shareholder ceases to be a Wholly Owned Subsidiary of the Transferor’s Parent, and for the avoidance of doubt clause 11.4(b) will apply in relation to any such transfer.

 

(e)

Nothing in this clause 11.4 is intended to affect clause 13.1(c) or clause 18.6(b) as it applies to all other Disposals of JV Shares.

 

11.5	No avoidance

 

(a)

It is the intention of the parties that no Shareholder Disposes of or otherwise parts with or deals in any JV Shares or the economic benefits deriving from any JV Shares, other than under clauses 7, 11.4 or 14 of this agreement (and clause 15 to the extent invoked by those clauses), unless clause 12 has been complied with in respect of those JV Shares.

 

(b)

Without limiting clause 11.5(a), unless the Shareholders agree otherwise in writing, a Shareholder may not (nor may it attempt to) Dispose of all or any of its JV Shares except by transfer of the entire legal and beneficial interest in those JV Shares free from all Security Interests.

 

(c)

No party may employ any device or technique or participate in any transaction designed to circumvent this intention.

 

11.6	Adherence Deed and registration of transfers

 

(a)

JVC 1 will not recognise and must not register any transfer of JVC 1 Shares (or any interest in or right to acquire JVC 1 Shares) and JVC 2 will not recognise and must not register any transfer of JVC 2 Shares (or any interest in or right to acquire JVC 2 Shares) if this agreement has not been complied with and any purported Disposal in breach of this agreement is void.

 

(b)

JVC 1 must register a transfer of JVC 1 Shares and JVC 2 must register a transfer of JVC 2 Shares made in compliance with this agreement.

 

(c)

A Shareholder must not Dispose of JV Shares or any interest in or right to acquire JV Shares, JVC 1 must not issue JVC 1 Shares, and JVC 2 must not issue JVC 2 Shares, to any person who is not a Shareholder at the time at which they acquire or are issued JV Shares, unless that person agrees in writing to become a party to, and to be bound by the provisions of this agreement by signing an Adherence Deed prior to or contemporaneously with such transfer or issue.

 

(d)

Subject to clause 11.6(e), each party to this agreement from time to time agrees that any person who executes an Adherence Deed is bound by the terms of this agreement, and has rights under this agreement, with effect from the date of the relevant transfer or issue of the JV Shares as if that person were named as a party to this agreement in the relevant capacity, in accordance with the terms of the Adherence Deed.

 

(e)

A person who executes an Adherence Deed as the result of a transfer of JV Shares to that person will not be liable under this Agreement for any breach of the transferor that occurred before the date of the transfer, or for any liability of the transferor under this agreement that was incurred before the date of the transfer.

 

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		24    General

 

(f)

Without limiting the foregoing, to the extent JV Shares (or any other equity securities) are:

 

(1)

issued to anyone other than an existing Shareholder; or

 

(2)

transferred to anyone other than an existing Shareholder;

in circumstances where there are additional shareholders to Boral and USG in the Companies, the parties must, before that issue or transfer, ensure that the relevant third party enters into an Adherence Deed agreeing to be bound by this agreement amended as reasonably required by the Shareholders and agreed with the third party.

 

12	Pre-emptive provisions

 

 

12.1

General

After expiry of the Standstill Period a Shareholder may transfer its entire interest in all (but not some only) of its JV Shares if it complies with this clause 12.

 

12.2	Notice of Sale

 

(a)

A Shareholder (the Seller) wishing to transfer its JV Shares under this clause 12 must give a written notice to that effect to the other Shareholder (the Recipient). The notice (a Notice of Sale) must specify:

 

(1)

the JV Shares that the Seller proposes to sell, which must be all of the JV Shares held by the Seller (the Sale Shares);

 

(2)

the minimum sale price for the Sale Shares (as a parcel), which must be a cash price expressed in US dollars (the Floor Price);

 

(3)

the proposed terms on which the Seller proposes to sell the Sale Shares (the Sale Terms), in the form of draft sale documentation; and

 

(4)

a statement to the effect that the Recipient may offer to purchase all (but not part of) the Sale Shares at the Floor Price and on the Sale Terms if the Recipient complies with clause 12.3.

 

(b)

A Notice of Sale is irrevocable (except with the written consent of the Recipient).

 

(c)

The Sale Terms specified in a Notice of Sale must not include:

 

(1)

conditions to the sale or obligations on the purchaser which by their nature are not capable of being complied with by or in relation to the Recipient, its Parent or Affiliates. For the avoidance of doubt this does not apply to any obligation to pay the purchase price; or

 

(2)

conditions to the sale which the satisfaction or non-satisfaction of which are within the sole control of the Seller or its Parent or Affiliates.

 

12.3	Offer to purchase Sale Shares

The Recipient may offer to purchase the Sale Shares at the price and on the terms set out in the Notice of Sale by giving notice to that effect (an Offer Notice) to the Seller within 45 days after receipt of the Notice of Sale (the Response Period).

 

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		24    General

 

12.4	Recipient does not offer to purchase

 

(a)

If the Recipient does not give an Offer Notice to the Seller within the Response Period, or advises the Seller in writing within the Response Period that it does not wish to give an Offer Notice, the Seller may sell all (but not some only) of the Sale Shares to a third party buyer (Third Party Buyer) provided that:

 

(1)

the aggregate sale price for the Sale Shares is a cash price in US dollars that is equal to or higher than the Floor Price;

 

(2)

the terms of the sale are not materially more favourable to the Third Party Buyer than the Sale Terms and are such as to permit compliance with clause 12.4(e)(2) should that clause apply;

 

(3)

the sale is to a single Third Party Buyer who is a bona fide third party buyer (not being a Parent or Affiliate of the Seller) on an arm’s length basis;

 

(4)

the Seller enters into a legally binding agreement with the Third Party Buyer in relation to the sale within 90 days from expiry of the Response Period;

 

(5)

the sale of the Sale Shares to the Third Party Buyer is completed as soon as reasonably practicable and in any event within 12 months from expiry of the Response Period; and

 

(6)

the Seller has complied with clause 12.4(c) and clause 12.9(b).

 

(b)

The Seller must ensure that there is no agreement, arrangement or understanding between the Seller and the Third Party Buyer (or, in each case, their respective Parents or Affiliates) conditional on, or in connection with, the sale by the Seller of the Sale Shares such as to confer a benefit or advantage or potential benefit or advantage on the Third Party Buyer (or a Related Corporation or Affiliate) which was not capable of being extended to the Recipient under the terms contained in the Notice of Sale.

 

(c)

The Seller must not sell the Sale Shares to a Third Party Buyer pursuant to this clause 12.4 unless:

 

(1)

the Seller has first given notice in writing to the Recipient (a Sale Terms Notice), specifying:

 

•

the identity of the Third Party Buyer;

 

•

the aggregate sale price for which the Third Party Buyer is willing to purchase all of the Sale Shares;

 

•

the terms on which the Third Party Buyer is willing to purchase the Sale Shares, in the form of draft sale documentation;

 

•

written confirmation that the proposed transaction complies with clauses 12.4(a)(1) to 12.4(a)(3) and clause 12.4(b); and

 

•

a statement to the effect that the Recipient has the right (Tag Right) to require that its JV Shares are included as part of any sale transaction if the Recipient complies with clause 12.9(a); and

 

(2)

the Recipient has not exercised its Tag Right within 21 days after receipt of the Sale Terms Notice (or has given confirmation in writing to the Seller within that period that it does not propose to exercise its Tag Right).

 

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		24    General

 

(d)

The Seller must give to the Recipient a copy of any agreement with the Third Party Buyer relating to the Sale Shares within 7 days after execution of the agreement.

 

(e)

(Without limiting the remedies of any party if any purported sale to a Third Party Buyer does not comply with this clause 12.4) if:

 

(1)

the Seller does not enter into a legally binding agreement with the Third Party Buyer in relation to the sale within the period required by clause 12.4(a)(4); or

 

(2)

the sale of the Sale Shares to the Third Party Buyer is not completed within the period required by clause 12.4(a)(5),

the Seller must not sell the Sale Shares to the Third Party Buyer (or any other person) without complying again with this clause 12 (unless the sale occurs pursuant to any other provision of this agreement which permits the relevant Disposal).

 

12.5	Recipient offers to purchase

If the Recipient gives an Offer Notice to the Seller within the Response Period:

 

(a)

the Seller may accept the Recipient’s offer by notice in writing to the Recipient to that effect within 15 days after the date of receipt of the Offer Notice (the Acceptance Period), in which case clause 12.6 will apply; or

 

(b)

the Seller may reject the Recipient’s offer by notice in writing to the Recipient to that effect within the Acceptance Period, in which case clause 12.7 will apply,

provided that if the Seller does not give notice accepting or rejecting within the Acceptance Period it will be taken to have rejected the Recipient’s offer and clause 12.7 will apply accordingly.

 

12.6	Offer is accepted

If this clause 12.6 applies, the Seller must sell to the Recipient all of its JV Shares and the Recipient must purchase those JV Shares at the Floor Price and on and subject to the Sale Terms, and clause 15 will apply.

 

12.7	Offer is rejected

 

(a)

If this clause 12.7 applies the Seller may for a period of up to 180 days from expiry of the Acceptance Period (the Marketing Period) market the Sale Shares to potential third party buyers on terms that would enable the Seller to give a Second Notice of Sale in relation to the transaction which complies with the requirements of clause 12.7(b).

