ASSET PURCHASE AGREEMENT*
Between
QUANTUM EXPLOSIVES PTY LIMITED
ACN 087 119 515
("Purchaser")
and
TOTAL ENERGY SYSTEMS LIMITED
ACN 010 876 150
("TES")
and
T.E.S. MINING SERVICES PTY LTD
ACN 010 975 676
("TES Mining")
and
TOTAL ENERGY SYSTEMS (INTERNATIONAL) PTY LTD
ACN 084 562 247
("TES International")
and
TOTAL ENERGY SYSTEMS (NZ) LIMITED
(DN/682396)
("TES NZ")
LEGAL & CONTRACT SERVICES
THIESS CONTRACTORS PTY LIMITED
PO Box 199 Archerfield Qld 4108
Ph: (07) 3275-8563 Fax: (07) 3275-8633
email address: rsinclair@thiess.com.au
Copyright 1999
*INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED FROM THIS PUBLIC
FILING PURSUANT TO A REQUEST BY THE COMPANY FOR CONFIDENTIAL
TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED
INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH REQUEST.
TABLE OF CONTENTS Page No.
1. Definitions and Interpretation. . . . . . . . . . . 1
2. Conditions Precedent. . . . . . . . . . . . . . . . 6
3. FIRB Approval . . . . . . . . . . . . . . . . . . . 8
4. Sale and Purchase. . . . . . . . . . . . . . . . . . 9
5. Risk and Property. . . . . . . . . . . . . . . . . . 9
6. Purchase Price . . . . . . . . . . . . . . . . . . . 9
7. Inventory. . . . . . . . . . . . . . . . . . . . . . 10
8. Accrued Liabilities. . . . . . . . . . . . . . . . . 10
9. Damage to Business Premises or Assets. . . . . . . . 11
10. Completion. . . . . . . . . . . . . . . . . . . . . 11
11. Final Instalment. . . . . . . . . . . . . . . . . . 14
12. Warranties. . . . . . . . . . . . . . . . . . . . . 14
13. Indemnities . . . . . . . . . . . . . . . . . . . . 15
14. Debtors and Creditors . . . . . . . . . . . . . . . 15
15. Employees . . . . . . . . . . . . . . . . . . . . . 16
16. Superannuation. . . . . . . . . . . . . . . . . . . 17
17. Plant Leases and Financing Leases . . . . . . . . . 17
18. Other Contracts . . . . . . . . . . . . . . . . . . 18
19. Contractual Indemnity . . . . . . . . . . . . . . . 18
20. Transition. . . . . . . . . . . . . . . . . . . . . 19
21. Other Obligations after Completion. . . . . . . . . 20
22. Default . . . . . . . . . . . . . . . . . . . . . . 20
23. Restraint on Competition. . . . . . . . . . . . . . 22
24. Expert Determination. . . . . . . . . . . . . . . . 23
25. International Sale of Goods - Exclusion of Vienna
Convention. . . . . . . . . . . . . . . . . . . 23
26. Interest . . . . . . . . . . . . . . . . . . . . . 23
27. Continuing Obligations . . . . . . . . . . . . . . 24
28. Reconstruction of Authority. . . . . . . . . . . . 24
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29. Further Assurance. . . . . . . . . . . . . . . . . 24
30. Severability . . . . . . . . . . . . . . . . . . . 24
31. Entire Understanding . . . . . . . . . . . . . . . 24
32. Variation. . . . . . . . . . . . . . . . . . . . . 24
33. Waiver . . . . . . . . . . . . . . . . . . . . . . 25
34. Costs and Outlays. . . . . . . . . . . . . . . . . 25
35. Notices. . . . . . . . . . . . . . . . . . . . . . 25
36. Governing Law and Jurisdiction . . . . . . . . . . 26
37. Contaminated Land. . . . . . . . . . . . . . . . . 27
38. Licence from SEC . . . . . . . . . . . . . . . . . 27
39. *** Assets . . . . . . . . . . . . . . . . . . . . 27
40. Confidentiality. . . . . . . . . . . . . . . . . . 28
SCHEDULES
SCHEDULE 1A - VENDOR'S WARRANTIES . . . . . . . . . . . 29
SCHEDULE 1B - PURCHASER'S WARRANTIES. . . . . . . . . . 35
SCHEDULE 2 - PLANT, EQUIPMENT, FIXTURES AND FITTINGS . 36
SCHEDULE 3 - INTELLECTUAL PROPERTY . . . . . . . . . . 37
SCHEDULE 4 - BUSINESS NAMES. . . . . . . . . . . . . . 38
SCHEDULE 5 - PROPERTY LEASES . . . . . . . . . . . . . 39
SCHEDULE 6 - MATERIAL CONTRACTS. . . . . . . . . . . . 40
SCHEDULE 7 - EMPLOYEES . . . . . . . . . . . . . . . . 41
SCHEDULE 8 - RETIRMENT BENEFITS SCHEMES, PENSION
SCHEMES and OTHER SUPERANNUATION or PENSIONS
ARRANGEMENTS . . . . . . . . . . . . . . . . . . . . . 43
SCHEDULE 9 - NECESSARY APPROVALS . . . . . . . . . . . 44
SCHEDULE 10 - *** ASSETS. . . . . . . . . . . . . . . . 53
SCHEDULE 11 - OPERATING LEASES. . . . . . . . . . . . . 54
SCHEDULE 12 - FINANCING LEASES. . . . . . . . . . . . . 55
ANNEXURE A - PURCHASER'S PARENT AGREEMENT. . . . . . . 59
ANNEXURE B - VENDOR'S PARENT GUARANTEE . . . . . . . . 60
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECRETARY
OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.
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AGREEMENT made 1999
PARTIES TOTAL ENERGY SYSTEMS LIMITED ACN 010 876 150 ("TES")
T.E.S. MINING SERVICES PTY LTD ACN 010 975 676
("TES Mining")
TOTAL ENERGY SYSTEMS (INTERNATIONAL) PTY LTD
ACN 084 562 247 ("TES International")
and TOTAL ENERGY SYSTEMS (NZ) LIMITED ("TES NZ")
(DN/682396)
all c/- Level 7, 371 Queen Street, Brisbane, Queensland
("Vendors")
AND QUANTUM EXPLOSIVES PTY LIMITED ACN 087 119 515 of 146 Kerry
Road, Archerfield, Queensland ("Purchaser")
INTRODUCTION
A. The Vendors conduct the Business in Australia and elsewhere.
B. TES is a wholly owned indirect subsidiary of LSB Chemical.
TES Mining, TES International and TES NZ are subsidiaries of
TES.
C. The Vendors have agreed to sell the Assets and the Business
as a going concern to the Purchaser and the Purchaser has
agreed to buy the Assets and the Business as a going concern
from the Vendors on the terms of this Agreement.
IT IS AGREED
1. Definitions and Interpretation
1.1 Definitions
In this Agreement:
1.1.1 Advertising Material" means all advertising, sales
and marketing material owned or controlled by the
Vendors and used by the Vendors in relation to the
Business;
1.1.2 "Agreement" means this document, including any
schedule or annexure to it;
1.1.3 "Assets" means the property of the Vendors (other
than the Book Debts) used in the Business at the
opening of business on the Completion Date,
comprising:
.1 the Plant and Equipment and any other plant,
equipment, fixtures and fittings used in
connection with the Business at the date of
this Agreement or acquired or constructed by
the Vendors in connection with the Business
after the date of this Agreement and prior to
Completion;
.2 the goodwill of the Business including any
Know-how, Technical Data, Advertising
Material (including licence to use it) and
copyright in any labelling or printing used
by the Vendors in connection with the
Business and any goodwill attaching to the
trade marks and to the Business Names;
.3 the Intellectual Property used in connection
with the Business at the date of this
Agreement or acquired by the Vendors in
connection with the Business after the date
of this Agreement and prior to Completion
including the Intellectual Property listed in
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Schedule 3 but excluding the technology
previously licensed to the Vendors by
Mining Services International Inc. and
the Toprime trademark;
.4 the Inventory; and
.5 the Material Contracts, the Property Leases,
and, to the extent that they are capable of
assignment or novation, all other contracts
including all burdens and obligations of the
Vendors thereunder entered into by the
Vendors in the course of carrying on the
Business and subsisting at the opening of
business on the Completion Date including
without limitation the Operating Leases and
the Financing Leases;
1.1.4 "Balance Date" means the date to which the most
recent balance sheet and profit and loss account
of the Business have been made up;
1.1.5 "Book Debts" means the receivables of the Business
owing to the Vendors as of the Completion Date;
1.1.6 "Business" means the Vendors' business of
manufacturing and supplying bulk and packaged
explosives and blasting agents and other products
and services to the mining, quarrying, civil
engineering and other industries in Australia, New
Zealand and elsewhere;
1.1.7 "Business Day" means a day that is not a Saturday,
Sunday or any other day which is a public holiday
or a bank holiday in the place where an act is to
be performed or a payment is to be made;
1.1.8 "Business Names" means those names set out in
Schedule 4;
1.1.9 "Business Premises" means the premises and land
that is the subject of the Property Leases;
1.1.10 "Business Records" means all books of account,
accounts, records and data however recorded and
all other documents relating to the Business and
the Assets;
1.1.11 "Completion" means the performance of the acts set
out in clause 10 to be performed on the Completion
Date;
1.1.12 "Completion Date" means:
.1 1 June 1999 if the conditions precedent are
satisfied or waived by 27 May 1999; otherwise
.2 1July 1999.;
1.1.13 "Contaminant" includes:
.1 a gas, liquid or solid;
.2 an odour;
.3 energy including noise, heat, radioactivity
and electromagnetic radiation; and
.4 a combination of contaminants.
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1.1.14 "Contamination" means any release (whether by act
or omission) of a Contaminant;
1.1.15 "Default Rate" means 10% per annum;
1.1.16 "Employees" means the persons employed by the
Vendors in the Business at the date of this
Agreement specified in Schedule 7 and any other
persons who become so employed prior to
Completion;
1.1.17 "Encumbrance" means any legal or equitable
interest or power:
.1 reserved in or over any Asset or any interest
in any Asset; or
.2 created or otherwise arising in or over any
Asset or any interest in any Asset under a
transfer, bill of sale, mortgage, fixed or
floating charge, lien (other than repairer's
liens which will be discharged by the Vendors
in the ordinary course), pledge, trust or
power;
by way of security for the payment of a debt, any
other pecuniary obligation or the performance of
any other obligation but does not include the
burden of obligations and duties to be performed
under the Property Leases, Material Contracts,
Financing Leases, Operating Leases and other
contracts relating to the Business and any
existing licence or sublicence attaching to the
Intellectual Property including without limitation
the sublicence to Quin Investments Pty Ltd.;
1.1.18 "Environmental Law" means any law, whether statute
or common law, concerning environmental matters,
and includes but is not limited to law concerning
land use, development, pollution, waste disposal,
toxic and hazardous substances, conservation of
natural and cultural resources and resource
allocation including any law relating to
exploration for or development of any natural
resource;
1.1.19 "Environmental Liability" means any liability,
obligation, expense, penalty or fine, whether
present, prospective or contingent, under any
Environmental Law;
1.1.20 "Existing Environmental Cost" has the meaning
given in clause 37.3;
1.1.21 "Excluded Employees" means those Employees as
agreed by the Purchaser and the Vendors, to whom
the Purchaser does not have to make an offer of
employment;
1.1.22 "Expert" means a person agreed in writing by the
Vendors and the Purchaser or in default of
agreement, a person appointed by the President for
the time being of the Queensland Law Society on
the application of either the Vendors or the
Purchaser.
1.1.23 "Final Instalment Date" means 21 days after the
Completion Date;
1.1.24 "Financing Leases" means the leases and hire
purchase agreements listed in Schedule 12;
1.1.25 "Intellectual Property" means trade marks, logos,
service marks, trade names, business names,
copyrights, designs, patents, inventions,
processes and other technical know-how and other
rights in industrial property and applications for
them and licence agreements or other arrangements
under which a person has the right to use any of
the foregoing but excluding the technology
previously licensed to the Vendors by Mining
Services International Inc.;
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ASSET PURCHASE AGREEMENT 3 C COPYRIGHT 1999
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1.1.26 "Know-how" means all the knowledge and information
(whether contained in the Business Records or
otherwise) which the Vendors or any Related Body
Corporate have relating to the Business and which
the Vendors are able to assign to the Purchaser
without breaching any law or contract;
1.1.27 "Leased Plant and Equipment" means those items of
Plant and Equipment specified in Schedule 12 as
being subject to a Financing Lease.
1.1.28 "Liability" includes a present, prospective or
contingent liability;
1.1.29 "LSB Chemical" means LSB Chemical Corp of 165
Pennsylvania Avenue, Oklahoma City, United State
of America;
1.1.30 "LSB Industries" means LSB Industries Inc of 165
Pennsylvania Avenue, Oklahoma City, United State
of America;
1.1.31 "Material Contracts" means the contracts specified
in Schedule 6 including all burdens and
obligations of the Vendors thereunder;
1.1.32 "Materials" means all files, input materials,
output materials, media upon which input and
output materials are located (including cards,
disks, tapes and other storage facilities),
software programs or packages and any related
documentation to the extent that they are capable
of assignment or novation, source codes and all
other materials, reports, information and results
in relation to the Business
1.1.33 "Necessary Approvals" means any consent,
registration, filing, certificate, licence,
approval, permit, authority or the like necessary
to enable the Purchaser to conduct the Business
including those specified in Schedule 9;
1.1.34 "Non-transferring Employees" means all of the
Employees (other than Excluded Employees) who do
not become Transferring Employees on or before the
Completion Date;
1.1.35 "*** Assets" means the plant and equipment listed
in Schedule 10;
1.1.36 "Operating Leases" means the leases listed in
Schedule 11;
1.1.37 "Plant and Equipment" means the plant, equipment,
vehicles, furniture, fixtures and fittings
(including spare parts) specified in Schedule 2
and any additions or deletions thereto agreed by
the parties;
1.1.38 "Plant Leases" means any leasing agreements,
hiring agreements and hire purchase agreements
affecting the Plant and Equipment prior to the
Completion Date other than the Financing Leases;
1.1.39 "Property Leases" means the real property leases
specified in Schedule 5 including all burdens and
obligations thereunder;
1.1.40 "Purchase Price" means the purchase price stated
in clause 6.1;
1.1.41 "PVI" means the total minimum Financing Lease
lease payments less future finance charges and
executory costs as shown in TES' lease statutory
accounts disclosure report prepared in accordance
with TES' usual practice as at the Completion
Date;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 4 C COPYRIGHT 1999
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1.1.42 "Related Body Corporate" has the meaning given in
section 9 of the Corporations Law;
1.1.43 "Inventory" means all trading stock, consumables,
packaging and packaging materials, work-in-
progress, raw materials and finished goods held,
used or to be used in the Business and owned,
unencumbered by the Vendors at the opening of
business on the Completion Date;
1.1.44 "Satisfaction Date" means 29 June 1999 or such
later date as the Parties may agree;
1.1.45 "SEC" means Slurry Explosive Corporation of 5700
North Portland, Oklahoma City, Oklahoma, United
States of America;
1.1.46 "Technical Data" means all designs, drawings,
specifications, formulae, manufacturing processes,
operating procedures and other technical data and
information of whatever kind relating to the Busi-
ness which the Vendors are able to assign to the
Purchaser without breaching any law or contract;
1.1.47 "Transferring Employees" means all Employees who
accept the offers of employment made by the
Purchaser under clause 15.1 on or before the
Completion Date;
1.1.48 "Vendors" means TES, TES Mining, TES International
and TES NZ; and
1.1.49 "Warranty" means a representation or warranty
contained in Schedule 1A and 1 B.