 

(b)

If the Seller finds a third party buyer (Third Party Buyer) to which it wishes to sell all the Sale Shares the Seller may at any time (but only once) during the Marketing Period give a further notice of sale (Second Notice of Sale) to the Recipient, specifying:

 

(1)

the identity of the Third Party Buyer;

 

(2)

the aggregate sale price for which the Third Party Buyer is willing to purchase all of the Sale Shares, which must be a cash price expressed in US dollars which is higher than the Floor Price;

 

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		24    General

 

(3)

the terms on which the Third Party Buyer is willing to purchase the Sale Shares, in the form of draft sale documentation, which must not be materially more favourable to the Third Party Buyer than the Sale Terms, must comply with clause 12.2(c) and must be such as to permit compliance with clause 12.8(d)(2) should that clause apply;

 

(4)

written confirmation that the Third Party Buyer is a single buyer who is a bona fide prospective purchaser (not being a Parent or Affiliate of the Seller) on an arm’s length basis who has made an offer to purchase the Sale Shares at the price and on the terms set out in the Second Notice of Sale;

 

(5)

written confirmation that that there is no agreement, arrangement or understanding between the Seller and the Third Party Buyer (or, in each case, their respective Parents or Affiliates) conditional on, or in connection with, the sale by the Seller of the Sale Shares such as to confer a benefit or advantage or potential benefit or advantage on the Third Party Buyer (or its Related Body Corporate or Affiliate) which is not capable of being extended to the Recipient under the terms contained in the Second Notice of Sale; and

 

(6)

a statement to the effect that the Recipient:

 

•

has an option (Last Right) to purchase all the Sale Shares at the cash price and on the terms set out in the Second Notice of Sale if the Recipient complies with clause 12.8; and

 

•

has the right (Tag Right) to require that its JV Shares are included as part of any sale transaction if the Recipient complies with clause 12.9(a).

 

(c)

A Second Notice of Sale is irrevocable (except with the written consent of the Recipient).

 

(d)

If on expiry of the Marketing Period the Seller has not given a Second Notice of Sale in relation to the Sale Shares which complies with the requirements of clause 12.7(b), the Seller must cease its marketing of the Sale Shares and must not sell the Sale Shares without complying again with this clause 12 unless:

 

(1)

the sale occurs pursuant to any other provision of this agreement which permits the relevant Disposal; or

 

(2)

the Recipient remains willing to purchase the Sale Shares in accordance with its offer given during the Acceptance Period pursuant to clause 12.5(a) (in which case the Seller may accept that offer and clause 12.6 will apply).

 

12.8	Last Right

 

(a)

If a Second Notice of Sale is given by the Seller, the Recipient (may exercise its Last Right to purchase the Sale Shares at the cash price and on the terms set out in the Second Notice of Sale by giving notice to the Seller to that effect within 21 days after the date of receipt of the Second Notice of Sale (the Decision Period), with such notice to confirm that the Recipient does not exercise its Tag Right. For the avoidance of doubt, the Recipient cannot exercise its Last Right if it has already exercised its Tag Right.

 

(b)

If the Recipient exercises its Last Right within the Decision Period in accordance with clause 12.8(a), the Seller must sell to the Recipient all of its JV Shares and the Recipient must purchase those JV Shares at the price and on and subject to the terms set out in the Second Notice of Sale and clause 15 will apply

 

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		24    General

 

(c)

If the Recipient does not exercises its Last Right or its Tag Right within the Decision Period then the Seller may sell all (but not some only) of the Sale Shares to the Third Party Buyer identified in the Second Notice of Sale provided that:

 

(1)

the sale is at the price and on the terms specified in the Second Notice of Sale;

 

(2)

the Seller enters into a legally binding agreement with the Third Party Buyer in relation to the sale within 60 days from expiry of the Decision Period);

 

(3)

the sale of the Sale Shares to the Third Party Buyer is completed as soon as practicable and in any event within 12 months from expiry of the Decision Period.

 

(d)

In the event:

 

(1)

the Seller does not enter into a legally binding agreement with the Third Party Buyer in relation to the sale within the periods required by clause 12.8(c)(2); or

 

(2)

the sale of the Sale Shares to the Third Party Buyer is not completed within the periods required by clause 12.8(c)(3),

the Seller must not sell the Sale Shares to the Third Party Buyer (or any other person) without complying again with this clause 12 (unless the sale occurs pursuant to any other provision of this agreement which permits the relevant Disposal).

 

12.9

Tag Right

 

(a)

The Recipient may exercise its Tag Right in relation to a proposed sale of Sale Shares by the Seller:

 

(1)

if a Sale Terms Notice is given by the Seller under clause 12.4(c), by giving notice to the Seller to that effect within 21 days after receipt of the Sale Terms Notice; or

 

(2)

if a Second Notice of Sale is given by the Seller under clause 12.7(b), by giving notice to the Seller to that effect within the Decision Period referred to in clause 12.8(a) with such notice to confirm that it does not exercise its Last Right (for the avoidance of doubt, the Recipient cannot exercise its Tag Right if it has already exercised its Last Right).

 

(b)

If the Recipient exercises its Tag Right in relation to a proposed sale in accordance with clause 12.9(a), then the Seller may only proceed to sell the Sale Shares to the relevant Third Party Buyer if the Third Party Buyer concurrently purchases all of the Recipient’s JV Shares at the price and on the terms set out in the Sale Terms Notice or Second Sale Notice (as the case may be), but modified as necessary to:

 

(1)

ensure that the rights and liabilities of the Seller and the Recipient are several and pro rata; and

 

(2)

to reflect the identity of the Recipient as the seller of the Recipient’s JV Shares,

or on such other terms as the Recipient, Seller and Third Party Buyer may agree.

 

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		24    General

 

(c)

If the Recipient exercises its Tag Right but the sale of the Sale Shares and the Recipient’s JV Shares to the relevant Third Party Buyer has not been completed on terms which comply with this clause 12.9 within 12 months after the date of exercise of the Tag Right, the Seller must not sell the Sale Shares to the Third Party Buyer (or any other person) without complying again with this clause 12 (unless the sale occurs pursuant to any other provision of this agreement which permits the relevant Disposal).

 

12.10

Time periods

The Shareholders may by agreement in writing extend (or shorten) any time period applicable under this clause 12 in relation to any given transaction.

 

13	Events of Default

 

 

 

13.1	Events of Default

An Event of Default occurs in relation to a Shareholder if:

 

(a)

material breach: (without limiting clause 13.1(e) or 13.1(f) where that is the relevant breach) the Shareholder (or its Parent) commits a material breach of a material term of this agreement and that breach:

 

(1)

is incapable of remedy; or

 

(2)

(without limiting clause 13.1(b)) if capable of remedy, is not remedied to the satisfaction of the other Shareholder (acting reasonably and in good faith):

 

•

within 60 days; or

 

•

if the breach occurs within 6 months after the Shareholder or its Parent has materially breached the same term, within 30 days,

after being notified in writing by the other Shareholder of the breach;

 

(b)

repeated breach: the Shareholder (or its Parent):

 

(1)

commits a material breach of a material term of this agreement in circumstances where:

 

•

the breach is capable of remedy; but

 

•

the Shareholder or its Parent has materially breached the same term on two or more occasions during the preceding 12 months; or

 

(2)

materially and persistently breaches any term of this agreement, whether or not that breach is capable of remedy;

 

(c)

Change of Control: a Change of Control occurs in respect of the Shareholder or of any Relevant Affiliate of the Shareholder;

 

(d)

Insolvency Event: an Insolvency Event occurs in relation to the Shareholder or any Relevant Affiliate of the Shareholder;

 

(e)

Disposal of Shares: the Shareholder Disposes, or purports to Dispose, of any JV Shares in breach of either Constitution or this agreement;

 

(f)

Shareholder loans: clause 17 is breached in relation to the Shareholder;

 

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		24    General

 

(g)

failure to attend Board meetings: in circumstances where both Shareholders are Major Shareholders, a failure by all directors appointed by the Shareholder to the Board of a Company to attend a duly convened meeting of the Board of that Company 3 or more times in succession, where the subject matter of any resolution to be considered at the meeting needs to be passed by Super Resolution of the Board. For the avoidance of doubt for these purposes an adjournment of a Board meeting will not constitute a separate Board meeting in its own right;

 

(h)

failure to attend Shareholder meetings: a failure by the Shareholder or proxy of the Shareholder to attend a duly convened meeting of Shareholders 3 or more times in succession, where the subject matter of any resolution to be considered at the meeting needs to be passed by the Unanimous Resolution of Shareholders and the vote of the relevant Shareholder is required in order for such a resolution to be passed. For the avoidance of doubt for these purposes an adjournment of a Shareholder meeting will not constitute a separate Shareholder meeting in its own right;

 

(i)

breach by JV Group: a JV Group Member has breached in any material respect clause 1.3(d)(1) of this agreement, clause 8.2(e)) of this agreement, or any IP Licence Agreement and each of the following applies:

 

(1)

the breach has been notified to the Shareholder (for the avoidance of doubt the Defaulting Shareholder in this context for the purposes of clause 14) in writing by the Companies or by the other Shareholder, specifying that the notice is for the purposes of this clause 13.1(i) (JV Breach Notice);

 

(2)

the relevant breach is reasonably capable of reversal or remedy;

 

(3)

the other Shareholder (for the avoidance of doubt the Non-Defaulting Shareholder in this context for the purpose of clause 14) has proposed to the Defaulting Shareholder in writing and in good faith a reasonable and proportionate course of action to reverse or remedy the breach notified in the JV Breach Notice, and either:

 

(A)

the Defaulting Shareholder has not within 30 days after the date of the JV Breach Notice itself proposed in good faith an alternative reasonable and proportionate cause of action to reverse or remedy the breach; or

 

(B)

the Defaulting Shareholder or the directors it has appointed to either Board is or are wilfully preventing the passing of a Board (or, if a Fundamental Matter is involved, Shareholder) resolution in relation to the Non-Defaulting Shareholder’s proposal in circumstances where there is no bona fide dispute between the directors (or Shareholders, as applicable) as to the appropriate action to be taken in relation to the breach; and

 

(4)

the relevant breach has not otherwise been reversed or remedied to the reasonable satisfaction of both Shareholders.