1.2 Interpretation
1.2.1 Reference to:
.1 one gender includes the others;
.2 the singular includes the plural and the
plural includes the singular;
.3 a person includes a body corporate;
.4 a party includes the party's executors,
administrators, successors and permitted
assigns;
.5 a statute, regulation or provision of a
statute or regulation ("Statutory Provision")
includes:
(i) that Statutory Provision as amended or
re-enacted from time to time; and
(ii) a statute, regulation or provision
enacted in replacement of that Statutory
Provision; and
.6 money is to Australian dollars, unless
otherwise stated.
1.2.2 "Including" and similar expressions are not words
of limitation.
1.2.3 Where a word or expression is given a particular
meaning, other parts of speech and grammatical
forms of that word or expression have a corresponding
meaning.
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1.2.4 Headings are for convenience only and do not form
part of this Agreement or affect its
interpretation.
1.2.5 A provision of this Agreement must not be
construed to the disadvantage of a party merely
because that party was responsible for the
preparation of the Agreement or the inclusion of
the provision in the Agreement.
1.2.6 If an act must be done on a specified day which is
not a Business Day, it must be done instead on the
next Business Day.
1.3 Parties
1.3.1 If a party consists of more than 1 person, this
Agreement binds each of them separately and any 2
or more of them jointly.
1.3.2 An obligation, representation or warranty in
favour of more than 1 person is for the benefit of
them separately and jointly.
1.3.3 A party which is a trustee is bound both
personally and in its capacity as a trustee.
2. Conditions Precedent
2.1 This Agreement is subject to each of the following
conditions precedent to the sale and purchase being
fulfilled on or before the Satisfaction Date (unless
otherwise stated):
2.1.1 the lessors, and the lessors' mortgagees (if
required by the lessor), consenting to assignment
of the Property Leases from the Vendors to the
Purchaser with only such modifications or
conditions as are reasonably acceptable to the
Purchaser but the Purchaser shall accept as a
condition of any such assignment that it provide
to the lessors replacement security deposits or
guarantees for those lodged by or on behalf of the
Vendors;
2.1.2 all parties to the Material Contracts consenting
to the assignment or novation of those contracts
in favour of the Purchaser with only such
modifications or conditions as are reasonably
acceptable to the Purchaser but the Purchaser
shall accept as a condition of any such assignment
or novation that it provide to the other parties
to the Material Contracts replacement security
deposits or guarantees for those lodged by or on
behalf of the Vendors;
2.1.3 the Minister for Mines and Energy for and on
behalf of the State of Queensland:
.1 granting or otherwise agreeing in writing to
grant to the Purchaser a new occupancy
agreement, licence or lease to occupy the
*** Explosive Reserve site on terms
reasonably satisfactory to the Purchaser
provided that a lease or licence or occupancy
agreement on substantially similar terms to
that currently held by TES will be reasonably
satisfactory; and
.2 consenting to TES terminating without
liability its existing Occupancy Agreement in
respect of this site with effect on and from
the Completion Date;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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2.1.4 the Purchaser (by the Completion Date) obtaining
all Necessary Approvals in its own name on terms
and conditions (if any) acceptable to the
Purchaser provided the Purchaser has been advised
and hereby acknowledges and agrees and understands
that the Vendors operate a Business requiring
licences under the Environmental Protection Act
and that it will be necessary for an assignment of
those licences or new licences to be obtained by
the Purchaser in order to properly operate the
Business;
2.1.5 the Purchaser entering an agreement with LSB
Industries, under which LSB Industries agrees to
supply the Purchaser ammonium nitrate on terms
reasonably satisfactory to both the Purchaser and
LSB Industries;
2.1.6 THIESS Contractors Pty Limited ACN 010 221 486
validly executing and giving to the Vendors a
Guarantee in the form attached as Annexure A
within 14 days after the execution of this
Agreement or such longer time up to the
Satisfaction Date as to which the Vendors, in
their sole discretion may consent;
2.1.7 subject to clause 2.3 the Vendors and the
Purchaser each in their absolute discretion being
satisfied with the Existing Environmental Cost but
the Vendors and the Purchaser will be satisfied
with the Existing Environmental Cost if it is not
in excess of $100,000;
2.1.8 LSB Industries validly executing and giving to the
Purchaser a guarantee in the form attached as
Annexure B;
2.1.9 Subject to clause 38, SEC consenting to the
assignment or novation of the Licence Agreement,
dated 1 October 1996 between SEC and TES, from TES
to the Purchaser on terms reasonably acceptable to
the Purchaser. ***. The Purchaser also accepts
that it will be a reasonably acceptable term of
the assignment or novation of the licence
agreement that the Purchaser cannot assign the
licence or sublicence its rights thereunder
without the consent of SEC which consent will not
be unreasonably withheld in the case of a
sublicence for the purpose of the production of
product for the Purchaser's own use in selling to
its customers; and
2.1.10 the Vendors (by the Completion Date) either,
purchasing the Leased Plant and Equipment free
from any Financing Lease or Encumbrance or, all
parties to the Financing Leases consenting to the
assignment or novation of those contracts in
favour of the Purchaser with only such
modifications or conditions as are reasonably
acceptable to the Purchaser. Provided that the
Purchaser shall accept as a condition of any such
assignment or novation that where the lessor holds
title in the Leased Plant and Equipment that fact
may be registered pursuant to the Motor Vehicles
Securities Act 1986 (Qld) or any similar
legislation in any other Australian State.
2.2 Each party must at its own cost use its reasonable
endeavours and co-operate with the other parties to procure
satisfaction of the conditions precedent as quickly as
possible.
2.3 Except as otherwise provided in this clause 2.3, each
condition precedent is for the sole benefit of the Purchaser
which may waive it by giving notice to the Vendors, provided
that the Purchaser shall be deemed to have waived any
failure of any such condition precedent if such failure
arises as a result of the Purchaser's default. The condition
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 7 C COPYRIGHT 1999
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precedent in clause 2.1.6 is for the sole benefit of the Vendors
and may be waived by the Vendors in their absolute discretion.
The condition precedent in clause 2.1.7 is for the benefit of
both the Vendors and the Purchaser and cannot be waived
without the agreement of the Parties provided that that
condition precedent will be deemed to be satisfied where the
Existing Environmental Cost exceeds $100,000 if any of the
following apply:
2.3.1 the Parties agree how the amount by which the
Existing Environmental Cost exceeds $100,000
("Excess Amount") is to be borne between them;
2.3.2 the Vendor elects in its absolute discretion to
accept the Existing Environmental Cost; or
2.3.3 the Purchaser agrees to bear the Excess Amount and
in such a case the deduction from the Purchase
Price in clause 6.1.4 shall be limited to
$100,000.
2.4 Subject to clauses 2.5, 2.6 and 2.7 if the conditions
precedent are not satisfied or waived by the Satisfaction
Date then this Agreement may be rescinded by the Purchaser
or the Vendors by notice to the other without penalty.
2.5 Notwithstanding clause 2.1.1 and clause 10.2.10 the parties
agree that there shall be no failure to fulfil the condition
precedent and no breach of the completion obligation in
those clauses where at the Satisfaction Date the consent of
the lessor and if required by the lessor, the lessor's
mortgagee to the assignment of the relevant Property Lease
has not been obtained in respect of the premises described
as *** or those premises which are used for residential
purposes only In such a case the Vendors and the Purchaser
will continue to pursue the lessors for consent to the
assignment subsequent to the Completion Date.
2.6 Notwithstanding clause 2.1.2 and clause 10.2.2 the parties
agree that there shall be no failure to fulfil the condition
precedent and no breach of the completion obligation in
those clauses if by the Satisfaction Date the consent of
Denasa Detonantes Nacionales S.A. ("DDN") to the assignment
of its contract with TES to the Purchaser has not been
obtained, provided TES agrees to obtain goods under that
contract for the Purchaser at the same price and otherwise
on the same terms as TES has with DDN.
2.7 Notwithstanding clause 2.1.2 and clause 10.2.2 the parties
agree that there shall be no failure to fulfil the condition
precedent and no breach of the completion obligation in
those clauses if by the Satisfaction Date the consent of
Beston Chemical International Limited ("Beston") to the
assignment of its contract with TES to the Purchaser has not
been obtained, provided TES agrees to obtain goods under
that contract for the Purchaser at the same price and
otherwise on the same terms as TES has with Beston. Subject
to the Beston contract being assigned to the Purchaser, the
Purchaser shall on Completion pay to the Vendors in addition
to the Purchase Price, an amount equal to the amount of
credit available to TES and transferred to the Purchaser
against the price for future purchases of goods under that
contract.
2.8 Notwithstanding clause 2.1.2 and clause 10.2.2 the parties
agree that there shall be no failure to fulfil the condition
precedent and no breach of the completion obligation in
those clauses if by the Satisfaction Date the consent of ***
to the assignment of its contract with TES ("the ***
Contract")to the Purchaser has not been obtained, provided
TES agrees to obtain goods under that contract for the
Purchaser at the same price and otherwise on the same terms
as TES has with ***. The Purchaser acknowledges and agrees
that it must order and pay for not less than 1200 tonnes of
a combination of ammonium nitrate at 90% concentration and
in prill form per 12 week period under the *** Contract.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 8 C COPYRIGHT 1999
B/222128
3. FIRB Approval
3.1 Within 3 Business Days after the date of this Agreement the
Purchaser must apply to FIRB for approval to purchase the
Assets and the Business as a going concern. The Purchaser
must take all reasonable steps to obtain approval by the
Completion Date ("Approval Date").
3.2 The Purchaser may terminate this Agreement by notice to the
Vendors if by the Approval Date:
3.2.1 the Treasurer of the Commonwealth of Australia
advises either the Vendors or the Purchaser that
it objects to the purchase of the Assets and the
Business as a going concern by the Purchaser;
3.2.2. the Treasurer has not notified the Vendors or
Purchaser of his or her decision concerning the
Purchaser's application; or
3.2.3 the Treasurer approves the purchase subject to
conditions which are unsatisfactory to the
Purchaser in exercise of the Purchaser's
reasonable judgment.
4. Sale and Purchase
4.1 Subject to the terms, conditions and limitations of this
Agreement, the Vendors sell to the Purchaser and the
Purchaser purchases from the Vendors, the Assets and the
Business as a going concern, free from Encumbrances.
5. Risk and Property
5.1 Subject to Completion, the title in and right to possession of the
Assets passes to the Purchaser at the opening of business on the
Completion Date.
5.2 The Assets remain at the risk of the Vendors until Completion, at which
time such risk shall pass to the Purchaser.
6. Purchase Price
6.1 The Purchase Price for the Assets and the Business is the
aggregate of:
6.1.1 ***;
6.1.2 ***;
minus:
6.1.3 ***;
6.1.4 ***;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 9 C COPYRIGHT 1999
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6.1.5 ***.
6.2 That part of the Purchase Price payable under
clause 6.1.1 is apportioned as follows:
Goodwill $***
Plant and Equipment ***
It is agreed that, although the price for the goodwill of
the Business has been specified, the goodwill has or may
have (having regard to the provisions of this Agreement as a
whole), a value to the Purchaser in excess of that price
and, in the event of a breach of contract by the Vendors in
relation to that Asset, the Purchaser is not restricted in
claiming damages for the breach, to that price.
6.3 The Purchaser must pay the Purchase Price to the Vendors in
accordance with clauses 10.5 and 11.
7. Inventory
7.1 The adjustments to the value of Inventory are determined in
accordance with this clause 7.
7.2 The Vendors shall undertake their usual monthly physical
stocktake of the Inventory as at the day prior to the
Completion Date and representatives of the Purchaser may be
present during that stocktake.
7.3 The Vendors and the Purchaser must use their reasonable
endeavours to ensure that the stocktake of Inventory is
completed prior to the opening of business on the Completion
Date and that the value of Inventory is agreed not later
than 15 days after the Completion Date.
7.4 The values ascribed to each item of Inventory must be ***.
7.5 The Vendors must not acquire any further Inventory after the
date of this Agreement and prior to the Completion Date
which would be excessive to the needs of the Business in the
ordinary course.
7.6 Subject to clauses 7.5 and 11.1.2, in addition to the
Purchase Price the Purchaser shall pay to the Vendors upon
presentation of relevant invoices or bills of lading and
reasonably satisfactory proof of payment, the costs payable
by the Vendors (including invoiced costs, freight and
transport charges, export and import duties and other
incidental costs) for all raw materials and finished goods
in transit or ordered by the Vendors but not delivered as at
the Completion Date. Upon receipt of such payment the Vendor
shall transfer to the Purchaser full and unencumbered title
to and possession of those raw materials and finished goods.
Provided that the Vendors may direct the Purchaser to make
the necessary payments direct to the relevant
supplier/creditor if upon the making of such payment full
and unencumbered title to and possession of those raw
materials and finished goods vests in the Purchaser.
8. Accrued Liabilities
8.1 The value of accrued liabilities referred to in clause 6.1.3
must be determined by the Vendors in accordance with this
clause 8 and notified by the Vendors to the Purchaser not
later than 15 days after the Completion Date.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 10 C COPYRIGHT 1999
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8.2 Annual leave must be calculated on the basis of full
statutory entitlements on all service of Transferring
Employees at the close of business on the last Business Day
prior to the Completion Date less leave taken.