 

13.2	Change of Control

 

(a)

For the purposes of clause 13.1(c) a Change of Control occurs in respect of USG or a Relevant Affiliate of USG:

 

(1)

in the case of USG, if it ceases to be a Wholly Owned Subsidiary of USG Guarantor;

 

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		24    General

 

(2)

in the case of any other Relevant Affiliate of USG (other than USG Guarantor itself), if the relevant entity ceases to be a Wholly Owned Subsidiary of USG Guarantor; or

 

(3)

in the case of USG Guarantor, if a person (or group of associated persons) who did not previously do so acquires or holds directly or indirectly:

 

(A)

securities in USG Guarantor conferring 50% or more of the voting or economic interests in USG Guarantor; or

 

(B)

the power to control the appointment or dismissal of the majority of USG Guarantor’s directors,

or any person enters into any agreement or arrangement performance of which would result in such an acquisition or holding.

 

(b)

For the purposes of clause 13.1(c) a Change of Control occurs in respect of Boral or a Relevant Affiliate of Boral:

 

(1)

in the case of Boral, if it ceases to be a Wholly Owned Subsidiary of Boral Guarantor;

 

(2)

in the case of any other Relevant Affiliate of Boral (other than Boral Guarantor itself), if the relevant entity ceases to be a Wholly Owned Subsidiary of Boral Guarantor; or

 

(3)

in the case of Boral Guarantor, if a person (or group of associated persons) who did not previously do so acquires or holds directly or indirectly:

 

(A)

securities in Boral Guarantor conferring 50% or more of the voting or economic interests in Boral Guarantor; or

 

(B)

the power to control the appointment or dismissal of the majority of Boral Guarantor’s directors,

or any person enters into any agreement or arrangement performance of which would result in such an acquisition or holding.

 

(c)

For the avoidance of doubt, a Change of Control in respect of either USG or a Relevant Affiliate of USG, or Boral or a Relevant Affiliate of Boral (Controlled Person), does not include:

 

(1)

a reconstruction of the Controlled Person or an amalgamation of the Controlled Person with another entity where the entity involved or arising following the reconstruction or amalgamation and which holds the shares in the Controlled Person is beneficially owned solely by an entity of which the Controlled Person was a Wholly Owned Subsidiary prior to the reconstruction or amalgamation or any Wholly Owned Subsidiary of such entity; or

 

(2)

any transfer of shares in the Controlled Person to any Wholly Owned Related Corporation, provided that such Wholly Owned Related Corporation remains a part of the relevant Shareholder Group of the Controlled Person after the date of the transfer.

 

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13.3	Insolvency Events

For the purposes of clause 13.1(d) an Insolvency Event occurs in relation to a person or entity (the Relevant Person) if any of the following occurs:

 

(a)

controller: any of the following occur:

 

(1)

a controller (as defined in section 9 of the Corporations Act) is appointed; or

 

(2)

a resolution to appoint controller is passed,

to the Relevant Person or over an asset of the Relevant Person unless, in the case of an appointment, the other Shareholder is satisfied that the appointment of the controller is capable of being set aside, and it is set aside, within 7 days of the appointment being made;

 

(b)

winding up: any of the following occur:

 

(1)

an order is made; or

 

(2)

a resolution is passed,

for the winding up of the Relevant Person;

 

(c)

administration: any of the following occur:

 

(1)

an administrator is appointed to the Relevant Person; or

 

(2)

a resolution to appoint an administrator to the Relevant Person is passed;

 

(d)

deregistration: the Relevant Person is deregistered;

 

(e)

suspends payment: the Relevant Person suspends payment of its debts generally;

 

(f)

insolvency: the Relevant Person is:

 

(1)

unable to pay its debts when they are due; or

 

(2)

presumed to be insolvent under the Corporations Act;

 

(g)

arrangements: the Relevant Person enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, any of its creditors;

 

(h)

ceasing business: the Relevant Person ceases to carry on business; or

 

(i)

analogous event: anything analogous to or having a substantially similar effect to any of the events specified in clauses 13.3(a) to 13.3(h) happens in relation to the Relevant Person under the laws of any jurisdiction.

 

13.4

Notice

If either of the Companies becomes aware of an Event of Default occurring in respect of a Shareholder, the relevant Company will promptly notify the other parties.

 

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		24    General

 

14	Effect of Events of Default

 

 

 

14.1	Call Option

 

(a)

If an Event of Default occurs in respect of a Shareholder (the Defaulting Shareholder), then immediately on the occurrence of an Event of Default the other Shareholder (the Non-Defaulting Shareholder) has an option to purchase all (but not part only) of the Defaulting Shareholder’s JV Shares at the Fair Market Value of those JV Shares in accordance with this clause 14 (a Call Option).

 

(b)

A Call Option and the right to exercise it is without prejudice to any other right that the Non-Defaulting Shareholder may have in respect of the relevant Event of Default.

 

(c)

The Non-Defaulting Shareholder’s Call Option in respect of any Event of Default will lapse if:

 

(1)

the Non-Defaulting Shareholder does not give a Default Notice in respect of the Event of Default within the period required by clause 14.2(a); or

 

(2)

the Call Option is not exercised within the period specified in clause 14.5(a).

However this does not affect any additional Call Options becoming exercisable in the event of any further Events of Default.

 

14.2	Assessment of Fair Market Value – initial phase

 

(a)

At any time within 90 days of the Non-Defaulting Shareholder becoming aware of the occurrence of the Event of Default, the Non-Defaulting Shareholder may serve a written notice on the Defaulting Shareholder setting out the details of the Event of Default and stating that it requires that the Fair Market Value of the Defaulting Shareholder’s JV Shares be determined (a Default Notice).

 

(b)

If the Non-Defaulting Shareholder gives a Default Notice within the period required by clause 14.2(a) then the Shareholders must enter into good faith negotiations and use all reasonable endeavours to agree the Fair Market Value of the Defaulting Shareholder’s JV Shares.

 

(c)

If the Shareholders cannot agree the Fair Market Value of the Defaulting Shareholder’s JV Shares within 28 days after delivery of the Default Notice then the matter must be referred (via two separate referrals) to two firms or persons (being the Initial Experts for the purposes of the remaining provisions of this clause 14.2) for assessment. The Initial Experts will be selected as follows:

 

(1)

each Shareholder must nominate one firm from the list below:

 

(A)

PwC (or its successor entity);

 

(B)

Deloitte (or its successor entity);

 

(C)

KPMG (or its successor entity);

 

(D)

Ernst & Young (or its successor entity); and

 

(2)

if two Initial Experts are not appointed as a result of nominations under clause 14.2(c)(1) (whether because either or both Shareholders refuses to nominate, because both Shareholders nominate the same firm or because either or both firms nominated refuse the

 

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		24    General

 

appointment) then unless the Shareholders agree on the firms to be appointed firms must be drawn by lot by the Chair of the Boards (in the presence of a representative of USG and Boral) from the list in clause 14.2(c)(1) or where that does not result in two Initial Experts being appointed (because an insufficient number of firms have accepted appointments), from the following additional list until two Initial Experts are able to be appointed:

 

(A)

Houlihan Lokey (or its successor entity);

 

(B)

Duff & Phelps (or its successor entity);

 

(C)

Grant Samuel (or its successor entity);

 

(D)

BDO (or its successor entity);

 

(E)

Grant Thornton (or its successor entity);

 

(F)

PKF (or its successor entity),

provided always that in any given case the Shareholders may by agreement in writing appoint any two firms or persons they consider to be appropriate (whether or not appearing on any list above) as the Initial Experts for the purposes of this clause 14.2.

 

(d)

The Shareholders must jointly instruct each of the Initial Experts to:

 

(1)

accept submissions from each Shareholder made within 14 days after the date of appointment of the relevant Initial Expert (provided that if a Shareholder does not provide a submission within the time period, the Expert may proceed in accordance with this clause);

 

(2)

assess the Fair Market Value of the Defaulting Shareholder’s JV Shares in accordance with the valuation procedures set out in Schedule 7; and

 

(3)

issue to each Shareholder and the Companies a certificate (the Initial Expert’s Certificate) specifying the Fair Market Value of the JV Shares as assessed by the relevant Initial Expert,

within the shortest practicable time.

 

(e)

The Shareholders agree that:

 

(1)

in assessing the Fair Market Value of the relevant JV Shares, the Initial Experts act as an expert not an arbitrator;

 

(2)

the Defaulting Shareholder must bear the costs of both Initial Experts.

 

(f)

The parties must promptly provide all information and assistance reasonably requested by any Initial Expert.

 

14.3	Binding determination of Fair Market Value

 

(a)

(Unless the Fair Market Value of the Defaulting Shareholder’s JV Shares has already been agreed between the Shareholders at any stage), once both Initial Experts have issued their Initial Expert’s Certificates the Shareholders must again enter into good faith negotiations and use all reasonable endeavours to agree the Fair Market Value of the Defaulting Shareholder’s JV Shares.

 

(b)

If the Shareholders still cannot agree the Fair Market Value of the Defaulting Shareholder’s JV Shares within 14 days after both Initial Expert’s Certificates have been issued the matter must be referred to:

 

(1)

a suitably qualified and independent person that is agreed between the Shareholders for the purpose; or

 

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(2)

failing agreement within the 14 day period referred to above, a firm drawn by lot by the Chair of the Boards (in the presence of a representative of USG and Boral) from the list in clause 14.2(c)(1) (ignoring any distinction between the groups of firms set out in that clause but excluding any firm appointed as an Initial Expert),

such person or firm being the Determining Expert for the purposes of the remaining provisions of this clause 14.3.