8.3 Long service leave must be calculated on the service of
Transferring Employees to the close of business on the last
Business Day prior to the Completion Date as:
8.3.1 Full Statutory Entitlements where an Employee is
entitled to them, less leave taken; or
8.3.2 where an Employee has been employed for not less
than 1/2 of the Qualifying Period, the same
proportion of the Full Statutory Entitlements as
the period of service of the Employee bears to the
period of service required for Full Statutory
Entitlements.
8.4 For the purpose of clause 8.3:
8.4.1 "Full Statutory Entitlements" means the
entitlements of an Employee who has served the
period required to entitle the Employee by law to
take full long service leave without leaving the
employment; and
8.4.2 "Qualifying Period" means the period which
entitles an Employee by law to a proportional
payment for long service leave if the employment
terminates.
8.5 The Vendors must supply to the Purchaser on or prior to the
Final Instalment Date such verification of the calculation
of the accrued liabilities as the Purchaser may reasonably
require.
9. Damage to Business Premises or Assets
9.1 If between the date of this Agreement and Completion, the
Business Premises are damaged or destroyed or any item of
Plant and Equipment is lost damaged or destroyed then:
9.1.1 if the destruction or damage renders the Business
wholly or substantially incapable of being
conducted for a period in excess of 21 days, the
Purchaser may terminate this Agreement; or
9.1.2 if clause 9.1.1 does not apply, the Purchaser may
deduct from the Purchase Price a sum equal to the
*** value used in calculating that part of the
Purchase Price constituted by the item which has
been destroyed or lost or the cost of repair of
the item which has been damaged.
10. Completion
10.1 Completion must take place at the office of the solicitors
for the Vendors, in Brisbane, on the Completion Date or on
such other date and place as may be agreed by the Vendors
and the Purchaser.
10.2 At Completion, the Vendors must deliver the Assets and the
Business to the Purchaser by giving to the Purchaser
possession of the Assets and handing to the Purchaser:
10.2.1 all Business Records (including a complete and up-
to-date list of customers and suppliers and
records relating to each item of plant);
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 11 C COPYRIGHT 1999
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10.2.2 assignments or novations of the Material Contracts
and such assignments or novations of other
contracts relating to the Business as it has then
obtained together with the originals or
counterparts of all contracts held by the Vendors;
10.2.3 "statements of change of persons in relation to
whom business name is registered" in respect of
the Business Names, signed by the Vendors,
together with the certificates of registration of
the Business Names;
10.2.4 [intentionally deleted];
10.2.5 a release of the deeds of charge given by the
Vendors to *** so far as they relate to the
Assets;
10.2.6 deeds of assignment of the trade marks which are
owned by the Vendors (other than the "HEF"
trademark ) together with certificates of
registration of the trade marks;
10.2.7 if the Vendors are recorded, or have applied to be
recorded, as claiming an interest in, or a right
in respect of, a trade mark (other than the "HEF"
trademark ), an application in the approved form
signed by the registered owner of or applicant for
the trade mark, to have a claim by the Purchaser
to the same interest or right recorded in the
register, together with a written consent by the
Vendors to the cancellation of their claim;
10.2.8 all Technical Data, Materials and Advertising
Material in the possession or under the control of
the Vendors;
10.2.9 notices by the Vendors of disposition of all motor
vehicles and certificates of roadworthiness for
those motor vehicles;
10.2.10 assignments of the Property Leases signed by the
Vendors and the lessors of the Property Leases,
consents in writing of the lessors' mortgagees (if
required by the lessor) to the Property Leases and
the assignment of those Property Leases, and
stamped counterparts of the Property Leases;
10.2.11 evidence to the reasonable satisfaction of the
Purchaser of the purchase by the Vendors of any of
the Plant and Equipment which had been subject to
Plant Leases;
10.2.12 all documents signed by the Vendors that may be
required to enable the Purchaser to apply for the
transfer into its name of all permits, regis-
trations, licences and documents necessary to
enable the Purchaser to legally and effectively to
carry on the Business other than the Necessary
Approvals required to be obtained by the Purchaser
prior to Completion under clause 2.1.4 which do
not involve the transfer of existing licences or
permits held by the Vendors or such Necessary
Approvals which the Purchaser has applied for and
for which the Purchaser has received written
assurances from the relevant government
authorities to the Purchaser's satisfaction;
10.2.13 releases of all Encumbrances affecting the Assets
other than the Leased Plant and Equipment which is
subject to a lease and that lease is assigned to
the Purchaser and under that lease the relevant
lessor retains the beneficial ownership of the
relevant item of Leased Plant and Equipment;
10.2.14 particulars of all outstanding contracts or orders
for the supply of goods or services of the
Business that have not been provided to the
Purchaser;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 12 C COPYRIGHT 1999
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10.2.15 particulars of all outstanding contracts or orders
for the acquisition of Materials, consumables,
components and other supplies and services that
have not been provided to the Purchaser;
10.2.16 particulars of the service and maintenance
agreements relating to the Business that have not
been provided to the Purchaser;
10.2.17 the employment records of all Employees;
10.2.18 details of the superannuation records of all
Transferring Employees;
10.2.19 details of all payments to be made in respect of
all Employees under any applicable legislation,
registered industrial awards and contracts of
employment;
10.2.20 all documents required from the Vendors to enable
the Purchaser to obtain the telephone and
facsimile services and numbers of the Business;
10.2.21 all keys and codes required to gain access to the
Business Premises, all computer systems and all
other property sold under this Agreement;
10.2.22 all other documents and information to be
delivered to the Purchaser under this Agreement;
and
10.2.23 all other information, items and documents
relating to the Business which the Purchaser may
reasonably require.
10.3 The Purchaser must prepare and submit to the Vendors within
a reasonable time before Completion all assignments,
applications and other documents which the Vendors are
required to sign and hand to the Purchaser on Completion.
10.4 At Completion, the Vendors must:
10.4.1 use its best endeavours to transfer to the
Purchaser the Financing Leases, the Operating
Leases, any contracts, including all burdens and
obligations of the Vendors thereunder, (other than
the Material Contracts and the Property Leases)
entered into by the Vendors in the course of
carrying on the Business;
10.4.2 do (at the Vendors cost) all things (including
executing deeds, documents and instruments)
reasonably required by the Purchaser to transfer
the legal and beneficial ownership and possession
of the Assets and the Business to the Purchaser
provided that the Purchaser shall prepare at its
own cost, all such deeds, documents and
instruments required to transfer the legal and
beneficial ownership and possession of the Assets
and the Business, including all deeds required to
assign the Property Leases and the Material
Contracts; and
10.4.3 comply with all requirements, notices, orders and
directions given by any statutory, public or other
competent authority affecting the Business or the
Business Premises with regard to the conduct of
the Business, which issued or of which the Vendors
were aware, (although no notice was issued),
before the date of this Agreement.
10.5 At Completion, the Purchaser must, subject to the Vendors
performing all their obligations under this Agreement
required to be performed by the Vendors at Completion pay to
TES by telegraphic transfer and/or bank cheques drawn in
the manner advised by the Vendors in writing:
10.5.1 ***;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 13 C COPYRIGHT 1999
B/222128
10.5.2 ***;
minus:
10.5.3 ***
10.5.4 ***.
10.6 Subject to this Agreement, the Vendors are entitled to the
income of the Business, and must pay the outgoings of the
Business, in respect of the period up to the close of
business on the last Business Day prior to the Completion
Date and, subject to this Agreement and to Completion, the
Purchaser is entitled to the income of the Business and must
pay the outgoings of the Business in respect of the period
after that date.
10.7 Within 7 months from Completion or such longer period as the
Purchaser may agree, the Vendors must change their names to
names that do not include the words "Total" or "Energy" or
any similar words but during that period the Vendors may
continue to operate under their existing names subject to
clause 23.
11. Final Instalment
11.1 At the Final Instalment Date:
11.1.1 the Purchaser must pay to TES the sum by which the
Purchase Price exceeds the amount paid to TES
under clause 10.5;
11.1.2 the Purchaser must reimburse the Vendors for:
.1 any payments made in advance by the Vendors
prior to the opening of business on the
Completion Date in respect of goods to be
supplied and services to be rendered to the
Business in the ordinary course after that
time for the benefit of the Purchaser, other
than any payments under contracts made in
breach of Warranty; and
.2 any other payment made in advance by the
Vendors in respect of the Business in the
ordinary course prior to the opening of
business on the Completion Date, the benefit
of which is not received by the Business
until after that time; and
11.1.3 the Vendors must reimburse the Purchaser for:
.1 any payments received in advance by the
Vendors prior to the opening of business on
the Completion Date in respect of goods to be
supplied or services to be rendered after
that time;
.2 any goods supplied and services rendered to
the Vendors in respect of the Business prior
to the opening of business on the Completion
Date, payment for which must be made by the
Purchaser after that time; and
.3 any payment which the Purchaser will become
liable to make in respect of the Business
after the opening of business on the
Completion Date, the benefit of which was
received by the Business before that time.
11.2 The Vendors must provide the Purchaser with details of all
the payments referred to in clause 11.1 in writing not later
than 15 days after the Completion Date together with such
verification as the Purchaser may reasonably require.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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ASSET PURCHASE AGREEMENT 14 C COPYRIGHT 1999
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12. Warranties
12.1 The Vendors jointly and each of them separately warrant to
the Purchaser in terms of the Warranties set out in
Schedule 1A.
12.2 The Purchaser warrants to the Vendors in terms of the
Warranties set out in Schedule 1B.
12.3 Each of the Warranties is made and applies at the date of
this Agreement.
12.4 Each of the Warranties is made and applies at the Completion
Date.
12.5 A Warranty which refers to "the knowledge, information and
belief" of the Vendors, or which refers to their
"knowledge", or contains words to that effect, or which
refers to them or any of them being aware or not being aware
of a matter, must be treated as including an additional
Warranty that the Vendors have made due and reasonable
enquiry as to the matter.
12.6 Any action for the breach of any Warranty made under this
Agreement must be taken, if at all, within twelve (12)
months after the Completion Date. Thereafter the person to
whom the Warranty is made will have no right, claim or cause
of action whatsoever arising out of any breach of or
inaccuracy in the Warranties.
12.7 The Purchaser and Vendors acknowledge and agree that, other
than as set out in Schedule 1A and 1B, neither the Vendors,
the Purchaser, nor any other person for or on their behalf
have made any representations, warranties or statements
concerning the Business, the Assets or the subject matter of
this Agreement.
12.8 The Inventory is sold to the Purchaser as is, where is, and
with all faults. There is no express or implied warranty as
to the condition, design, workmanship, or the lack of any
latent defects in connection with any of the Inventory and
the Vendors make no warranty of merchantability in respect
of the Inventory or of the fitness of the Inventory for any
particular purpose.
13. Indemnities
13.1 The Vendors indemnify the Purchaser against all Liabilities
and the cost of all demands, actions and other proceedings
against the Purchaser (including legal costs on a solicitor
and own client basis) arising directly or indirectly as a
result of or in connection with, any breach or non-
performance of the Warranties made by the Vendors or
obligations of the Vendors, whether express or implied,
under this Agreement, provided however that the aggregate
liability of the Vendors for all claims made for such breach
or non performance shall not in any circumstances exceed
$1,000,000.
13.2 The Purchaser indemnifies the Vendors against all
Liabilities and the cost of all demands, actions and other
proceedings against the Vendors (including legal costs on a
solicitor and own client basis) arising directly or
indirectly as a result of or in connection with, any breach
or non-performance by the Purchaser of the warranties made
by the Purchaser or the obligations of the Purchaser,
whether express or implied, under this Agreement or under
any other agreement assigned to the Purchaser under this
Agreement, provided however that the aggregate liability of
the Purchasers for all claims made for such breach or non
performance shall not in any circumstances exceed
$1,000,000.
13.3 If a claim is made by any person against a party
("Indemnified Party") which, if satisfied or paid by the
Indemnified Party, would permit the Indemnified Party to
make a claim against another party ("Indemnifier") under
this Agreement:
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ASSET PURCHASE AGREEMENT 15 C COPYRIGHT 1999
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13.3.1 the Indemnified Party must give notice of the
claim to the Indemnifier; and
13.3.2 the Indemnifier must, within 21 days after receipt
of that notice, either:
.1 cause the Indemnified Party to be put in
sufficient funds to satisfy or pay the claim;
or
.2 by notice to the Indemnified Party, request
the Indemnified Party not to satisfy or pay
the claim in whole or in part but, at the
expense and direction of the Indemnifier, to
take such action (including legal proceed-
ings) and in such manner as the Indemnifier
may direct, to avoid, dispute, defend, appeal
or compromise the claim and any adjudication
of it and the Indemnifier must also cause the
Indemnified Party to be immediately put (and
thereafter maintained) in sufficient funds in
sufficient time to pay all costs and expenses
of the action directed by the Indemnifier and
indemnify the Indemnified Party against any
Liability incurred in respect of the action
and subject to this clause 13.3.2.2, the
Indemnified Party must comply with the
directions of the Indemnifier.
13.4 If the Indemnified Party becomes aware of a potential claim
by any person against the Indemnified Party which, if
satisfied by the Indemnified Party, would permit the
Indemnified Party to make a claim against the Indemnifier
under this Agreement, the Indemnified Party must give notice
to the Indemnifier within 28 days after becoming aware of
it.
14. Debtors and Creditors
14.1 The Vendors must within 15 days of the Date of Completion
hand to the Purchaser a list of the Vendors' Book Debts
incurred prior to opening of business on the Completion
Date.
14.2 The Purchaser, as agent for the Vendors, must collect the
Vendors' Book Debts and bank all money so collected into a
bank account nominated by the Vendors and account to the
Vendors for the Book Debts so collected.
14.3 The Purchaser's obligations under this clause 14 are subject
to the Vendors complying with their obligations under clause
14.6.
14.4 The Purchaser's obligations under this clause 14 are
confined to receiving money from the Vendors' debtors and
banking it into the bank account referred to in clause 14.2.
14.5 The Purchaser's obligations under this clause 14 cease at
the expiration of 3 months from the Completion Date at which
time the Vendors and the Purchaser shall deliver notice to
each person responsible for the then outstanding Book Debts
as to whom and where such Book Debts are to be paid so as to
allow the Vendors to collect such remaining Book Debts
directly.
14.6 The Vendors must not unreasonably dispute or delay any
payments which are due by the Vendors at the Completion Date
or become due by the Vendors thereafter to any creditors who
are suppliers to the Business.