 

(c)

The Shareholders must instruct the Determining Expert to do each of the following within the shortest practicable time:

 

(1)

accept submissions from each Shareholder made within 14 days after the date of appointment of the Determining Expert (provided that if a Shareholder does not provide a submission within the time period, the Determining Expert may proceed in accordance with this clause);

 

(2)

determine the Fair Market Value of the Defaulting Shareholder’s JV Shares in accordance with the valuation procedures set out in Schedule 7, but subject to the requirements that Fair Market Value determined by the Determining Expert:

 

(A)

must not exceed the higher of the two Fair Market Values determined in the Initial Expert’s Certificates; and

 

(B)

must not be less than the lower of the two Fair Market Values determined in the Initial Expert’s Certificates (unless the only reason the valuation is lower is because of the operation of paragraph (b)(2) of Schedule 7 in relation to any Dividend paid or declared after the date of the relevant Initial Expert’s Certificate); and

 

(3)

issue to each Shareholder and the Companies a certificate (the Final Certificate) specifying the Fair Market Value of the JV Shares as determined by the Determining Expert.

 

(d)

The Shareholders agree that:

 

(1)

in determining the Fair Market Value of the relevant JV Shares, the Determining Expert acts as an expert not an arbitrator;

 

(2)

the decision of the Determining Expert, as detailed in the Final Certificate, is final and binding on each of them in the absence of fraud or manifest error; and

 

(3)

the Defaulting Shareholder must bear the costs of the Determining Expert.

 

(e)

The parties must promptly provide all information and assistance reasonably requested by the Determining Expert.

 

14.4	Failure of expert process

 

(a)

If clause 14.2 requires the assessment of the Fair Market Value of the Defaulting Shareholder’s JV Shares to be referred to Initial Experts but Initial Expert’s Certificates are not issued by two Initial Experts because:

 

(1)

USG and Boral do not agree on the identity of the Initial Experts and none (or not enough) of the firms selected as potential Initial Experts under the process in clause 14.2(c) agrees to the accept the appointment;

 

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(2)

two Initial Experts are appointed but either or both Initial Experts subsequently withdraw or advise that they are for any reason unable to make an assessment; or

 

(3)

for any other reason,

and USG and Boral cannot within a further 14 days agree on the appointment of alternative Initial Experts, then the expert determination process will be taken to have failed and any party may commence proceedings in a court of competent jurisdiction in relation to the determination of the Fair Market Value of the Defaulting Shareholder’s JV Shares.

 

(b)

If two Initial Expert’s Certificates are issued and clause 14.3 requires the determination of the Fair Market Value of the Defaulting Shareholder’s JV Shares to be referred to a Determining Expert but no expert determination on the matter is possible because:

 

(1)

USG and Boral do not agree on the identity of the Determining Expert and none of the firms selected as potential Determining Experts agree to accept the appointment;

 

(2)

a Determining Expert is appointed but the Determining Expert subsequently withdraws or advises that it is for any reason unable to make a determination; or

 

(3)

for any other reason,

the Fair Market Value of the Defaulting Shareholder’s JV Shares will (in the absence of manifest error in either such certificate, in which case any party may commence proceedings in a court of competent jurisdiction in relation to the determination) be deemed to be the mid point between the Fair Market Values assessed for those JV Shares in the two Initial Expert’s Certificates.

 

14.5	Exercise of options

 

(a)

The Non-Defaulting Shareholder may exercise its Call Option within 28 days after:

 

(1)

receipt of the Final Certificate (or if clause 14.4 applies the date the Fair Market Value Fair of the Defaulting Shareholder’s JV Shares is definitively determined by a court of competent jurisdiction or deemed determined by application of clause 14.4(b)); or

 

(2)

if earlier, the date the Shareholders agree in writing the Fair Market Value of the Defaulting Shareholder’s JV Shares for the purposes of the Call Option,

by giving written notice to that effect to the Defaulting Shareholder.

 

(b)

If the Non-Defaulting Shareholder gives a Default Notice within the period required by clause 14.2(a), the Companies must provide to the Non-Defaulting Shareholder all information and assistance reasonably required by the Non-Defaulting Shareholder in order for it to consider and, if it so determines, exercise its Call Option (including all information and assistance reasonably required for due diligence investigations on the JV Group) and the Non-Defaulting Shareholder may despite clause 18 disclose any such information on a confidential basis to its Parent and Related Corporations and their respective advisers and financiers.

 

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(c)

If the Non-Defaulting Shareholder exercises the Call Option within the time period required by clause 14.5(a), the Defaulting Shareholder must sell to the Non-Defaulting Shareholder all of its JV Shares and the Non-Defaulting Shareholder must purchase those JV Shares at their Fair Market Value (as agreed, determined or deemed determined in accordance with this clause 14), and clause 15 will apply.

 

14.6	Time periods

The Shareholders may by agreement in writing extend (or shorten) any time period applicable under this clause 14 in relation to any given Event of Default.

 

15	Completion of transfer of JV Shares between Shareholders

 

 

 

15.1	Definitions

The meanings of the terms used in this clause 15 are set out below.

 

 

15.2	Contract for sale and purchase

Where any clause of this agreement provides that this clause 15 is to apply to the sale and purchase of a Shareholder’s JV Shares, then with effect from the applicable Relevant Date the Shareholders will be bound by a contract for the sale and purchase of the relevant JV Shares on and subject to:

 

(a)

the terms set out in this clause 15; and

 

(b)

where the Transferor Shareholder is a Seller, the relevant Sale Terms or the terms set out in the relevant Second Notice of Sale (as applicable),

but so that to the extent of any inconsistency the provisions of this clause 15 will prevail.

 

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15.3

Transfer

 

(a)

The Transferor Shareholder will be deemed to warrant in favour of the Transferee Shareholder (at the Relevant Date and at closing of the transfer of the JV Shares pursuant to this clause 15) that it is:

 

(1)

the sole legal and beneficial owner of its JV Shares;

 

(2)

has full right, power and authority to sell and transfer its JV Shares to the Transferee Shareholder;

 

(3)

that the Transferor Shareholder transfers to the Transferee Shareholder free clear and unencumbered legal title to its JV Shares free of any Security Interests and free of any third party rights,

and for the avoidance of doubt where the Transferor Shareholder is a Seller will also give any other warranties required under the relevant Sale Terms or the terms set out in the relevant Second Notice of Sale (as applicable).

 

(b)

Within 7 days of the Relevant Date the Transferee Shareholder may notify the Transferor Shareholder in writing of all Consents it requires in order to proceed with the purchase of the JV Shares (failing which the Transferee Shareholder will be taken to have notified that no Consents are required).

 

(c)

Each party must use its best endeavours to ensure that each Consent notified under clause 15.3(b) is obtained as expeditiously as possible including, but not limited to, providing all reasonable assistance to the other parties as is necessary to obtain each Consent.

 

(d)

The purchase price payable for the Transferor Shareholder’s JV Shares (as specified in this Agreement) is payable in Immediately Available Funds on the closing of the purchase and sale, which must take place on the day which is 14 days after the later of:

 

(1)

the Relevant Date; and

 

(2)

the date on which all Consents (if any) notified under clause 15.3(b) have been received by the Transferee Shareholder (or waived at the Transferee Shareholder’s absolute discretion),

or, where the Transferor Shareholder is a Seller, if later the date required under the relevant Sale Terms or the terms set out in the relevant Second Notice of Sale (as applicable).

 

(e)

At the closing of the purchase and sale, the Transferor Shareholder must deliver to the Transferee Shareholder:

 

(1)

the share certificates and an executed transfer for the Transferor Shareholder’s JV Shares;

 

(2)

a written resignation from each director of the Companies appointed by the Transferor Shareholder;

 

(3)

a duly executed notice irrevocably appointing the Transferee Shareholder as the Transferor Shareholder’s proxy in respect of the Transferee Shareholder’s JV Shares until such time as those shares are registered in the name of the Transferee Shareholder,

and where the Transferor Shareholder is a Seller, the parties must for the avoidance of doubt each do the things required to be done at closing under the relevant Sale Terms or the terms set out in the relevant Second Notice of Sale (as applicable).

 

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(f)

The Transferee Shareholder indemnifies the Transferor Shareholder against any claim, action, damage, loss, liability, cost, charge, expense, outgoing, or payment that the Transferor Shareholder pays, suffers or incurs or is liable for in respect of any action taken by the Transferee Shareholder as the Transferor Shareholder’s proxy under clause 15.3(e)(3).

 

(g)

If each Consent (if any) notified under clause 15.3(b) is not satisfied or waived by the Transferee Shareholder within 12 months after the date of service of the notice under clause 15.3(b) then (without prejudice to any other right that a Shareholder may have under this agreement and without prejudice to any termination rights under any terms applicable under clause 15.2(b)):

 

(1)

either Shareholder may by notice to the other terminate the contract of sale and purchase constituted under this agreement on the Relevant Date; and

 

(2)

upon such termination the Transferor Shareholder will have no further obligation to sell its JV Shares to the Transferee Shareholder under this clause 15.

 

15.4	Transferee Shareholder to assume guarantees

 

(a)

Each of the Shareholders must take all reasonable steps to ensure that, effective from closing of the sale and purchase of JV Shares pursuant to this clause 15, the Transferor Shareholder and its Parent or Related Corporations are released from any actual, contingent or accrued liabilities under any Support Commitments. For these purposes ‘reasonable steps’ includes the Transferee Shareholder or a Related Corporation providing the relevant third party beneficiary with a replacement guarantee or other arrangement (as the case may be) on terms the same or substantially the same as the terms of the existing Support Commitment.

 

(b)

To the extent the Transferor Shareholder or any Related Corporation has not been released from a Support Commitment by closing of the relevant sale, and to the extent the parties have not already implemented appropriate cross indemnities under clause 8.10, the Transferee Shareholder must indemnify the relevant entity in respect of any loss, liability or expense that it pays, suffers, incurs or is liable for under or in relation to that Support Commitment after closing. The Transferor Shareholder holds the benefit of this indemnity on trust for its Related Corporations.

 

16	Termination

 

 

 

16.1

Term

 

(a)

The Shareholders may terminate this agreement at any time by agreement in writing.

 

(b)

Subject to clause 16.2, this agreement:

 

(1)

ceases to apply to a Shareholder that has transferred all its JV Shares as permitted by this agreement; and

 

(2)

terminates when any Shareholder holds all the issued JV Shares.

 

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16.2

Survival

The occurrence of any event specified in clause 16.1 will not affect:

 

(a)

any accrued rights and obligations of the parties in respect of any breach of this agreement prior to the occurrence of that event; or

 

(b)

any provision of this agreement which is expressed to come into effect on, or survive, the occurrence of that event.

 

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Part D – Miscellaneous

 

 

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17	Operations of Shareholders

 

 

17.1	Definitions

The meanings of the terms used in this clause 17 are set out below:

 

(a)

Boral Intercompany Loan means any loan provided at any time by any Boral Group Member (as lender) to Boral Holder 1 or to Boral Holder 2 ;and

 

(b)

USG Intercompany Loan means any loan provided at any time by any USG Group Member (as lender) to USG.

 

17.2	Restrictions on USG

Notwithstanding the terms of any USG Intercompany Loan:

 

(a)

USG Guarantor must ensure that no USG Group Member demands repayment of; and

 

(b)

USG must not (and USG Guarantor must ensure that USG does not) repay or prepay,

any amount of principal, interest or other amount under or in connection with any USG Intercompany Loan if such repayment or prepayment would or would be reasonably likely to result in an Insolvency Event occurring with respect to USG.

 

17.3	Restrictions on Boral

Notwithstanding the terms of any Boral Intercompany Loan:

 

(a)

Boral Guarantor must ensure that no Boral Group Member demands repayment of; and

 

(b)

a Boral Holder must not (and USG Guarantor must ensure that each Boral Holder does not) repay or prepay,

any amount of principal, interest or other amount under or in connection with any Boral Intercompany Loan if such repayment or prepayment would or would be reasonably likely to result in an Insolvency Event occurring with respect to Boral Holder 1 or Boral Holder 2.

 

18	Confidentiality and publicity

 

 

18.1	Definition

For the purposes of this clause 18:

 

(a)

JV Information means any information relating to the Business or the operations, assets or affairs of any JV Group Member; or

 

(b)

Shareholder Information means, in relation to a Shareholder:

 

(1)

any information relating to the business, assets or affairs of that Shareholder or any Parent or Affiliate of that Shareholder (to the extent disclosed in the course of the transactions contemplated by this agreement or the Transaction Documents); and

 

(2)

the terms of this agreement or any transactions contemplated by it.

 

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18.2	Confidentiality

 

(a)

Subject to clause 18.3, each Shareholder (and its respective Parent) must not, and must (in addition to the confidentiality obligations contained in any other Transaction Document) ensure that its directors, officers, employees, agents, representatives and Affiliates do not:

 

(1)

disclose any JV Information or any Shareholder Information in relation to the other Shareholder;

 

(2)

use any JV Information, or Shareholder Information in relation to the other Shareholder, in any manner which may cause or is calculated to cause loss to any JV Group Member or any other party; or

 

(3)

make any public announcement or issue any press release regarding this agreement or the transactions contemplated by it (unless the form of the announcement or release has been agreed by both Shareholders).

 

(b)

Subject to clause 18.3, each Company must not, and must ensure (in addition to the confidentiality obligations contained in any other Transaction Document) that its officers (other than directors nominated by individual Shareholders), employees, agents, representatives and Subsidiaries do not:

 

(1)

disclose any JV Information, except to the extent the disclosure has been approved by the Boards or the Shareholders in accordance with this Agreement;

 

(2)

disclose any Shareholder Information in relation to either Shareholder;

 

(3)

use any Shareholder Information in relation to either Shareholder, in any manner which may cause or is calculated to cause loss to any JV Group Member or any other party; or

 

(4)

make any public announcement or issue any press release regarding this agreement or the transactions contemplated by it (unless the form of the announcement or release has been agreed by both Shareholders).

 

18.3	Permitted disclosure

Subject to law (including legal restrictions on the use and disclosure of personal information) a party may disclose, and may permit its Parent, directors, officers, employees, agents, representatives and Affiliates to disclose, any JV Information or Shareholder Information in relation to a Shareholder:

 

(a)

with the prior written consent of:

 

(1)

in the case of JV Information, the Boards or the Shareholders in accordance with this Agreement; or

 

(2)

in the case of Shareholder Information, the relevant Shareholder; or

 

(b)

if it is required to do so:

 

(1)

by law or a Government Agency; or

 

(2)

(in the case of a Parent only) by any regulatory authority or recognised stock exchange on which its shares or other securities are listed in compliance with the disclosure requirements of the relevant authority or stock exchange,

 

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		24    General

 

provided, in respect to Shareholder Information, that the recipient has to the extent possible having regard to the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure.

 

(c)

to the party’s directors, officers, employees, bankers, auditors, professional advisers, ratings agencies or to the party’s Related Corporations (or their respective directors, officers, employees, bankers, auditors, rating agencies or professional advisers) provided that the recipient must keep the relevant information confidential and so that the party making the disclosure will be responsible for any breach of confidentiality by the relevant recipient, or any use of JV Information or Shareholder Information by the recipient that is incompatible with clause 18.2(a)(2) (or clause 18.2(b)(3) as applicable), unless the recipient has entered into an agreement or deed of the nature contemplated by clause 18.4;

 

(d)

if the relevant information is in the public domain at the time of the relevant disclosure, other than by a breach of this clause 18;

 

(e)

(in the case of a Shareholder only and subject to clause 18.4) the information is disclosed to a bona fide prospective purchaser of the party’s JV Shares in circumstances where clause 12 permits the recipient to market its JV Shares to the relevant person provided, in respect to Shareholder Information, sufficient advanced notice is given to permit the relevant Shareholder to object to any disclosure it considers to be in breach of this agreement;

 

(f)

the disclosure is made to an Initial Expert or Determining Expert as contemplated by clause 14.2 or 14.3 provided such disclosure is on a confidential basis;

 

(g)

(in the case of a Shareholder only) the disclosure is made in order for the party to seek a Consent for a transaction contemplated by this agreement, and (to the extent possible) is made on a confidential basis;

 

(h)

to a Sale Agent on a confidential basis in the course of an appointment under clause 7.4 (and subject to clause 7.4(d)(6) the Sale Agent will for the avoidance of doubt be permitted to disclose JV Information and Shareholder Information to bona fide prospective purchasers of the JV Enterprise in the course of discharging the Sale Agent’s role) provided, in respect to Shareholder Information, sufficient advanced notice is given to permit the relevant Shareholder to object to any disclosure it considers to be in breach of this agreement; or

 

(i)

the disclosure is expressly permitted or required under any provision of this agreement or any Transaction Document.

 

18.4	Disclosure to a prospective purchaser

Any party that makes or permits a disclosure of JV Information or Shareholder Information in relation to any Shareholder under clause 18.3(e) must ensure that the prospective purchaser first enters into a deed poll in favour of the parties whereby it agrees to comply with provisions substantially similar to those contained in this clause 18.

 

18.5	USG Confidential Information

 

(a)

Notwithstanding anything to the foregoing, no Boral Group Member or JV Group Member is permitted to use or disclose any Confidential Information (as that term is defined in the USG Umbrella Intellectual Property Agreements) other than in accordance with those documents (or the associated specific confidentiality agreements pursuant to those documents), provided that:

 

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(1)

Boral may disclose Confidential Information to a bona fide prospective purchaser of Boral’s JV Shares in circumstances where clause 12 permits Boral to market its JV Shares to the relevant person;

 

(2)

Boral may disclose Confidential Information to an Initial Expert or Determining Expert as contemplated by clause 14.2 or 14.3; and

 

(3)

a Sale Agent may disclose Confidential Information to bona fide prospective buyers of the JV Enterprise in the course of an appointment under clause 7.4;

but in each case:

 

(4)

provided that in no event shall Boral or a Sale Agent disclose Trade Secrets (as that term is defined in the USG Umbrella Intellectual Property Agreement) owned by one or more USG Group Members or one or more JV Group Members without written permission in advance from the USG Group Member or USG Group Members (at their discretion), and such permission if granted may include limitations on the recipients of such disclosures, limitation on their use, and safe guards to protect the Trade Secrets taking into account their value and sensitivity to a USG Group Member or the JV Group;

 

(5)

only to the extent that the disclosure is reasonably required to assist the relevant recipient to meaningfully evaluate the value of the JV Group and the relevant JV Shares (or the JV Enterprise, as the case may be);

 

(6)

only to the extent that the disclosure does not and is not likely to jeopardise any Trade Secrets or proprietary information of any USG Group Member or JV Group Member, or pending applications for, patents, trademark registrations, copyright registrations or domain name registrations being prosecuted by any USG Group Member or JV Group Member; and

 

(7)

(without limiting clause 7.4(d)(6) in the case of a Sale Agent) only to the extent that Boral or the Sale Agent, as the case may be, has first ensured that the relevant recipient has entered into a deed poll in favour of USG, USG Guarantor and the relevant USG Group Member whereby it agrees not to use or disclose such Confidential Information (other than for the express purpose of evaluating the value of the JV Group and the relevant JV Shares (or the JV Enterprise, as the case may be) and where applicable making a decision whether or not to acquire them and on what terms); and

 

(8)

Boral or the Sale Agent (as applicable) provides USG and the relevant USG Group Member with a copy of the proposed Confidential Information that is to be disclosed 3 Business Days prior to disclosure (in order that USG and the USG Group Member may reasonably object to any disclosure it considers to be in breach of this clause),

and the Companies may disclose Confidential Information to Boral or a Sale Agent to the extent Boral or the Sale Agent is entitled to disclose such Confidential Information as set out above.

 

(b)

Boral Guarantor and Boral indemnify any affected USG Group Member for any loss suffered by the USG Group Member a result of any disclosure of Confidential Information in accordance with this clause 18.5.