15. Employees
15.1 At least 14 days prior to the Completion Date, the Purchaser
must make offers of employment to each of the Employees
(other than the Excluded Employees) upon terms and
conditions generally no less favourable than those under
which each Employee is employed by the Vendors at the date
of this Agreement, requesting each of them to notify the
Vendors prior to the Satisfaction Date whether he or she
intends to accept the offer. The Vendors and the Purchaser
must use their best endeavours to encourage the Employees to
accept the offers.
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ASSET PURCHASE AGREEMENT 16 C COPYRIGHT 1999
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15.2 The Vendors agree, subject to Completion, to release all
Transferring Employees from the employment of the Vendors
from the close of business on the last Business Day prior to
the Completion Date and to pay to all Transferring Employees
all their outstanding wages, salaries and other
entitlements, prior to the Completion Date, other than their
entitlements in respect of long service leave, sick leave
and holiday pay.
15.3 The Purchaser assumes all sick leave, long service leave,
holiday pay and redundancy or severance obligations in
respect of the Transferring Employees on the basis that
there has been a transmission of the Business and that the
past service of each Transferring Employee with the Vendors
is, for these purposes, taken to be service with the
Purchaser.
15.4 Subject to the Vendors complying with its obligations under
clauses 15.1, 15.2 and 16.2 and Warranty 8 (Schedule 1A),
the Purchaser indemnifies the Vendors against all claims for
salary and wages, long service leave, sick leave, holiday
pay (including applicable loadings), redundancy payments,
severance payments, superannuation, rostered days off and
other entitlements to which the Transferring Employees are
or may become entitled whether under any contract of
employment, award or otherwise and against all liability to
payroll tax which is or may become payable from and after
Completion
15.5 The Vendors must pay the cost of any redundancy payments or
severance payments for Non-transferring and Excluded
Employees, provided that the Purchaser must reimburse the
Vendors for the full amount of any redundancy payment or
severance payment paid by the Vendors to a Non-transferring
or Excluded Employee where:
15.5.1 the Non-transferring or Excluded Employee is
employed or re-employed by the Purchaser within
6 months of receiving the redundancy payment or
severance payment; and
15.5.2 the Vendors have, at Completion, given the
Purchaser notice of the Employees who have been
paid redundancy or severance payments and of the
amounts paid to each.
15.6 The Vendors must use their best endeavours to ensure that
the Transferring Employees do not resign prior to or after
the Completion Date and must not for the longest valid
period specified in clause 23.1.2 employ or approach any of
them for the purpose of employing them or removing them from
the Business.
16. Superannuation
16.1 In respect of each Transferring Employee who is a member of
a superannuation scheme operated for the benefit of
Employees of the Vendors ("Vendors' Scheme"), the Purchaser
must offer to such Employee immediate membership of a
superannuation scheme operated for the benefit of employees
of the Purchaser ("Purchaser's Scheme") by virtue of which:
16.1.1 superannuation benefits accrue in future on the
usual basis applicable to members of the
Purchaser's Scheme; and
16.1.2 superannuation benefits which have accrued under
the Vendors' Scheme in respect of previous
employment or scheme membership are at least
preserved under the Purchaser's Scheme except that
the benefits secured under the Purchaser's Scheme
in respect of past employment or scheme membership
may be adjusted on an equitable basis if the
amount or assets transferred is insufficient to
support the provision of the preserved benefits.
16.2 If a Transferring Employee elects to become a member of the
Purchaser's Scheme, the Vendors must cause the amount or
assets representing the Employee's equitable entitlements
under the Vendors' Scheme to be transferred to the
Purchaser's Scheme as soon as practicable after the
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ASSET PURCHASE AGREEMENT 17 C COPYRIGHT 1999
B/222128
Completion Date and must also cause to be provided to
the Purchaser such information as the Purchaser or the
trustee of the Purchaser's Scheme reasonably requests
regarding the Employee's entitlements under the Vendors'
Scheme.
17. Plant Leases and Financing Leases
17.1 For the avoidance of doubt the Vendors must purchase any
Plant and Equipment the subject of a Plant Lease and
transfer such Plant and Equipment to the Purchaser on
Completion free from any Plant Lease or Encumbrance.
17.2 The Purchaser acknowledges that the Financing Leases
represent leases of certain items of the Plant and Equipment
which would require the Vendors to pay sums whether or not
characterised as penalties, in addition to the PVI
thereunder in order to obtain unencumbered title to the
relevant Plant and Equipment. On and from the Completion
Date the Purchaser will assume all obligations of the
Vendors under those Financing Leases which the Vendors cause
to be assigned or novated to the Purchaser. Provided that
the Purchaser shall accept as a condition of any such
assignment or novation that where the lessor holds title in
the Leased Plant and Equipment that fact may be registered
pursuant to the Motor Vehicles Securities Act 1986 (Qld) or
any similar legislation in any other Australian State.
17.3 If a Financing Lease cannot be assigned or novated to the
Purchaser the Vendors must purchase the Plant and Equipment
the subject of any such Financing Lease.
18. Other Contracts
18.1 If any of the contracts entered into by the Vendors in
relation to the Business including the Property Leases or
the Operating Leases cannot be effectively transferred to
the Purchaser as contemplated by this Agreement except by
novation or by assignment made with the consent of a third
party, the Vendors must upon the signing of this Agreement
or so soon afterwards as is practical, do everything it can
to procure the novation or the consent to the assignment.
18.2 In the period (if any) from the opening of business on the
Completion Date until the particular contract, Operating
Lease or any Property Lease, has been novated or effectively
assigned to the Purchaser or has terminated, the Purchaser
must pay, perform and discharge all of the obligations of
the Vendors under the contract (including the return or
relinquishment to a third party of any confidential
information, know-how or technical data which may come into
the possession of the Purchaser which the Vendors are
obliged by law or contract to return or relinquish to that
party) and the Vendors must permit the Purchaser to receive
and must account to the Purchaser for all the proceeds and
benefits arising from the contract. The Purchaser shall,
subject to the terms of this Agreement, indemnify and keep
indemnified the Vendors against all Liability, claims or
demands of whatsoever nature which they may incur arising
under such contracts on and from the Completion Date as a
result of the acts or omissions of the Purchaser.
18.3 Where any of the contracts entered into by the Vendors in
relation to the Business (including the Operating Leases )
or any of the Property Leases cannot be assigned or novated
to the Purchaser despite the reasonable endeavours of both
the Vendors and the Purchaser (the Unassignable Contracts)
then on and from the Completion Date the Purchaser must pay,
perform and discharge all the obligations of the Vendors
under the Unassignable Contracts and the Vendors must permit
the Purchaser to receive all benefits arising from the
Unassignable Contracts on and from the Completion Date. The
Purchaser shall, subject to the terms of this Agreement,
indemnify and keep indemnified the Vendors against all
liability of whatsoever nature which they may incur at any
time on or from the Completion Date arising under the
Unassignable Contracts.
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19. Contractual Indemnity
19.1 The Purchaser shall indemnify and keep indemnified the
Vendors against all Liabilities, claims, demands and costs
suffered or incurred by the Vendors under any of the
Material Contracts, Property Leases, Operating Leases,
Financing Leases and other contracts entered into by the
Vendors in relation to the Business which the Vendors may
suffer or incur due to any failure by the Purchaser on and
from the Completion Date to discharge the burdens and
otherwise comply with the obligations of the Vendors under
those contracts and leases.
19.2 The Purchaser shall indemnify and keep indemnified each of
the Vendors, LSB Industries, LSB Chemical and their
respective Related Bodies Corporate against all Liabilities,
claims, demands and costs suffered or incurred by any of
them under any Guarantees (as defined in clause 19.3) as a
result of any failure by the Purchaser on and from the
Completion Date to discharge the burdens and otherwise
comply with the obligations of the Vendors under those
contracts and leases in respect of which the Guarantees
have been given. The Purchaser acknowledges and agrees that
LSB Industries, LSB Chemical and their respective Related
Bodies Corporate are deemed to have accepted the benefit of
this indemnity by having given written notice to that effect
to the Purchaser on or about the date hereof. The Purchaser
acknowledges and agrees that it has received valuable
consideration for this indemnity by LSB Chemical and LSB
Industries causing the Vendors to enter into this Agreement.
19.3 Where any of the Material Contracts, Property Leases,
Operating Leases, Financing Leases or other contracts
entered into by the Vendors in relation to the Business are
subject to a guarantee, guarantee and indemnity or other
form of security ("Guarantee") given by or on behalf of the
Vendors, LSB Industries, LSB Chemical or any Related Body
Corporate to either or both companies, the Purchaser shall
accept as a reasonable requirement of effecting the
assignment of those instruments that it obtain or provide a
replacement or substitute Guarantee in order that the
existing Guarantee can be fully released and discharged.
20. Transition
20.1 A party must not make any media release or announcement or
public statement (other than as may be required by law or
under the listing rules of any relevant stock exchange)
without the consent of the other parties and must consult
with each other as to the timing and wording of their
respective announcements of the sale and purchase of the
Assets and the Business.
20.2 The Vendors must use its good offices to procure good
relationships between the Purchaser and suppliers and
customers of the Business.
20.3 The Vendors must give notice in writing of this sale and
purchase to current customers of the Business in a form
approved by the Purchaser.
20.4 Between the date of this Agreement and the Completion Date,
the Vendors must allow a reasonable number of persons
properly authorised by the Purchaser, reasonable access
during normal business hours to inspect the Assets, Business
Records and Materials.
20.5 The Vendors must use its best endeavours to maintain and
preserve the Assets and the Business from the date of this
Agreement to the Completion Date.
20.6 Until the Completion Date the Vendors:
20.6.1 must continue to carry on the Business in the
ordinary and usual course; and
20.6.2 must not without the written consent of the
Purchaser, which the Purchaser may give or
withhold at the discretion of the Purchaser:
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.1 enter into or incur in the name or on behalf
of the Business, any commitments or
Liabilities, other than commitments or
Liabilities in the ordinary course of
business; or
.2 enter into any arrangement or agreement in
connection with the Business having a value
or involving an amount in excess of $100,000.
20.7 The Vendors must comply with any requirement, notice, order
or direction given by any statutory, public or other
competent authority affecting the Assets, the Business or
the Business Premises with regard to the conduct of the
Business which has issued or may issue or of which the
Vendors are or becomes aware (although no notice is issued)
before the Completion Date.
20.8 The Purchaser must comply with any requirement, notice,
order or direction given by any statutory, public or other
competent authority affecting the Business or the Business
Premises with regard to the conduct of the Business issued
or made known after the Completion Date The Purchaser shall
indemnify the Vendors against any Liability they may incur
arising out of the Purchaser's failure to comply with any
such requirements, notices, or direction.
21. Other Obligations after Completion
21.1 The Purchaser must preserve the Business Records received on
Completion for 7 years and the Vendors, at reasonable times,
may inspect and, at its expense, obtain copies of those
records for taxation purposes or for litigation. The Vendors
and their auditors shall have reasonable access at
reasonable times, to the Business Records including without
limitation use of computer processing facilities for the
purposes of closing their books of account up to the
Completion Date. The Vendors shall also be supplied with
such reasonable assistance as they may require from the
Transferred Employees in respect of processing information
to close their books of account subsequent to Completion.
21.2 The Purchaser is not liable for accidental loss, destruction
or damage to any of the Business Records, provided the
Purchaser has taken the same efforts to safeguard the
Business Records as it does its own records.
21.3 The Vendors must until 1 year after the Completion Date
retain and, upon request, make available to the Purchaser
any records, documents, Materials and papers not handed to
the Purchaser on Completion which are necessary to enable
the Purchaser to verify the Business Records and the
Warranties.
22. Default
22.1 In this clause 22:
22.1.1 "Defaulting Party" has the meaning given to it in
clause 22.2; and
22.1.2 "Correlative Party" means:
.1 where the Purchaser is the Defaulting Party,
the Vendors; and
.2 where any of the Vendors are the Defaulting
Party, the Purchaser.
22.2 Any of the Vendors or the Purchaser is a "Defaulting Party"
for the purposes of clause 22 if any of the following apply:
22.2.1 the Defaulting Party fails to carry out any
provision of this Agreement, the failure is
capable of remedy and the Defaulting Party does
not remedy that failure within 7 days after
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written notice to the Defaulting Party by a
Correlative Party requiring it to be remedied;
22.2.2 the Defaulting Party fails to carry out any
material provision of this Agreement and the
failure is not capable of remedy;
22.2.3 execution or other process of a court or authority
or distress is levied for an amount exceeding
$10,000 upon any of the Defaulting Party's
property and is not satisfied, set aside or
withdrawn within 7 days.
22.2.4 the Defaulting Party suspends payment of its
debts;
22.2.5 a Warranty given by the Defaulting Party in this
Agreement is materially incorrect as of the date
given;
22.2.6 it becomes unlawful for the Defaulting Party to
perform its obligations under this Agreement;
22.2.7 where the Defaulting Party is a body corporate:
.1 the Defaulting Party becomes an externally-
administered body corporate under the
Corporations Law;
.2 steps are taken by any person towards making
the Defaulting Party an externally-
administered body corporate;
.3 a controller (as defined in section 9 of the
Corporations Law) is appointed of any of the
property of the Defaulting Party or any steps
are taken for the appointment of such a
person;
.4 the Defaulting Party is taken to have failed
to comply with a statutory demand within the
meaning of section 459F of the Corporations
Law; or
.5 a resolution is passed for the reduction of
capital of the Defaulting Party or notice of
intention to propose such a resolution is
given, without the prior written consent of
the other parties to this Agreement.
22.3 The Purchaser may at any time (without prejudice to its
other rights and remedies under this Agreement or at law),
if the Vendors are a Defaulting Party within the meaning of
clause 22.2, terminate this Agreement by giving notice in
writing to the Vendors.
22.4 The Vendors may at any time (without prejudice to its other
rights and remedies under this Agreement or at law) if the
Purchaser is a Defaulting Party within the meaning of
clause 22.2, terminate this Agreement by giving notice in
writing to the Purchaser.
22.5 Termination under this clause 22 does not prejudice any
claim which a party may have against another at the time of
termination.
22.6 If the notice referred to in clause 22.2.1 is given within
7 days prior to the Completion Date, then the Completion
Date is extended to coincide with the expiry of the notice
period.
22.7 Subject to clauses 13.1 and 13.2 a Defaulting Party must on
demand pay to the Correlative Parties all of the expenses
(including legal costs on a solicitor and client basis)
incurred by the Correlative Parties in connection with the
breach or default (including the giving of a notice under
clause 22.2.1) and otherwise in connection with the
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termination of this Agreement. Should notice be served
on more than one party in connection with the same breach
or default those parties are liable under this clause 22.7
jointly and each of them separatetly.