 

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18.6	Boral Confidential Information

 

(a)

Notwithstanding anything to the foregoing, no USG Group Member or JV Group Member is permitted to use or disclose any Confidential Information (as that term is defined in the Boral Umbrella Intellectual Property Agreements) other than in accordance with that document or the associated specific confidentiality agreements, provided that:

 

(1)

USG may disclose Confidential Information to a bona fide prospective purchaser of USG’s JV Shares in circumstances where clause 12 permits USG to market its JV Shares to the relevant person; and

 

(2)

USG may disclose Confidential Information to an Initial Expert or Determining Expert as contemplated by clause 14.2 or 14.3; and

 

(3)

a Sale Agent may disclose Confidential Information to bona fide prospective buyers of the JV Enterprise in the course of an appointment under clause 7.4;

but in each case:

 

(4)

provided that in no event shall USG or a Sale Agent disclose Trade Secrets (as that term is defined in the Boral Umbrella Intellectual Property Agreement) owned by one or more Boral Group Members or one or more JV Group Members without written permission in advance from the Boral Group Member (at its discretion), and such permission if granted may include limitations on the recipients of such disclosures, limitation on their use, and safe guards to protect the trade secrets taking into account their value and sensitivity to the Boral Group Member;

 

(5)

only to the extent that the disclosure is reasonably required to assist the relevant recipient to meaningfully evaluate the value of the JV Group and the relevant JV Shares (or the JV Enterprise, as the case may be);

 

(6)

only to the extent that the disclosure does not and is not likely to jeopardise any trade secrets or proprietary information of any Boral Group Member or JV Group Member, or pending applications for, patents, trademark registrations, copyright registrations or domain name registrations being prosecuted by any Boral Group Member or JV Group Member; and

 

(7)

(without limiting clause 7.4(d)(6) in the case of a Sale Agent) only to the extent that USG or the Sale Agent, as the case may be, has first ensured that the relevant recipient has entered into a deed poll in favour of Boral and Boral Guarantor (and any other relevant Boral Group Member) whereby it agrees not to use or disclose such Confidential Information (other than for the express purpose of evaluating the value of the JV Group and the relevant JV Shares (or the JV Enterprise, as the case may be) and where applicable making a decision whether or not to acquire them and on what terms); and

 

(8)

USG or the Sale Agent (as applicable) provides Boral (and any other relevant Boral Group Member) with a copy of the proposed Confidential Information that is to be disclosed 3 Business Days prior to disclosure (in order that Boral may reasonably object to any disclosure it considers to be in breach of this clause),

 

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and the Companies may disclose Confidential Information to USG or a Sale Agent to the extent USG or the Sale Agent is entitled to disclose such Confidential Information as set out above.

 

(b)

USG Guarantor and USG indemnify any affected Boral Group Member for any loss suffered by the Boral Group Member a result of any disclosure of Confidential Information in accordance with this clause 18.6.

 

18.7	Third Party IP

 

(a)

The parties acknowledge that the JV Group holds know how and other proprietary information licensed to it by third parties (Third Party IP) and that the JV Group is subject to obligations in relation to the disclosure and use of the Third Party IP. Accordingly, to the extent the Third Party IP is identified to Boral and USG in writing by the JV Group:

 

(1)

USG Guarantor and USG undertake to put appropriate processes in place to preserve the confidentiality of the Third Party IP that the JV Group has identified to them in writing and that Third Party IP is not communicated by any USG officers or employees (or otherwise) to any USG Group Member, and is not used by any USG Group Member to violate the legal rights of the relevant third party or third parties; and

 

(2)

Boral Guarantor and Boral undertake to put appropriate processes in place to preserve the confidentiality of the Third Party IP that the JV Group has identified to them in writing and that Third Party IP is not communicated by any Boral officers or employees (or otherwise) to any Boral Group Member, and is not used by any Boral Group Member to violate the legal rights of the relevant third party or third parties.

 

(b)

Clause 18.7(a) does not apply to a party to the extent:

 

(1)

the relevant Third Party IP is in the public domain; or

 

(2)

that party reasonably forms the view that the Third Party IP is infringing it or its Affiliates’ Intellectual Property.

 

19

Stapling

 

 

 

19.1	JVC 1 Shares and JVC 2 Shares are Stapled

Each JV Share is made up of one JVC 1 Share and one JVC 2 Share that are Stapled to one another in accordance with this clause 19.

 

19.2	Restrictions on dealings in JVC 1 Shares

Without limiting any provision of this agreement restricting the Disposal of any JV Shares (but subject always to clause 11.4 and clause 19.5), JVC 1 must not (and the Shareholders must use all reasonable endeavours to ensure that JVC 1 does not):

 

(a)

issue a JVC 1 Share unless JVC 2 issues a JVC 2 Share to the same person at the same time and on terms that the JVC 1 Share is Stapled to the JVC 2 Share immediately on issue;

 

(b)

cancel (whether by buy-back, redemption or otherwise) a JVC 1 Share unless JVC 2 cancels the JVC 2 Share Stapled to that JVC 1 Share at the same time;

 

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(c)

make a call on, forfeit or accept the surrender of any partly-paid JVC 1 Share unless JVC 2 makes a call on, forfeits or accepts the surrender of the partly-paid JVC 2 Share Stapled to that JVC 1 Share at the same time;

 

(d)

convert JVC 1 Shares into a larger or smaller number of JVC 1 Shares unless JVC 2 converts the JVC 2 Shares Stapled to those JVC 1 Shares into the same larger or smaller number of JVC 2 Shares at the same time;

 

(e)

agree or offer to do any of the above, or invite a person to participate in any of the above transactions unless JVC 2 agrees, offers or invites a person, to participate in the corresponding transaction;

 

(f)

do any of the above in relation to any other type of equity security convertible into JVC 1 Shares, including for the avoidance of doubt, any options to subscribe for JVC 1 Shares, unless JVC 2 does the same time at the same time on the same terms (and on the basis that the resulting JVC 1 security is Stapled to the resulting JVC 2 security); or

 

(g)

vary the terms of any equity securities issued by JVC 1 unless JVC 2 makes the corresponding variation to the terms of the JVC 2 equity securities to which they are Stapled.

 

19.3	Restrictions on dealings in JVC 2 Shares

Clause 19.2 applies in relation to JVC 2 mutatis mutandis as if all reference in that clause to ‘JVC 1’ and ‘JVC 2’ were reversed and all references to a ‘JVC 1 Share’ and a ‘JVC 2 Share’ were reversed.

 

19.4

Transfers

Subject always to clause 11.4 and clause 19.5:

 

(a)

JVC 1 must not register any transfer of a JVC 1 Share unless JVC 2 registers the transfer of the JVC 2 Share Stapled to that JVC 1 Share to the same person at the same time; and

 

(b)

JVC 2 must not register any transfer of a JVC 2 Share unless JVC 1 registers the transfer of the JVC 1 Share Stapled to that JVC 2 Share to the same person at the same time.

 

19.5	Boral Holders – special provisions

For the purposes of clauses 19.2, 19.3 and 19.4 Boral Holder 1 and Boral Holder 2 are to be regarded as the same person, so that (without limitation):

 

(a)

an issue will satisfy clause 19.2(a) if an issue of a JVC 1 Share to Boral Holder 1 occurs concurrently with an issue of a JVC 2 Share to Boral Holder 2; and

 

(b)

a transfer will satisfy clause 19.4 if a transfer of a JVC 1 Share to Boral Holder 1 occurs concurrently with a transfer of a JVC 2 Share to Boral Holder 2.

 

19.6	Administrative matters

 

(a)

The Companies must:

 

(1)

maintain a register of holders of JV Shares and record all details of, and dealings in, JV Shares and the JVC 1 Shares and JVC 2 Shares comprising them in that register; and

 

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		24    General

 

(2)

ensure that the register of holders of JV Shares is entirely consistent with the members’ registers maintained by JVC 1 and JVC 2.

 

(b)

The Companies must issue joint certificates to each holder of JV Shares.

 

19.7	Allocation of subscription amounts

 

(a)

The Companies must allocate:

 

(1)

the subscription amount received on issue of JV Share between its JVC 1 Share component and JVC 2 Share component; and

 

(2)

the amount payable on cancellation (whether on repurchase, redemption, buy-back or otherwise) of any JV Share between its JVC 1 Share component and JVC 2 Share component,

on the basis of the relative fair values of those components as agreed by the Shareholders before the relevant issue or cancellation (or where applicable in accordance with any values specified in any Valid Funding Notice).

 

(b)

If a JV Share is not issued fully-paid, the Companies must allocate:

 

(1)

the unpaid amount;

 

(2)

any amount received on payment of a call on the JV Share; and

 

(3)

any amount received on sale of forfeited JV Shares,

between its JVC 1 Share component and JVC 2 component in the same proportions as they would allocate any subscription amount received on issue of that JV Share.

 

(c)

Clause 19.7(a) applies with appropriate modifications to any issue of equity securities by JVC 1 and JVC 2 other than JV Shares.

 

19.8

Saving

Nothing in this clause 19 is intended to exclude or limit the need to comply with the relevant provisions of this agreement or applicable law (including Shareholder or Board approval requirements) in relation to the issue or transfer of securities or any other relevant action.

 

20	Guarantor provisions

 

 

 

20.1	Boral guarantee

 

(a)

Boral Guarantor:

 

(1)

unconditionally and irrevocably guarantees to each other party on demand, the due and punctual performance of Boral’s obligations under this agreement; and

 

(2)

as a separate and additional liability, indemnifies each other party against all Loss, actions, proceedings and judgments of any nature, incurred by, brought, made or recovered against the party arising from any default or delay in the due and punctual performance of Boral’s obligations under this agreement.

 

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(b)

The liability of Boral Guarantor under this clause 20.1 is not affected by anything which, but for this clause 20.1, might operate to release or exonerate Boral Guarantor in whole or in part from its obligations including any of the following, whether with or without the consent of Boral Guarantor:

 

(1)

the grant to Boral, Boral Guarantor or any other person of any time, waiver or other indulgence, or the discharge or release of Boral, Boral Guarantor or any other person from any liability or obligation;

 

(2)

any transaction or arrangement that may take place between any party, any Related Corporation of a party, the Buyer Guarantor or any other person;

 

(3)

any other party exercising or refraining from exercising its rights under any security or any other rights, powers or remedies against Boral, Boral Guarantor or any other person;

 

(4)

the amendment, replacement, extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part and either with or without consideration, of any security now or in the future held by any party or any Related Corporation of a party from Boral, Boral Guarantor or any other person or by the taking of or failure to take any security;

 

(5)

the failure or omission or any delay by any party to give notice to Boral Guarantor of any default by Boral or any other person under this agreement; and

 

(6)

any legal limitation, disability, incapacity or other circumstances related to the Boral, Boral Guarantor or any other person.

 

(c)

This clause 20.1 is a principal obligation and is not to be treated as ancillary or collateral to any other right or obligation and extends to cover this agreement as amended, varied, supplemented, renewed or replaced.

 

(d)

This clause 20.1 is a continuing obligation of Boral Guarantor, and remains in full force and effect for so long as Boral has any liability or obligation to any other party under this agreement and until all of those liabilities or obligations have been fully discharged.

 

(e)

Boral Guarantor must make all payments which become due under this clause 20.1, free and clear and without deduction of all present and future withholdings (including taxes, duties, levies, imposts, deductions and charges of Australia or any other jurisdiction). If Boral is compelled by law to deduct any withholding, then, in addition to any payment under this clause 20.1, it must pay to the relevant beneficiary party such amount as is necessary to ensure that the net amount received by that party after withholding equals the amount the party would otherwise be entitled to if not for the withholding.

 

(f)

Boral Guarantor must pay all moneys that it becomes liable to pay under this clause 20.1 in the currency in which they are payable under this agreement and free of any commissions and expenses relating to foreign currency conversion or any other charges or expenses.

 

(g)

Boral Guarantor has no right to set off, deduct or withhold any moneys which it may be or become liable to pay under this clause 20.1 , against any moneys that any other party may be, or become, liable to pay to a Boral Group Member whether under this agreement or otherwise.

 

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20.2	USG guarantee

 

(a)

USG Guarantor:

 

(1)

unconditionally and irrevocably guarantees to each other party on demand, the due and punctual performance of USG’s obligations under this agreement; and

 

(2)

as a separate and additional liability, indemnifies each other party against all Loss, actions, proceedings and judgments of any nature, incurred by, brought, made or recovered against the party arising from any default or delay in the due and punctual performance of USG’s obligations under this agreement.

 

(b)

The liability of USG Guarantor under this clause 20.2 is not affected by anything which, but for this clause 20.2, might operate to release or exonerate USG Guarantor in whole or in part from its obligations including any of the following, whether with or without the consent of USG Guarantor:

 

(1)

the grant to USG, USG Guarantor or any other person of any time, waiver or other indulgence, or the discharge or release of USG, USG Guarantor or any other person from any liability or obligation;

 

(2)

any transaction or arrangement that may take place between any party, any Related Corporation of a party, the Buyer Guarantor or any other person;

 

(3)

any other party exercising or refraining from exercising its rights under any security or any other rights, powers or remedies against USG, USG Guarantor or any other person;

 

(4)

the amendment, replacement, extinguishment, unenforceability, failure, loss, release, discharge, abandonment or transfer either in whole or in part and either with or without consideration, of any security now or in the future held by any party or any Related Corporation of a party from USG, USG Guarantor or any other person or by the taking of or failure to take any security;

 

(5)

the failure or omission or any delay by any party to give notice to USG Guarantor of any default by USG or any other person under this agreement; and

 

(6)

any legal limitation, disability, incapacity or other circumstances related to the USG, USG Guarantor or any other person.

 

(c)

This clause 20.2 is a principal obligation and is not to be treated as ancillary or collateral to any other right or obligation and extends to cover this agreement as amended, varied, supplemented, renewed or replaced.

 

(d)

This clause 20.2 is a continuing obligation of USG Guarantor, and remains in full force and effect for so long as USG has any liability or obligation to any other party under this agreement and until all of those liabilities or obligations have been fully discharged.

 

(e)

USG Guarantor must make all payments which become due under this clause 20.2, free and clear and without deduction of all present and future withholdings (including taxes, duties, levies, imposts, deductions and charges of Australia or any other jurisdiction). If USG is compelled by law to deduct any withholding, then, in addition to any payment under this clause 20.2, it must pay to the relevant beneficiary party such amount as is necessary to ensure that the net amount received by that party after withholding equals the amount the party would otherwise be entitled to if not for the withholding.

 

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(f)

USG Guarantor must pay all moneys that it becomes liable to pay under this clause 20.2 in the currency in which they are payable under this agreement and free of any commissions and expenses relating to foreign currency conversion or any other charges or expenses.

 

(g)

USG Guarantor has no right to set off, deduct or withhold any moneys which it may be or become liable to pay under this clause 20.2, against any moneys that any other party may be, or become, liable to pay to a USG Group Member whether under this agreement or otherwise.

 

21	Representations and warranties

 

 

 

21.1	Warranties

 

(a)

Each party represents and warrants to each other party:

 

(1)

it is duly incorporated and validly existing under the laws of the place of its incorporation;

 

(2)

it has full corporate power to execute, deliver and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement;

 

(3)

the execution, delivery and performance of this agreement:

 

•

has been properly authorised by it; and

 

•

does not constitute a breach of any law or obligation, or cause or result in a default under any agreement or Security Interest by which it is bound and that would prevent it from entering into and performing its obligations under this agreement;

 

(4)

this agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;

 

(5)

there are no actions, claims, proceedings or investigations pending or to the best of its knowledge threatened against it or by it that may have a material adverse effect on its ability to perform its obligations under this agreement;

 

(b)

Each party will be deemed to represent and warrant the matters specified in clause 21.1(a) throughout the duration of this agreement.

 

(c)

Each representation and warranty in clause 21.1(a) is to be treated as a separate representation and warranty. The interpretation of any statement made may not be restricted by reference to or inference from any other statement.

 

21.2	Notification of breach

Each party undertakes to give written notice immediately to each other party of any matter or event coming to its attention that:

 

(a)

shows any of the representations and warranties given by it in this agreement to be or to have been untrue or misleading or breached; or

 

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		24    General

 

(b)

constitutes or is reasonably likely to constitute (with the passage of time, the giving of notice, the making of any determination hereunder or any combination thereof) an Event of Default.

 

22	Rights and obligations of Boral Holders

 

 

 

22.1	Joint and several parties

Subject to this clause 22, in this agreement a reference to the party ‘Boral’ is to be read as a reference to Boral Holder 1 and Boral Holder 2 jointly and severally so that:

 

(a)

all obligations and liabilities of, and all agreements, undertakings and acknowledgements by, Boral under this agreement are taken to be assumed and given by each of the Boral Holders, jointly and severally;

 

(b)

to the extent that an amount is payable by Boral under this agreement, that amount is payable by the Boral Holders jointly and severally;

 

(c)

a right or power conferred on Boral under this agreement may be exercised by either Boral Holder acting alone (and any such exercise will be taken to have been by, and will bind, both of them). Without limiting the foregoing, any consent, approval or exercise of discretion by either Boral Holder will constitute a consent, approval or exercise of discretion by both of them for the purposes of this agreement;

 

(d)

a notice given pursuant to clause 23 by either Boral Holder will be taken to be a notice given by, and will bind, both of them;

 

(e)

receipt by either Boral Holder of any payment, notice or other document that any other party has to pay or give Boral under this agreement operates to discharge that other party in relation to each Boral Holder (but for the avoidance of doubt in relation to any payment, only to the extent of the relevant amount paid);

 

(f)

a reference to an Affiliate or Related Corporation of Boral is a reference to an Affiliate or Related Corporation of either Boral Holder; and

 

(g)

all obligations or liabilities of other parties to Boral are owed to the Boral Holders jointly,

and any reference to a ‘Shareholder’ will where that Shareholder is Boral apply on the same basis.

 

22.2	Holdings to be aggregated

Boral’s JVC 1 Percentage, JVC 2 Percentage and Shareholding Percentage are for the avoidance of doubt to be determined using the aggregate number of JVC 1 Shares and JVC 2 Shares held by the Boral Holders.

 

22.3	Operation of pre-emptive provisions

 

(a)

If the Shareholder giving a Notice of Sale under clause 12 is Boral, that Notice of Sale must be in respect of all JVC 1 Shares and JVC 2 Shares held by both Boral Holders at the relevant time. The Boral Holders will be the Seller for the purposes of that clause (on the joint and several basis described in clause 23.1, but so that each will separately transfer the JVC 1 Shares or JVC 2 Shares of which it is the registered holder).

 

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		24    General

 

(b)

If the Shareholder receiving a Notice of Sale under clause 12 is Boral, the Boral Holders will be the Recipient for the purposes of that clause on the joint and several basis described in clause 22.1, but so that:

 

(1)

any sale of the relevant Seller’s JV Shares to the Recipient under any provision of clause 12 will (unless the Shareholders agree otherwise in writing) be on the basis that the Seller’s JVC 1 Shares will be transferred to Boral Holder 1 and the Seller’s JVC 2 Shares will be transferred to Boral Holder 2, and:

 

•

the relevant Sale Terms

 

•

(if applicable) the terms set out in any Second Notice of Sale,

will be taken to be modified to the extent to permit this to occur if the Recipient is the ultimate buyer of the Sale Shares; and

 

(2)

if the Boral Holders as Recipient exercise a Tag Right in relation to a proposed sale of the relevant Sale Shares, the modifications to the applicable sale terms under clause 12.9(b) will include such modifications as necessary to reflect that the Boral Holders have joint rights and liabilities but will transfer their JV Shares as two separate entities.

 

22.4	Operation of default provisions

 

(a)

An Event of Default is taken to have occurred in relation to Boral if an Event of Default occurs in relation to either or both of the Boral Holders.