22.8 If the Purchaser terminates this Agreement under either
clause 22.3 or its other rights under this Agreement or at
law, the Vendors must, without prejudice to any other rights
and remedies of the Purchaser, immediately refund to the
Purchaser all money paid by the Purchaser to the Vendors
under this Agreement.
22.9 If the Vendors terminate this Agreement under either
clause 22.4 or its other rights under this Agreement or at
law then:
22.9.1 the Vendors may either:
.1 retain the Assets and the Business and sue
for damages for breach of this Agreement; or
.2 resell the Assets and the Business in such
manner as the Vendors see fit and recover any
deficiency in the Purchase Price on the
resale and any costs and resulting expenses
by way of liquidated damages; and
22.9.2 the Vendors may, pending determination of damages,
retain any other money paid under this Agreement
and may apply that money in satisfaction or part
satisfaction of those damages.
23. Restraint on Competition
23.1 The Vendors, jointly and separately agree with the Purchaser
that in order to protect the goodwill of the Business none
of the Vendors will either directly or indirectly at any
time:
23.1.1 within the area of:
.1 Australia;
.2 New Zealand;
.3 Queensland;
.4 Western Australia;
.5 New South Wales;
.6 South Australia;
.7 Myanmar; and
.8 The Solomon Islands;
23.1.2 for a period up to and including the Completion
Date ("Pre-completion Period") and a period of:
.1 3 years after the Completion Date; and
.2 1 year after the Completion Date; and
.3 6 months after the Completion Date.
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either:
23.1.3 canvass or solicit:
.1 orders for goods or services supplied by the
Business in the 3 months prior to the
Completion Date;
.2 business the same as or similar to the
Business in the 3 months prior to the
Completion Date;
from any person who is or has been in the
12 months prior to the Completion Date a client or
customer of the Business other than, during the
Pre-completion Period, for the Business;
or:
23.1.4 engage or be concerned or interested in any
business:
.1 the same as or similar to the Business on the
Completion Date;
.2 the same as or similar to a material part of
the Business on the Completion Date;
other than, during the Pre-completion Period, the
Business.
23.2 The agreement by the Vendors in clause 23.1 applies to any
of them acting:
23.2.1 either alone or in partnership or in association
with another person;
23.2.2 as principal, agent, representative, director,
officer or employee;
23.2.3 as member, shareholder, debenture holder, note
holder or holder of any other security;
23.2.4 as trustee of or as a consultant or adviser to any
person (other than the Purchaser); or
23.2.5 in any other capacity.
23.3 Clauses 23.1 and 23.2 have effect as comprising each of the
separate provisions which results from each combination of a
capacity referred to in clause 23.2, an area referred to in
clause 23.1.1, a period referred to in clause 23.1.2 and a
category of conduct referred to in clause 23.1.3 or
clause 23.1.4. Each of these separate provisions operates
concurrently and independently.
23.4 If any separate provision referred to in clause 23.3 is
unenforceable, illegal or void, that provision is severed
and the other provisions remain in force. Each of the
Vendors acknowledges that each of those separate provisions
is a fair and reasonable restraint of trade.
23.5 This clause 23 does not preclude the Vendors from owning
securities of a corporation or trust which are quoted on a
recognised stock exchange in Australia or elsewhere provided
that they hold not more than 15% of the total quoted
securities.
24. Expert Determination
24.1 If any dispute arises in relation to any provision of this
Agreement, then either party may refer the dispute to the
Expert for determination and:
24.1.1 the Expert acts as an expert and not as an
arbitrator;
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24.1.2 the decision of the Expert is final and binding on
the parties; and
24.1.3 the parties must bear the costs of the
determination in such manner as the Expert
directs.
25. International Sale of Goods - Exclusion of Vienna Convention
25.1 The application of the United Nations Convention on
Contracts for the International Sale of Goods (known as the
Vienna Sales Convention 1980) is excluded.
26. Interest
26.1 If a party fails to pay an amount on the due date for
payment, that party must pay to the other party interest at
the Default Rate on that amount, calculated and payable
daily, computed from the due date until the amount is paid
in full.
27. Continuing Obligations
27.1 Each obligation and warranty (except an obligation fully
performed at Completion) continues in force despite
Completion.
28. Reconstruction of Authority
28.1 Where:
28.1.1 there is a reference to an authority, institution,
association or body whether statutory or otherwise
("Authority"); and
28.1.2 the Authority is reconstituted, reconstructed,
privatised, ceases to exist or is replaced or its
powers or functions are transferred to another
entity;
the reference must be read as being to the reconstituted,
reconstructed or privatised entity or an entity established
or constituted in replacement of or which succeeds to the
relevant powers and functions of or which serves
substantially the same purposes or has substantially the
same objects as the Authority.
29. Further Assurance
29.1 Each party must promptly at its own cost do all things
(including executing all documents) necessary or desirable
to give full effect to this Agreement.
30. Severability
30.1 If anything in this Agreement is unenforceable, illegal or
void then it is severed and the rest of this Agreement
remains in force.
31. Entire Understanding
31.1 This Agreement:
31.1.1 is the entire agreement and understanding between
the parties on everything connected with the
subject matter of this Agreement; and
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31.1.2 supersedes any prior agreement or understanding on
anything connected with that subject matter.
31.2 Each party has entered into this Agreement without relying
on any representation by any other party or any person
purporting to represent that party.
32. Variation
32.1 An amendment or variation to this Agreement is not effective
unless it is in writing and signed by the parties.
33. Waiver
33.1 A party's failure or delay to exercise a power or right does
not operate as a waiver of that power or right.
33.2 The exercise of a power or right does not preclude either
its exercise in the future or the exercise of any other
power or right.
33.3 A waiver is not effective unless it is in writing.
33.4 Waiver of a power or right is effective only in respect of
the specific instance to which it relates and for the
specific purpose for which it is given.
34. Costs and Outlays
34.1 Each party must pay its own costs and outlays connected with
the negotiation, preparation and execution of this
Agreement.
34.2 The Purchaser must pay all stamp duty and other government
imposts payable in connection with this Agreement and all
other documents and matters referred to in this Agreement
when due or earlier if requested in writing by the Vendors.
35. Notices
35.1 A notice or other communication connected with this
Agreement ("Notice") has no legal effect unless it is in
writing.
35.2 In addition to any other method of service provided by law,
the Notice may be:
35.2.1 sent by prepaid registered post to the address for
service of the addressee, if the address is in
Australia and the Notice is sent from within
Australia;
35.2.2 sent by prepaid airmail or internationally
recognised delivery service (eg. DHL or Federal
Express) to the address for service of the
addressee, if the address is outside Australia or
if the Notice is sent from outside Australia;
35.2.3 sent by facsimile to the facsimile number of the
addressee; or
35.2.4 delivered at the address for service of the
addressee.
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35.3 A certificate signed by a party giving a Notice or by an
officer or employee of that party stating the date on which
that Notice was sent or delivered under clause 35.2 is prima
facie evidence of the date on which that Notice was sent or
delivered.
35.4 If the Notice is sent or delivered in a manner provided by
clause 35.2, it must be treated as given to and received by
the party to which it is addressed:
35.4.1 if mailed from within Australia to an address in
Australia, on the sooner of actual delivery to
that address as evidenced by Australia Post
documentation or 3 days after mailing;
35.4.2 if mailed to an address outside Australia or
mailed from outside Australia, on the 5th Business
Day (at the address to which it is mailed) after
mailing;
35.4.3 if sent by facsimile and confirmed as transmitted
by the sending machine before 5 p.m. on a Business
Day at the place of receipt, on the day at the
place of receipt it is sent and otherwise at
8.00am on the next Business Day at the place of
receipt; or
35.4.4 if otherwise delivered before 5 p.m. on a Business
Day at the place of delivery, upon delivery, and
otherwise at 8.00am on the next Business Day at
the place of delivery.
35.5 If a Notice is served by a method which is provided by law
but is not provided by clause 35.2, and the service takes
place after 5 p.m. on a Business Day, or on a day which is
not a Business Day, it must be treated as taking place at
8.00am on the next Business Day.
35.6 A Notice sent or delivered in a manner provided by
clause 35.2 must be treated as validly given to and received
by the party to which it is addressed even if:
35.6.1 the addressee has been liquidated or deregistered
or is absent from the place at which the Notice is
delivered or to which it is sent; or
35.6.2 the Notice is returned unclaimed.
35.7 The Vendors' address for service and facsimile number are:
Name : Total Energy Systems Limited
Attention : Kevin Harman
Address : Level 7, 371 Queen Street, Brisbane
Facsimile No. : (07) 3251 0040
With copy to : Total Energy Systems Limited
Attention: General Counsel
Address : 16S.,Pennsylvania Oklahoma City,
Oklahoma USA 73107
Facsimile No. : 405 236 1209
35.8 The Purchaser's address for service and facsimile number
are:
Name : Quantum Explosives Pty Ltd
Attention : Nick Jukes
Address : 146 Kerry Road, Archerfield, Brisbane
Facsimile No. : 07 3275 8637
35.9 A party may change its address for service or facsimile
number by giving Notice of that change to each other party.
35.10 If the party to which a Notice is intended to be given
consists of more than 1 person then the Notice must be
treated as given to that party if given to any of those
persons.
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35.11 Any Notice by a party may be given and may be signed by
its solicitor.
36. Governing Law and Jurisdiction
36.1 The law of Queensland governs this Agreement.
36.2 The parties submit to the non-exclusive jurisdiction of the
courts of Queensland and the Federal Court of Australia.
37. Contaminated Land
37.1 The Purchaser and the Vendors shall at the Purchaser's cost,
commission an investigation to be carried out ("site
investigation") and a report to be prepared ("site
investigation report") in respect of Contamination ***. The
terms of this commission including the extent and nature of
the investigation and report shall be settled by the
Purchaser and the Vendors.
37.2 Any site investigation and site investigation report must be
carried out and prepared by or at the direction of Dames &
Moore Consulting Engineers of 127 Creek Street, Brisbane,
Queensland.
37.3 The site investigation report must clearly state a
reasonable estimate of the costs of doing all things
necessary to avoid any Environmental Liability existing as
at the Completion Date arising directly or indirectly as a
result of or in connection with any Contamination identified
at *** ("Existing Environmental Cost").
37.4 The Purchaser shall, subject to the terms of this Agreement,
indemnify and keep indemnified the Vendors against all
Liability, claims or demands of whatsoever nature which they
may incur, arising in respect of Contamination the subject
of a site investigation and site investigation report, ***.
38. Licence from SEC
38.1 The Purchaser acknowledges and agrees that it will take any
assignment or novation of the licence agreement with SEC as
referred to in clause 2.1.9 subject to and conditional upon
the Purchaser assuming the rights and obligations of TES
under a sublicence to *** ("the *** Sublicence"). The
Purchaser shall pay to SEC that proportion of the monies
paid to the Purchaser by *** under the *** Sublicence equal
to the amount TES would have been required to pay to SEC if
TES was still a party to the Licence agreement with SEC in
respect of the use of the technology by *** under the ***
Sublicence.
39. *** Assets
39.1 The Purchaser acknowledges and agrees that the Vendors may
on or before the Completion Date sell to another party the
*** Assets at a price equal to or higher than the *** and
the Vendors may assign the benefit and obligations of the
*** contract to such party.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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39.2 If the Vendors effect the sale referred to in clause 39.1,
then the *** Assets shall be excluded from this Agreement
and shall be deemed not to form part of the Assets for the
purpose of this Agreement and the Purchase Price shall be
calculated (in accordance with clause 6.1.1) without
reference to the depreciated value of the *** Assets and the
*** contract will not be assigned or novated to or otherwise
benefit the Purchaser and it shall not be a Material
Contract. If the Vendors do not effect a sale of the ***
Assets in accordance with clause 39.1, then the *** Assets
shall form part of the Assets under this Agreement and the
depreciated value of those assets as shown in the books of
account of the Vendors shall be taken into account in
calculating the Purchase Price under clause 6.1.1. The ***
contract shall in that case remain a Material Contract.
40. Confidentiality
40.1 Subject to Completion all information concerning the
Business and the Assets shall remain the confidential
information of the Vendors and shall not be disclosed by the
Purchaser to any person (except with the prior written
consent of the Vendors) except to those of the Purchaser's
employees requiring to know that information to discharge
the Purchaser's obligations under this Agreement, its legal
and financial advisers and bankers and then only if the
recipient agrees prior to receipt to keep the information
disclosed confidential.
40.2 This Agreement and its terms shall be kept confidential by
the parties and shall not be disclosed to any other person
except that party's legal and financial advisers and bankers
and then only if the recipient agrees prior to receipt to
keep the information disclosed confidential. This
restriction does not apply to any disclosure of information:
40.2.1 made by the Vendors or the Purchaser in order to
permit them to comply with their obligations under
this Agreement; or
40.2.2 which is required by law or the rules of a
relevant stock exchange to be communicated to a
person who is authorised by law or by those rules
to receive that information.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
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SCHEDULE 1A
(Clauses 1.1.50 and 12)
Vendors' Warranties
1. Introduction and Information
The statements made in the Introduction are true and correct in
every particular.
2. Names
The Vendors have not allowed or consented to or to the Vendors'
knowledge suffered:
2.1 the use by any other person; or
2.2 the registration as a business name;
of a name similar to the any of the Vendors' names or the
Business Names but the Purchasers acknowledge the existence of a
company unrelated to the Vendors called "Total Mining Systems Pty
Ltd".
3. Litigation and Outstanding Undertakings, Preservation of
Rights
3.1 They are not aware of any facts or circumstances which are
likely to lead to prosecution, litigation or arbitration
involving the Assets or the Business except for the claim
made against TES due to ***.
3.2 The Vendors have full power and has obtained all necessary
consents of all persons and authorities to own, operate and
lease the Assets and to conduct the Business.
3.3 Other than the lessors under the Property Leases and
Operating Leases, the other contracting parties under the
Material Contracts, the mortgagees of any of the Assets and
the Lessors of the Leased Plant and Equipment, the Vendors
have the legal right and power without obtaining the consent
of any person or authority to enter into this Agreement and
to sell the Assets and there is no Encumbrance over them
which will not be discharged on or prior to Completion. The
Parties acknowledge and agree that the Leased Plant and
Equipment subject to leases which are assigned to the
Purchaser shall remain the property of the lessor and may be
subject to encumbrances which do no more than confirm that
ownership. The Purchaser will obtain beneficial ownership
of any Leased Plant and Equipment subject to leases which
are assigned to the Purchaser only in accordance with the
terms of the relevant Financing Leases.