 

(b)

If an Event of Default occurs in relation to Boral, the Defaulting Shareholder for the purposes of clause 14 will be the Boral Holders on the joint and several basis described in clause 22.1, so that:

 

(1)

at the closing of any sale resulting from the exercise of the Non-Defaulting Shareholder’s Call Option each Boral Holder will separately transfer the JVC 1 Shares or JVC 2 Shares of which it is the registered holder; and

 

(2)

the proxies contemplated by clause 15.3(b) will be given separately by each Boral Holder in respect of the JVC 1 Shares or JVC 2 Shares of which it is the registered holder,

and for the avoidance of doubt the Call Option of the Non-Defaulting Shareholder will apply in respect to the total number of JVC 1 Shares and JVC 2 Shares held by both Boral Holders.

 

(c)

If an Event of Default occurs in relation to USG, the Boral Holders will be the Non-Defaulting Shareholder for the purposes of any application of clause 14, on the joint and several basis described in clause 22.1 , but so that (unless the Shareholders agree otherwise in writing) at the closing of any sale resulting from the exercise of the Non-Defaulting Shareholder’s Call Option the Defaulting Shareholder’s JVC 1 Shares will be transferred to Boral Holder 1 and its JVC 2 Shares will be transferred to Boral Holder 2.

 

22.5	Operation of Deadlock provisions

 

(a)

If the Shareholder that exercises its Call Right pursuant to clause 7.5(c) is USG in circumstances where the relevant Best Offer contemplates the acquisition of all JV Shares (as opposed to the Business), the Boral Holders will be the selling parties for the purposes of that clause (on the joint and several basis described in clause 22.1) but so that each Boral Holder will agree to separately transfer all of the JVC 1 Shares or JVC 2 Shares of which it is the registered holder to USG.

 

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(b)

If the Shareholder that exercises the Call Right pursuant to clause 7.5(c) is Boral, the Boral Holders will be the Exercising Shareholder for the purposes of that clause (on the joint and several basis described in clause 22.1) and so that if the Best Offer contemplates the acquisition of JV Shares (as opposed to the Business), the terms of the Best Offer will be taken to be amended so that Boral Holder 1 will acquire the JVC 1 Shares it does not already own and Boral Holder 2 will acquire the JVC 2 Shares it does not already own.

 

22.6	Issues of securities

Unless the Shareholders agree otherwise in writing, to the extent this agreement entitles Boral to subscribe for additional JV Shares (or any other equity securities issued by the Companies in accordance with this agreement), then without limiting clause 22.1(b):

 

(a)

Boral Holder 1 must subscribe for any component of the entitlement comprising JVC 1 Shares (or other JVC 1 securities); and

 

(b)

Boral Holder 2 must subscribe for any component of the entitlement comprising JVC 2 Shares (or other JVC 2 securities).

 

22.7	Operation limited to this agreement

For the avoidance of doubt nothing in this clause 22 is intended to:

 

(a)

render Boral Holder 1 and Boral Holder 2 jointly and severally liable to any person in respect of any obligation or liability except as expressly set out in this agreement; or

 

(b)

limit the operation of clause 19 other than as expressly set out in that clause.

 

23

Notices

 

 

 

23.1	Form of Notice

A notice or other communication to a party under this agreement (Notice) must be:

 

(a)

in writing and in English and signed on behalf of the sending party; and

 

(b)

addressed to that party in accordance with the details nominated in Schedule 13 (or any alternative details nominated to the sending party by Notice).

 

23.2	How Notice must be given and when Notice is received

 

(a)

A Notice must be given by one of the methods set out in the table below.

 

(b)

A Notice is regarded as given and received at the time set out in the table below.

However, if this means the Notice would be regarded as given and received outside the period between 9.00am and 5.00pm (addressee’s time) on a Business Day (Business Hours Period), then the Notice will instead be regarded as given and received at the start of the following Business Hours Period.

 

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23.3	Notice must not be given by electronic communication

A Notice must not be given by electronic means of communication (other than email as permitted in clause 23.2).

 

24

General

 

 

24.1	Costs and expenses

 

(a)

Each of USG, USG Guarantor, Boral and Boral Guarantor must pay its own costs (including legal costs) and expenses in connection with the negotiation, preparation, execution and delivery of this agreement. Boral Guarantor must pay the costs (including legal costs) and expenses in connection with the negotiation, preparation, execution and delivery of this agreement that are incurred by either of the Companies (or their Subsidiaries or any other entity in which the Companies have an interest).

 

(b)

For the avoidance of doubt the JV Group is responsible for its own costs and expenses in respect of the performance of any JV Group Member’s obligations under this agreement (or any Transaction Document) moving forward other than the transaction costs contemplated above.

 

24.2	Entire agreement

This agreement (with the Constitutions) states all the express terms agreed by the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

 

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24.3	Assignment of rights

Except as expressly contemplated by any Adherence Deed rights arising out of or under this agreement are not assignable by a party without the prior written consent of the other parties except as expressly permitted by this agreement.

 

24.4	Governing law and jurisdiction

 

(a)

This agreement is governed by the laws in force in New South Wales.

 

(b)

Each party irrevocably submits to the (non-exclusive, as between the two) jurisdiction of:

 

(1)

courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them; and

 

(2)

courts exercising jurisdiction in Illinois, United States of America, and courts of appeal from them,

in relation to any proceedings arising out of or in connection with this agreement, and no party submits to the jurisdiction of any other courts in relation to any such proceedings.

 

24.5	Service of process

Without preventing any other mode of service, any document in an action (including without limitation, any writ of summons or other originating process or any third or other party notice) may be served on any party by being delivered to or left for that party at its address for service of notices under clause 22.

 

24.6

Waivers

 

(a)

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

 

(b)

In this clause 24.6:

 

(1)

conduct includes delay in the exercise of a right;

 

(2)

right means any right arising under or in connection with this agreement and includes the right to rely on this clause.

 

(3)

waiver includes an election between rights and remedies, and conduct which might otherwise give rise to an estoppel.

 

24.7

Variation

A variation of any term of this agreement must be writing and signed by the parties.

 

24.8	Counterparts

This agreement may be executed in any number of counterparts that together will constitute one instrument. A party may execute this agreement by signing any counterpart.

 

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		24    General

 

24.9	Further assurances

Each party must do all things and execute all further documents necessary to give full effect to this agreement and their obligations under it.

 

24.10

Prohibition and enforceability

 

(a)

Any provision of, or the application of any provision of, this agreement or any right, power, authority, discretion or remedy conferred by this agreement that is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

 

(b)

Any provision of, or the application of any provision of, this agreement that is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

 

24.11

Relationship of parties

 

(a)

Nothing in this agreement gives a party authority to bind any other party in any way, except as expressly stated in this agreement.

 

(b)

Nothing in this agreement imposes any fiduciary duties on a party in relation to any other party or is to be construed as constituting a partnership between the parties, except as expressly stated in this agreement.

 

(c)

The rights, duties, obligations and liabilities of Boral and USG arising out of this agreement are several in proportion to their Shareholding Percentage and are neither joint nor joint and several.

 

24.12

Exercise of rights

 

(a)

Unless expressly required by the terms of this agreement, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with this agreement.

 

(b)

A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with this agreement. Any conditions must be complied with by the party relying on the consent, approval or waiver.

 

24.13

Remedies cumulative

Except as provided in this agreement and permitted by law, the rights, powers and remedies provided in this agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this agreement.

 

24.14

Survival of clauses

Clauses 9, 10, 16, 18, 20, 22, 23 and 24 and each indemnity in this agreement, survive termination of this agreement.

 

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Schedule 1

Definitions and interpretation

 

 

1	Definitions

 

The meanings of the terms used in this document are set out below.

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

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		Schedule 1    Definitions and interpretation

 

 

2	Interpretation

 

 

In this agreement:

 

(a)

Headings, bold type and the entirety of clause 2 of this agreement are for convenience only and do not affect the interpretation of this agreement.

 

(b)

The singular includes the plural and the plural includes the singular.

 

(c)

Words of any gender include all genders.

 

(d)

Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning.

 

(e)

An expression importing a person includes any company, partnership, joint venture, association, trust, corporation or other body corporate and any Government Agency as well as an individual.

 

(f)

A reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this agreement and a reference to this agreement includes any schedule, attachment or exhibit.

 

(g)

A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.

 

(h)

A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.

 

(i)

A reference to a party to a document includes that party’s successors and permitted assignees.

 

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		Schedule 1    Definitions and interpretation

 

(j)

A reference to an agreement other than this agreement includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.

 

(k)

No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.

 

(l)

A reference to a body, other than a party to this agreement (including an institute, association or authority), whether statutory or not:

 

(1)

which ceases to exist; or

 

(2)

whose powers or functions are transferred to another body,

is a reference to the body which replaces it or which substantially succeeds to its powers or functions.

 

(m)

A reference to $ is to US Dollars.

 

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Signing page

Executed as a deed

 

 

 

		Signed sealed and delivered by Boral Building Materials Pty Limited by
sign here u
		Company Secretary/Director
print name
sign here u
		Director
print name
		Signed sealed and delivered by Boral International Pty Limited by
sign here u
		Company Secretary/Director
print name
sign here u
		Director
print name
		Signed sealed and delivered by USG Netherlands Global Holdings B.V. by
sign here u
		Authorised Representative
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Shareholders agreement		page 1

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		Schedule 1    Signing page

 

		Signed sealed and delivered by [USG Boral Building Products Pty Limited] by
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		Company Secretary/Director
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		Director
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		Signed sealed and delivered by [USG Boral Building Products Pte Limited] by its attorney
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		Name of attorney
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		Signed sealed and delivered by Boral Limited by
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		Company Secretary/Director
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sign here u
		Director
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		Signed sealed and delivered by USG Corporation by
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		Authorised Representative
print name

 

Shareholders agreement		page 2