3.4 Subject to Warranty 3.3, the beneficial ownership of the
Assets will, on Completion, vest in the Purchaser free from
all Encumbrances (whether arising by way of statute or
otherwise).
3.5 No statutory or contractual notices have been or will, prior
to the Completion Date, be served in respect of any of the
Assets or the Business which in any material respect impair,
prevent or otherwise interfere with the use of or
proprietary rights in the Assets or the Business.
3.6 The Vendors are not an externally-administered body
corporate under the Corporations Law and steps have not been
taken by any person towards making the Vendors an
externally-administered body corporate;
3.7 A controller (as defined in section 9 of the Corporations
Law) has not been appointed of any of the property of the
Vendors or any steps taken for the appointment of such a
person.
3.8 The Vendors have not been served with a demand under
section 459E of the Corporations Law which it is taken,
under section 459F of the Corporations Law, to have failed
to comply with.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 29 C COPYRIGHT 1999
B/222128
3.9 There are not and will not on the Completion Date, be any
contracts binding upon the Vendors relating to the Business
entered into outside the ordinary course of business.
3.10 The Vendors have produced or made available to the
Purchaser, all Material Contracts, Property Leases and Plant
Leases and, to the best of its knowledge, information and
belief, all employee records (including details of annual
compensation and accrued entitlements), superannuation
plans, labour and employee service contracts, Intellectual
Property rights, licences (including permits, consents,
approvals, authorisations, qualifications and orders) and
documentation relating to threatened or pending litigation,
arbitration or governmental investigations concerning the
Assets or the Business in its possession.
3.11 The Vendors are not aware of any proposals of any
government, governmental body or authority or any
organisation representing the Employees, the implementation
of which (whether by force of law or voluntarily) might
adversely affect the profitability of the Business or
require any substantial capital expenditure by the
Purchaser.
3.12 At the date of this Agreement and at the Completion Date,
there are no claims made, proceedings issued or disputes in
existence involving the Vendors or any other person under
which a party is claiming that an Asset is defective and
that loss or damage has been suffered as a result of the
defect.
4. Financial Matters
4.1 The Business Records have been fully, properly and
accurately prepared, kept and completed in accordance with
usual accounting concepts and practices and in accordance
with the accounting concepts and practices adopted by the
Vendors in the previous 3 financial years.
4.2 The most recent balance sheet and profit and loss account of
the Business:
4.2.1 present a true and fair view of the profit or loss
of the Business for the accounting period expiring
on the Balance Date and the state of affairs of
the Business at the Balance Date;
4.2.2 accurately disclose the assets and liabilities of
the Vendors in respect of the Business at the
Balance Date;
4.2.3 are not affected by any unusual or non-recurring
item; and
4.2.4 take account of all gains and losses, whether
realised or unrealised, arising from foreign
currency transactions.
4.3 Since the Date of this Agreement, no material change
detrimental to the interests of the Purchaser has taken
place in the financial position or business affairs of the
Vendors or the Business.
4.4 The Vendors have not, since the Date of this Agreement,
acquired any assets in respect of the Business other than in
the ordinary course of the Business.
4.5 The Vendors do not in respect of the Business have any debts
or liabilities other than those debts and Liabilities
disclosed in the most recent balance sheet and debts and
Liabilities which:
4.5.1 have been incurred in the ordinary course of the
Business up to the Completion Date; and
4.5.2 are neither:
.1 of an unusual nature; nor
.2 of an unusually large amount.
________________________________________________________________
ASSET PURCHASE AGREEMENT 30 C COPYRIGHT 1999
B/222128
5. Statutory Returns
5.1 The Vendors have completed and lodged all returns and
statements required to be lodged by law with any agency,
department, authority or commission and the returns and
statements so lodged were true and correct in every respect.
5.2 The books, records and registers of the Vendors in respect
of the Business have been kept in accordance with all
statutory requirements.
6. Disclosures
6.1 To the best of the knowledge and belief of the Vendors, all
details relating to the Assets and the Business which would
be material for disclosure to a prudent intending purchaser
of the Assets and the Business have been disclosed to the
Purchaser.
7. Conduct of the Business
7.1 The Business has been conducted in a normal and proper
manner and there has not been any capital expenditure or
agreement to incur capital expenditure since the Balance
Date other than as notified to and approved of by the
Purchasers except for the upgrade of TES 13 and the
conversion to emulsion pumping of the two pump trucks as
part of the *** Operations.
7.2 No schemes or arrangements operated by or relating to the
Vendors in respect of the Business exist, which provide to
any officer, Employee, independent contractor or agent of
the Vendors a commission, remuneration or other payment
calculated by reference to the whole or part of the
turnover, profits or sales of the Vendors or the Business.
8. Employment
8.1 Full disclosure of all remuneration payable to each Employee
has been made to the Purchaser and the Vendors are under no
Liability to pay wages, superannuation payments or provide
any other benefits to any Employee upon retirement, death,
disability, attainment of a specified age or completion of a
specified number of years of service at a rate or in a
manner exceeding that Employee's entitlement under the
legislation, industrial awards and registered industrial
agreements applicable to that Employee other than as
disclosed..
8.2 Full disclosure of all Liabilities for any long service
leave, superannuation payments or any other payments or
liabilities to any Employees due under any industrial award
or state or federal legislation or any contract, agreement
or arrangement has been made and there are no retirement
benefit schemes, pension schemes or other superannuation or
pension arrangements, whether legally enforceable or not,
relating to the Business other than those disclosed in
Schedule 8.
8.3 There are no existing, pending or threatened industrial
disputes, whether between any trade union and the Vendors or
not, relevant to the conduct of the Business and they are
not aware of any claims or other facts or circumstances
which may result in an industrial dispute and the Vendors
have no undisclosed agreements with any trade union.
8.4 After the date of this Agreement and prior to the Completion
Date, there will not be any change to the terms of
employment (including remuneration) of the persons employed
in the Business except pursuant to any award, determination
or legislation.
9. Vehicles, Plant and Equipment
Each item of Plant and Equipment and each item leased by the
Vendors under the Plant Leases:
9.1 is in good repair and condition taking into account normal
wear and tear;
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 31 C COPYRIGHT 1999
B/222128
9.2 has been fully and properly cared for, repaired, maintained
and serviced;
9.3 is of a specification and quality and in a condition to do
satisfactorily the work for which it was designed;
9.4 is within the physical possession of the Vendors; and
9.5 is not a fixture to any real property other than a fixture
which the Vendors have the right to remove.
10. No Contravention of Any Law
10.1 To the best of their knowledge, information and belief, the
Vendors, its officers, agents and Employees have not, within
the 5 years preceding the Completion Date, permitted or
omitted to do any act or thing the commission or omission of
which is, or could be, in contravention of any law and which
could have a material effect on the Assets or the Business.
10.2 The Vendors are not a party to any contract, arrangement or
understanding which is in breach of the Trade Practices Act
1974 or any other law.
11. Contracts
11.1 The Vendors have disclosed all material agreements or
arrangements made in relation to the Business and all of the
contractual documentation relating to any Material
Contracts, the Property Leases, the Financing Leases and the
Operating Leases.
11.2 The Vendors will not, on the Completion Date, be in default
in any material respect, under any Material Contract or have
committed any breach which would entitle the other
contracting party to terminate the Material Contract or be
in default in any material respect under any other contract
entered into by it which is relevant to the Business or be
in default in respect of any other obligations of the
Vendors in respect of the Business.
11.3 The Vendors have not received notice of termination,
rescission, avoidance or repudiation of any Material
Contract.
11.4 At the date of this Agreement, the Vendors have and at the
Completion Date will have, complied with all material terms
and conditions of the Financing Leases and the Operating
Leases, the Property Leases and in particular, terms and
conditions relating to the payment of rent, repair and
reinstatement of the leased Business Premises and the assets
the subject of the Operating Leases or the Financing Leases
and is not, at the date of this Agreement, and will not at
the Completion Date be, in breach, in any material respect,
or have committed any breach which would entitle the lessor
to terminate the lease.
11.5 There is no agreement or arrangement with the Vendors in
respect of the Business in respect of which any person is in
default (without regard to any requirement of notice or
period of grace or both).
11.6 No substantial customer or supplier of the Business has
ceased trading with or supplying to the Business in the
6 months prior to the date of this Agreement or indicated an
intention to cease or substantially reduce trading with or
supply to the Business after the date of this Agreement.
11.7 With the consent of the other contracting party, the Vendors
have the power and is entitled to assign the Material
Contracts to the Purchaser.
11.8 There is no offer, tender or quotation given or made by the
Vendors in respect of the Business, other than in the
ordinary course of the Business, and still outstanding
capable of giving rise to a contract by unilateral act of a
third party.
________________________________________________________________
ASSET PURCHASE AGREEMENT 32 C COPYRIGHT 1999
B/222128
12. Intellectual Property
12.1 The Vendors are not aware of any product or publication of
the Business or any process, drawing or machine carried out
or used in the ordinary course of the Business, constitutes
or may constitute an infringement of a patent, design, trade
mark or copyright of any other person.
12.2 No proceedings have been instituted or are pending or are,
to their knowledge, threatened, which challenge the validity
of the ownership by the Vendors of the Intellectual Property
used in the Business.
12.3 The Vendors have not licensed and are not obliged to licence
anyone to use any of the Intellectual Property used in the
Business other than sublicence for the use of the technology
licence to TES by Slurry Explosives Corporation granted by
TES to *** under the terms of the processing contract
between the parties.
12.4 The Vendors are not aware of any infringing use or
infringement by any other person of the Intellectual
Property used in the Business.
12.5 The Vendors have and will at Completion have, the right to
use all of the software used in the Business at the date of
this Agreement and will provide to the Purchaser at
Completion, licences to use all of the software currently
used in the Business at the date of this Agreement.
12.6 The Vendors own or possess adequate and enforceable licences
or other rights to use all Intellectual Property used in the
Business at the date of this Agreement and has not received
any notice of conflict with the rights of any other person.
12.7 The Vendors have not passed off any of its goods or services
as those of any other person and its own use of Intellectual
Property in respect of the Business does not infringe the
rights of any other person.
13. Licences, Permits Etc.
13.1 The Vendors hold all permits, licences, authorities, rights
to use, approvals, registrations, qualifications, orders and
consents necessary for carrying on the Business
(collectively "Permits") and the Permits are valid and in
good standing and the Vendors are not in breach of any of
them and has not failed to comply with any requirements of
any of them and all material reports, returns and other
information required to be made or given have been duly made
or given.
13.2 There is no circumstance or fact involving the Vendors or
its affairs which may result in the variation in any
material respect, or revocation, of any permit, licence,
authority or consent which it holds in respect of the
Business.
14. Powers of Attorney Etc.
There is no subsisting power of attorney, appointment of agent or
other authority to act on behalf of the Vendors in respect of the
Business given by the Vendors to any person.
15. Land
15.1 All land and interests in land owned, leased, occupied or
used by the Vendors in respect of the Business (other than
in New Zealand and the *** Explosives Reserve) are set
out in Schedule 5.
15.2 The buildings and other improvements constructed on or in
the land owned, leased, occupied or used by the Vendors in
respect of the Business, are in good condition and repair
and fit for the purpose of carrying on the Business and the
land, buildings and other improvements are not subject to
any defect or other matter or circumstance (other than
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 33 C COPYRIGHT 1999
B/222128
Contamination or Environmental Liability) which will,
or may with the lapse of time, materially decrease the
value of the land, buildings or improvements.
16. Inventory
16.1 On Completion the Vendors' Inventory position including
Inventory on order and Inventory in transit or in bond or
held on a consignment basis by customers of the Vendors,
will be fully and accurately reflected in the Business
Records with Inventory being valued on the same basis as for
the most recent balance sheet of the Business.
17. No Unauthorised Disclosures
They have no knowledge of any unauthorised disclosure of any of
the financial or trade secrets or other confidential information
of the Vendors in respect of the Business.
________________________________________________________________
ASSET PURCHASE AGREEMENT 34 C COPYRIGHT 1999
B/222128
SCHEDULE 1B
(Clause 1.1.50)
Purchaser's Warranties
1. The Purchaser represents and warrants to the Vendors that:-
1.1 It has the power to execute and deliver this Agreement and
perform its obligations under or as contemplated by this
Agreement. All necessary corporate and other action has been
taken to authorise such execution, delivery and performance.
1.2 This Agreement constitutes valid and legally binding
obligations enforceable against the Purchaser in accordance
with the terms of this Agreement.
1.3 The execution and delivery by the Purchaser of, the
performance by the Purchaser of its obligations under and the
compliance by the Purchaser with the provisions of this
Agreement shall not contravene any existing applicable law to
which the Purchaser is subject or any deed or arrangement
binding the Purchaser.
1.4 The Purchaser has or will procure the skill, competence,
resources, commitment of experienced personnel available to
perform its obligations under this Agreement.
1.5 No litigation, arbitration, tax claim, dispute or
administrative proceeding is presently current or pending or,
to the Purchaser's knowledge, threatened, which is likely to
have a material adverse effect upon the Purchaser's ability to
perform its financial and other obligations under this
Agreement.
________________________________________________________________
ASSET PURCHASE AGREEMENT 35 C COPYRIGHT 1999
B/222128
SCHEDULE 2
(Clause 1.1.37)
Plant, Equipment, Fixtures and Fittings
Refer to separate bound document.
________________________________________________________________
ASSET PURCHASE AGREEMENT 36 C COPYRIGHT 1999
B/222128
SCHEDULE 3
(Clause 1.1.3.3)
Intellectual Property
Trademark Owner Class Registration
Application No.
_____________________________________________________________________________
TOTALPRILL TES 13 - explosives in the form of 732097
prills or pellets made by
prilling
_____________________________________________________________________________
SX WATERGEL TES 13 - explosives 732100
_____________________________________________________________________________
TOTALGEL TES 13 - explosives 732102
_____________________________________________________________________________
BLACK THUNDER TES 13 - explosives and explosive 764108
compositions including emul-
sion explosives
_____________________________________________________________________________
HI-DRIVE TES 13 - explosives including 774736
packaged explosives and
emulsion explosives
_____________________________________________________________________________
TOTAL TES 13 - explosives, explosive 779004
powders, explosive cart-
ridges, detonating fuses
for explosives, detonating
caps (other than toys),
Detonators, fuses for
explosives and all other
explosive compounds or com-
positions in this class
_____________________________________________________________________________
SCALERITE TES 13 - explosives 722663
_____________________________________________________________________________
TES TOTAL ENERGY TES 13 - explosives 732089
SYSTEMS QUALITY
EXPLOSIVES
_____________________________________________________________________________
SLX600 TES 13 - explosives 732091
_____________________________________________________________________________
TOTALPRIME TES 13 - explosives 732092
_____________________________________________________________________________
TOTALCORD TES 13 - explosives 732093
_____________________________________________________________________________
BREAKRITE TES 13 - explosives 732095
_____________________________________________________________________________
NITREX TES 13 - explosives 732096
_____________________________________________________________________________
BLASTMAX TES 13 - explosives 732098
_____________________________________________________________________________
_____________________________________________________________________________
ASSET PURCHASE AGREEMENT 37 C COPYRIGHT 1999
B/222128
SCHEDULE 4
(Clause 1.1.8)
Business Names
State of Registration
Name Registration No.
________________________________________________________________
Total Mining Chemicals Queensland BN6827251
________________________________________________________________
Total Mining Chemicals Western Australia 0230737C
________________________________________________________________
Total Mining Chemicals Tasmania 114386B
________________________________________________________________
Total Mining Chemicals New South Wales U6377808
________________________________________________________________
Total Mining Chemicals Northern Territory 69186B
________________________________________________________________
Total Mining Chemicals South Australia O427835X
________________________________________________________________
Total Mining Chemicals Victoria 1374989X
________________________________________________________________
________________________________________________________________
ASSET PURCHASE AGREEMENT 38 C COPYRIGHT 1999
B/222128
SCHEDULE 5
(Schedule 1A Warranty 15.1)
Property Leases
Part A - Business Leases
Location Lessor Start Date
____________________________________________________________________________
*** Queensland Investment Corporation 14/04/97
*** Queensland Investment Corporation 22/04/96
*** BHP -Utah Coal Limited and others 30/03/89
(sublessors from the crown of
special lease no. 12/42239)
*** Robert Hector McKenna 08/12/96
*** Sabemo (WA) Pty Ltd 15/09/98
*** The Minister for Mining (WA) 1996 (undated
and unsigned)
Part B - Residential Leases
Lease Location Start Date
_____________________________________________________________________________
Queensland Property Management *** 17/06/97
(Queensland Housing Commission)
Queensland Property Management *** 17/06/97
Queensland Property Management *** 17/06/97
Queensland Property Management *** 13/02/98
Queensland Property Management *** 17/06/97
Clermont Agencies *** 10/98
Ray Hooper Real Estate *** 11/96
North West Realty *** 12/06/98
D & C Bourke *** 20/03/95
Professionals Robe *** 20/03/96
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 39 C COPYRIGHT 1999
B/222128
SCHEDULE 6
(Clause 1.1.31)
Material Contracts
Contract Parties Location Start Date
________________________________________________________________
*** *** *** 08/97
*** *** *** 03/98
*** *** *** 01/10/98
*** *** *** 09/98
*** *** *** 00/11/98
*** *** *** 01/12/98
*** *** *** 01/09/98
*** *** *** 01/08/98
Supply Contract between TES and ***.
Supply Contract between TES and ***.
Processing Agreement between TES and *** dated 22 November 1996.
Ammonium Nitrate Supply Agreement between TES and *** as set out in
a letter dated 19 June 1998.
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 40 C COPYRIGHT 1999
B/222128
SCHEDULE 7
(Clause 1.1.16)
Employees
Management Position Category
________________________________________________________________
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** SIT
Administrative
*** *** Contract
*** *** Part Time
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
*** *** Perm
Operators
BW Govaars Casual
CC O'Niell Perm
D G Medlin Casual
G X Carige Casual
J B Barnicoat Casual
J I Medlin Perm
J J Mallett Casual
JN Hudson Casual
K J Backo Casual
M E Clarke Casual
N E Eaton Casual
P J Platzke Casual
S J M Medlin Casual
V J Lee Casual
W J Eaton Casual
W G Offord Casual
D E Roberts Perm
D P Gallagher Perm
M T Petrovic Perm
C B Wickett Perm
D P Kelly Casual
G H Brown Perm
R L Bingham Casual
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 41 C COPYRIGHT 1999
B/222128
Management Position Category
________________________________________________________________
S C Ruyter Perm
A T McHardy Perm
B V Fisher Perm
D P Hilder Perm
L T Sibeko Casual
P A Miller Casual
P A Morrison Casual
S W Walker Casual
T Park Casual
W B Gardener Perm
D I P Sargeant Casual
P A Galanty Casual
D L White Casual
D K P Stewart Casual
D P Kelly Casual
C B Wickett Perm
Z J Martin Casual
P Wowinski Perm
S R Staunton Perm
T G Hicks Perm
J S Tisdall Casual
M J Page Casual
P Rangi Casual
R Bentley Casual
A G Hundloe Perm
A Parsons Casual
D A Parish Casual
J M Malone Casual
L R Malone Casual
L R Gurr Perm
M J Polsen Casual
P J White Casual
P D Watts Casual
S J Eustace Operators
I R Press Casual
P Huttel Casual
R B Johnson Casual
W J Sutherland Perm
A S Brown Perm
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES
OF SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 42 C COPYRIGHT 1999
B/222128
SCHEDULE 8
(Schedule 1 Warranty 8.2)
Retirement Benefit Schemes, Pension Schemes
and Other Superannuation or Pension Arrangements
The following public offer accumulation fund:
Colonial Master Fund Superannuation Fund (SFN 2975/329/46)
________________________________________________________________
ASSET PURCHASE AGREEMENT 43 C COPYRIGHT 1999
B/222128
SCHEDULE 9
(Clause 1.1.33)
Necessary Approvals
EXPLOSIVE AND ENVIRONMENTAL LICENCES
Location License to License to Environmental Others
Manufacture Store License
Explosives Explosives
_________________________________________________________________________
Queensland- Licence to
General Import Explo-
sives in
Queensland
Date Granted:
27-08-98
Expiry Date:
30-06-99
Licence to Sell
Explosives in
Queensland
Date Granted:
27-08-98
Expiry Date:
30-06-99
Licence No.:
1236
Licensee: TES
___________________________________________________________________________
*** General Licence General Licence Licence appears
to Manufacture Store More than to be required
Explosives 250KG for the activ-
Dated Granted: Date Granted: ities at this
27-08-98 27-08-98 site
Expiry Date: Expiry Date:
30-06-99 30-06-99
Licence No.: License No.
0040 1236
Licensee: TES Licensee: TES
___________________________________________________________________________
*** Licences are Licences are
required for required for
this site this site
____________________________________________________________________________
*** Licence required Licence to Store
if TES is Explosives/
currently manu- Magazine License
facturing on - Magazine T3
site 50,000Kg
Dated Granted:
04-12-98
____________________________________________________________________________
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 44 C COPYRIGHT 1999
B/222128
Location License to License to Environmental Others
Manufacture Store License
Explosives Explosives
___________________________________________________________________________
Expiry Date:
01-12-99
Licensee: TES
License to Store
Explosives -
Magazine DET
Capacity 2,000
Date Granted:
17-01-99
Expiry Date:
16-01-2000
Licensee: TES
____________________________________________________________________________
*** Licences have Licenses have
expired expired
____________________________________________________________________________
AUTHORISATIONS FOR EXPLOSIVES
___________________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
_____________________________________________________________________________
New South Wales
_____________________________________________________________________________
PRILL BLENDED ANFO 0082/1.1D 26-4-94
BESTON (BST) BOOSTERS 0042/1.1D 21-8-96
DETAGEL CONTINUOUS PRESPLIT 0241/1.1D 30-10-96
______________________________________________________________________________
New Zealand
_____________________________________________________________________________
FRAGMAX 60-100 0332/1.5D 13-3-97
ERT ROGEL F PRESPLIT/RIOSPLIT 0241/1.1D 13-3-97
DENASA PREMADETS 0360/1.1B 13-3-97
TROJAN BOOSTER 0042/1.1D 13-3-97
TOTAL CORD 3 0065/1.1D 13-3-97
______________________________________________________________________________
Northern Territory
______________________________________________________________________________
SX-WATERGELS 0332/1.5D 7-2-94
ORANGE CAP BOOSTER 23-3-94
GREEN CAP BOOSTER 23-3-94
PRILL BLENDED ANFO 0222/1.1D 20-4-94
TOTAL PRIME 23-1-97
TOTALCORD 23-9-94
_____________________________________________________________________________
Queensland
_____________________________________________________________________________
ANFO ISL, L, TOE PACK 0082/1.1D 31-5-90
_____________________________________________________________________________
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM
THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR CONFIDENTIAL
TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED
INFORMATION HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES
AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH REQUEST.
_____________________________________________________________________________
ASSET PURCHASE AGREEMENT 45 C COPYRIGHT 1999
B/222128
_____________________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
_____________________________________________________________________________
AU 1000 0082/1.1D 15-3-90
AU 220 0082/1.1D 7-12-90
BESTON (BST) BOOSTERS / AND/OR 0042/1.1D 18-10-96
TOTALPRIME
BLASTRITE 0241/1.1D 15-3-90
BREAKRITE 0241/1.1D 15-3-90
DETAGEL HS DETAGEL PRE-SPLIT 0241/1.1D 1-8-85
1.25 X 8 (32X)
DETAGEL HS DETAGEL PRE-SPLIT 0241/1.1D 1-8-85
EMULEX 500 SERIES 0241/1.1D 13-3-92
EMULEX 700 SERIES 0241/1.1D 13-3-92
EMULINE - CONTINUOUS PRE-SPLIT 0241/1.1D 15-3-90
FANEL DETS MS, LP TRUNK 0030/1.1B 15-9-90
FRAG & FRAGMAX 0030/1.1B 15-9-90
HEF EMULSION FOR HANFO 24-8-89
HEXAPOUR AND HEXAPOUR SD 0082/1.1D 6-7-89
HX SERIES 110, 120, 130, 135- 0082/1.1D 17-8-89
HX HEAVY ANFO HX
HXSERIES 110, 120, 130, 135- 0082/1.1D 17-8-89
HX 130 and 301
HYDROMITE 600 SERIES 0241/1.1D 13-3-92
MINERITE 0241/1.1D 15-3-90
MS CONNECTORS-(EB) PRIMADET MS C 15-3-90
MS CONNECTORS(EB) PRIMADET MS C 15-3-90
MS CONNECTORS-(EB) PRIMADET MS C 15-3-90
MS CONNECTORS-(EB) PRIMADET MS C 15-3-90
MS CONNECTORS-(EB) PRIMADET MS50 15-3-90
MS CONNECTORS-(ETI) DETINEL MS CO 15-3-90
MS CONNECTORS-MS230 CONNECTORS 15-3-90
MS CONNECTORS-P/DET MSC CONN MS 15-3-90
MS CONNECTORS-P/DET MSC CONN MS 15-3-90
PENTACORD 3PE, 5PE, 10PE- 0065/1.1D 15-3-90
10PE CORD
________________________________________________________________
ASSET PURCHASE AGREEMENT 46 C COPYRIGHT 1999
B/222128
____________________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
____________________________________________________________________________
PENTACORD 3PE, 5PE, 10PE - 5PE 0065/1.1D 15-3-90
CORD NEW
PRILL BELNDED ANFO- 0082/1.1D 24-8-94
ROCK CRUSHER BOOSTER 0042/1.1D 27-8-92
ROCK STAR ELECTRIC DETONATORS 0030/1.1B 15-1-90
SX-WATERGEL-SX550 COAL DUST SL 0241/1.1D 25-5-89
SX 20 0241/1.1D 7-12-90
14-10-97
SX 500, 550, 600 0241/1.1D 14-10-97
TOTALCORD (3, 5, 10 GM) 0065/1.1D 24-8-94
TOTALGEL 60-100 332/1.5D 19-3-97
SX WATERGEL TRIMRITE - TRIMRITE 0241/1.1D 14-10-97
25MM X 40
TRIMRITE - TRIMRITE 25MM X 44 0241/1.1D 5-10-90
RIOGEL 2F-25 AND RIOGEL G 31-5-90
RIOGEL TTX 31-5-90
DETAGEL PRE SPLIT 18-10-96
TOTAL GEL 15-12-94
______________________________________________________________________________
South Australia
______________________________________________________________________________
DETAGEL PRESPLIT 0241/1.1D 16-4-93
DETAGEL 0241/1.1D 16-4-93
ORANGE CAP CAST BOOSTER (454G) 0042/1.1D 16-4-93
GREEN CAP CAST BOOSTER (151G) 0042/1.1D 19-4-93
SCOTCH CORD 0065/1.1D 19-4-93
SCALERITE 0241/1.1D 16-6-97
BREAKRITE 0241/1.1D 16-6-97
TOTALPRIME 0241/1.1D 5-11-96
TOTALCORD-3 0065/1.1D 15-8-94
TOTALCORD-5 0065/1.1D 15-8-94
TOTALCORD-10 0065/1.1D 15-8-94
A"CORD 0065/1.1D 28-1-93
______________________________________________________________________________
Western Australia - Explosives
& Dangerous Goods Act 1961 and
Explosive Regulations 1963
_____________________________________________________________________________
_____________________________________________________________________________
ASSET PURCHASE AGREEMENT 47 C COPYRIGHT 1999
B/222128
____________________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
____________________________________________________________________________
ANFO-BLASTING AGENT 0222/1.1D 28-4-94
AU100 WATERGEL 0332/1.5D
AU200 WATERGEL 0332/1.5D
AU600 WATERGEL 0332/1.5D
BLACK CAP CAST BOOSTER (340G) 0042/1.1D 31-3-94
BLASTRITE 0241/1.1D
CBS A-CORD DETONATING CORD 0065/1.1D
CXA MS CONNECTORS 0360/1.1B
DETAGEL-1.25X8 0241/1.1D
DETAGEL 1X8 0241/1.1D
DETAGEL PRE-SPLIT 0241/1.1D
DETONATORS-DET.NITRONOBELDY 0029/1.1B
EMULEX 500 SERIES-EMULEX 510 0241/1.1D 7-10-92
1.25X12
EMULEX 500 SERIES-EMULEX 520 0241/1.1D 7-10-92
1.5X12
EMULEX 700 SERIES-EMULEX 720 0241/1.1D 7-10-92
2.5X16
EMULEX 700 SERIES-EMULINE 0241/1.1D 7-10-92
1.25 INCH
ENSIGN BICKFORD H.D. PRIMACORD 0065/1.1D
ETINEL NON-ELECTRIC DETONATORS 0360/1.1B
ETINEL NON-ELECTRIC DETONATORS 0360/1.1B
FANEL NON-ELECTRIC DELAY 0360/1.1B
DETONATORS
FRAGMAX SERIES 0332/1.5D
HEF90FRAGMAX
GREEN CAP CAST BOOSTER (151G) 0042/1.1D 31-3-94
HEXAPOUR 0332/1.5D
MINERITE 2 0241/1.1D
NITREX -*** 0082/1.1D
NONEL PRIMADETS (EB) PRIMADET 0360/1.1B
SL P1
NONEL PRIMADETS 12M PRIMADET 0360/1.1B
P15 M
NONEL PRIMADETS 3.6M P/DET 0360/1.1B
P1 MS 25 1
NONEL PRIMADETS 3.6M PRIMADET
P8 M 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P1 MS 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P13 M 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P14 M 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P15 M 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P2 MS 0360/1.1B
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF
SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 48 C COPYRIGHT 1999
B/222128
__________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
___________________________________________________________________
NONEL PRIMADETS 6M PRIMADET P4 MS 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P5 MS 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P6 MS 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P7 MS 0360/1.1B
NONEL PRIMADETS 6M PRIMADET P8 MS 0360/1.1B
ORANGE CAP BOOSTER (454G) 0042/1.1D 31-3-94
PENTACORD 3PE 0042/1.1D
PENTACORD 5PE 0065/1.1D
PRIMADET MS CONNECTORS 0360/1.1B
PRIMADET TRUNKLINE DELAYS 0360/1.1B
3.6M P/DET NTD MS17
PRIMADET TRUNKLINE DELAYS 0360/1.1B
3.6M P/DET NTD MS42
PRIMADET TRUNKLINE DELAYS 0360/1.1B
6M P/DET NTD MS100
PRIMADET TRUNKLINE DELAYS 0360/1.1B
6M P/DET NTD MS25 2
PRIMADET TRUNKLINE DELAYS 0360/1.1B
9M (EB) NTD P4 MS10
RIOGEL 2SX200 0241/1.1D
RIOGEL 32X200 0241/1.1D
RIOGEL 55X400 0241/1.1D
RIOGEL 55X400 0241/1.1D
ROCK CRUSHER BOOSTERS 454G 0042/1.1D 7-10-92
ROCK CRUSHER BOOSTERS 908G 0042/1.1D
ROCK STAR DETONATORS 0030/1.1B
SCOTCH CORD 0065/1.1D
SHOCK STAR MS DELAYS DETONATORS 0360/1.1B 19-6-92
3.6M SOCKSTAR P8
SHOCK STAR MS DELAYS DETONATORS 0360/1.1B 19-6-92
6M SHOCKSTAR P3 M
SHOCK STAR SURFACE DELAY NON- 0360/1.1B 31-3-94
ELECTRIC
SILVER NUGGET CAST BOOSTER 0042/1.1D 31-3-94
________________________________________________________________
ASSET PURCHASE AGREEMENT 49 C COPYRIGHT 1999
B/222128
_________________________________________________________________
Description UN No & Class Date of Gazettal
(where available)
_________________________________________________________________
TRIMITE 0241/1.1D 12-7-93
WHITE CAP BOOSTER (907G) 0042/1.1D 31-3-94
_________________________________________________________________
VEHICLE - EXPLOSIVES AND DANGEROUS GOODS LICENCES
__________________________________________________________________________
Date Expiry Licence Licences Authority/
Vehicle/License Granted Date No. State
___________________________________________________________________________
***
___________________________________________________________________________
793 EOD 01-10-98 15-09-99 38/056832/8 TES Dangerous
Ford Courier Goods Act
1975 (NSW)
Carriage of
Explosives
1000KG of 1.1D
Explosives
___________________________________________________________________________
379 CJT 27-08-98 30-06-99 1040 TES Explosives
Volvo FL 10 Act 1952
Pump (QLD)
Carriage of
Explosives
9.3 Tonnes of
1.5D Watergel
______________________________________________________________________________
379 CJT 27-08-98 30-06-99 1161 TES Explosives
Volvo FL 10 Act 1952
(QLD)
Manufacture
of Explosives
on/by vehicle
_____________________________________________________________________________
026 CXN 27-08-98 30-06-99 1176 TES Explosives
Volvo FL 10 Act (1952)
Pump (QLD)
Carriage of
Explosives
Above 10
tonnes-
rigid body
_____________________________________________________________________________
127 CCO 27-08-98 30-06-99 1160 TES Explosives
Volvo FL 10 Act 1952
Bowl 2 (QLD)
Carriage of
Explosives-
semi-trailers
_____________________________________________________________________________
127 CCO 27-08-98 30-06-99 1160 TES Explosives
Volvo FL 10 Act 1952
Bowl 2 (QLD)
Manufacture
of Explosives
on/by vehicle
_____________________________________________________________________________
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF
SUCH REQUEST.
__________________________________________________________________________
ASSET PURCHASE AGREEMENT 50 C COPYRIGHT 1999
B/222128
____________________________________________________________________________
Date Expiry Licence Licences Authority/
Vehicle/License Granted Date No. State
____________________________________________________________________________
732 DDH 27-08-98 30-06-99 0804 TES Explosives
Volvo Act 1952
(QLD)
Carriage of
Explosives
above 10tonnes
- -rigid body
______________________________________________________________________________
732 DDH 27-08-98 30-06-99 1024 TES Explosives
Volvo Act 1952
(QLD)
Manufacture
of Explosives
on/by Vehicle
______________________________________________________________________________
563 CWR 27-08-98 30-06-99 1107 TES Explosives
Holden\Rodeo Act 1952
(QLD)
Carriage of
Explosives
up to 1000kg
_____________________________________________________________________________
668 DRA 27-08-98 30-06-99 1197 TES Explosives
Nissan Patrol Act 1952
(QLD)
Carriage of
Explosives
up to 1000kg
_____________________________________________________________________________
135 DZJ 27-08-98 30-06-99 1015 TES Explosives
Volvo Act 1952
(QLD)
Manufacture of
Explosives
on/by Vehicle
_____________________________________________________________________________
986 QCT 24-9-99 03-10-99 NA TES Dangerous Goods by
Trailer Road Act 1984 &
Regulations (QLD)
Carriage of
Dangerous
Goods
_____________________________________________________________________________
***
_____________________________________________________________________________
9BR 195 19-06-98 18-06-99 NA TES Explosives and
Mazda Dangerous
Goods Act
Licence to 1961 (WA)
Convey Blasting
Agent Mixing
Vehicles
_____________________________________________________________________________
9MA 964 23-9-98 22-09-99 NA TES Explosives &
Volvo Dangerous
Goods Act
Licence to 1961 (WA)
Convey
Explosives
_____________________________________________________________________________
8KP 430 31-12-97 30-12-98 NA TES Explosives &
Dangerous
______________________________________________________________________________
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM
THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF
SUCH REQUEST.
________________________________________________________________
ASSET PURCHASE AGREEMENT 51 C COPYRIGHT 1999
B/222128
______________________________________________________________________________
Date Expiry Licence Licences Authority/
Vehicle/License Granted Date No. State
______________________________________________________________________________
Licence to Goods Act
Convey Blasting 1961 (WA)
Agent Mixing
Vehicles
_____________________________________________________________________________
9MU 330 13-08-97 19-08-98 NA TES Explosives &
Dangerous
Licence to Goods Act
Convey Blasting 1961 (WA)
Agent Mixing
Vehicles
_____________________________________________________________________________
1ACP 119 03-02-98 19-02-99 NA TES Explosives &
Dangerous
Licence to Goods Act
Convey Blasting 1961 (WA)
Agent Mixing
Vehicles
____________________________________________________________________________
8PD 912 26-01-98 25-01-99 NA TES Explosives &
Dangerous
Licence to Goods Act
Convey Blasting 1961 (WA)
Agent Mixing
Vehicles
____________________________________________________________________________
______________________________________________________________________
ASSET PURCHASE AGREEMENT 52 C COPYRIGHT 1999
B/222128
SCHEDULE 10
(Clause 1.1.35)
*** Assets
ASSET DESCRIPTION TAG NUMBER
________________________________________________________________
Handport FM 138-156 mhz Radio
Tait T3010 Hand Held Portable Radio
Evacuation Alarm and Siren
2 Acid Tanks
Powder Coat 2 SS Acid Tanks
AN Store
Process Building
Amenities Building
Nokia 232 Cellphone
4 Drawer Filing Cabinet
2 Draw Filing Cabinet
Cat Pump 2259
Ingersoll 100-80 CPX-125 Pump 2251
Ingersoll 65-40 CPX-125 Pump 2252
Container-Vivian Containers
Site Upgrade for Environmental purpose
Storage Tank-4 tonne SX 2258
Solution Volumatic Tank 2.5mt 2246
Auger EX KG 6" 2248
Four Wheel Drive
Isotanker
Magazines
Transfer Pump
Shipping Containers
HiLux
Isuzu Bowl
Misc Plant & Equip
Mono Pump
Sheds
SX Plant
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM
THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF SUCH
REQUEST.
________________________________________________________________________
ASSET PURCHASE AGREEMENT 53 C COPYRIGHT 1999
B/222128
SCHEDULE 11
(Clause 1.1.36)
Operating Leases
Lease Location/Item Start Date
_____________________________________________________________________________
Ricoh Business Centre *** 28/08/98
R Duncan Pty Ltd *** 04/97
R Duncan Pty Ltd *** 10/03/98
R Duncan Pty Ltd *** 01/08/96
R Duncan Pty Ltd *** 01/08/96
R Duncan Pty Ltd *** 01/08/96
R Duncan Pty Ltd *** 01/08/96
R Duncan Pty Ltd ***
R Duncan Pty Ltd ***
R Duncan Pty Ltd ***
R Duncan Pty Ltd ***
R Duncan Pty Ltd ***
James Hardies Building Systems *** 10/04/98
James Hardies Building Systems *** 02/04/98
James Hardies Building Systems *** 1993
James Hardies Building Systems *** 05/05/94
James Hardies Building Systems *** 05/05/94
AGC *** 28/11/97
The Capital Corporation Limited *** 14/08/98
ACN 065 745 735 (AT & T Capital)
The Capital Corporation Limited *** 11/06/96
ACN 065 745 735 (AT & T Capital)
The Capital Corporation Limited *** 10/09/97
ACN 065 745 735 (AT & T Capital)
The Capital Corporation Limited *** 22/07/97
ACN 065 745 735 (AT & T Capital)
Red Australia *** 01/08/98
Red Australia *** 01/08/98
Red Australia *** 21/06/95
Western Portables ***
Brambles ***
Brambles ***
Brambles ***
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED FROM
THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION.
THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF
SUCH REQUEST.
_____________________________________________________________________
ASSET PURCHASE AGREEMENT 54 C COPYRIGHT 1999
B/222128
Schedule 12
(Clause 1.1.24)
Financing Leases
LESSOR ASSET No. DESCRIPTION
____________________________________________________________________
AT & T CAPITAL 0004527000 SELEX PHOTOCOPIER
295002.000
SANWA 1B0049279 NISSAN DX 4 X 4 UTE
960008.000 REG 811 DOQ
SANWA 1B0049287 NISSAN DX 4 x 4 UTE
960009.000 REG 9MA 734
SANWA 1B0049295 NISSAN PATROL WAGON
960010.000 REG 564 DNZ
SANWA 1B0050472 NISSAN PATROL RX WAGON
960012.000 REG 9KA 303
SANWA 1B0050499 NISSAN PATROL RX WAGON
960013.000 REG 9KA 302
SANWA 1B0050501 NISSAN PATROL LEAF
960014.000 SPRING CAB CHASS
REG 668 DRA
SANWA 1B0050510 NISSAN PATROL LEAF
960015.000 SPRING CAB CHASS
REG 9JX 912
ESANDA 449521594 MITSUBISHI CANTER
960004.000 DEWATERING UNIT
REG 060 DMK
ESANDA 449546492 HOLDEN BS COMMODORE
960006.000 ACCLAIM V6 3.8L
REG 172 DMI
ESANDA 449547305 NISSAN PATROL ST TURBO
295001.000 WAGON
ADVANCE LEASING 85651/001 TNT KOMATSU FORKLIFT
970821.000 MODEL FD25T-12
ORIX 888478 MITSUBISHI VERADA
970816.000 E1 SEDAN
ORIX 934607 MITSUBISHI KE VERADA
970815.000 E1 AUTO SEDAN
GE CAPITAL CEO712S1 VOLVO BOWL TRUCK B#4
950001.000
GE CAPITAL CEO712S2 MITSUBISHI CANTER
950004.001 DEWATERING UNIT
GE CAPITAL CEO712S3 SANDERSON TELECOPIER
940004.000
GE CAPITAL CEO713S1 93 VOLVO FL10 PUMP
940005.000 REG 379 CJT P#3
GE CAPITAL CEO713S2 HOLDEN RODEO 1995
950052.000
GE CAPITAL CEO714S1 ISUZU PUMP BOWLER
940006.000 TRUCK
REG 8PD 912 TES#11
GE CAPITAL CEO714S3 VOLVO FL 10
950004.000 REG 026 CXN B#5(BODY)
GE CAPITAL CEO714S4 KOMATSU FD3-5 FORKLIFT
950005.000 4 TONNE
GE CAPITAL CEO714S5 ISUZU FV7 1400 MEDIUM
960001.000 CAB CHASSIS
REG 8PD 912
GE CAPITAL CEO714S6 NISSAN PATROL 4 x 4
960002.000 TRAY TOP UTE
_________________________________________________________________________
ASSET PURCHASE AGREEMENT 55 C COPYRIGHT 1999
B/222128
REG 9GB 225
GE CAPITAL CEO714S6 NISSAN PATROL 4 x 4
960003.000 TRAY TOP UTE
REG 9GB 162
GE CAPITAL CEO714S7 MITSUBISHI FS42855
960005.000 8 x 4 TRUCK 1996
REG 91H 282
GE CAPITAL CEO922S2 COMPUTER SYSTEM
960011.000 BRISBANE OFFICE
GE CAPITAL CEO922S3 CHASSIS TRIPLE P
970817.000 EXPLOSIVES TRUCK
GE CAPITAL CEO922S3 BODY TRIPLE P
970818.000 EXPLOSIVE TRUCK
GE CAPITAL CEO922S4 TRIPLE P EXPLOSIVE
970820.000 TRUCK
GE CAPITAL CEO922S4 CHASSIS TRIPLE P
970819.000 EXPLOSIVES TRUCK
GE CAPITAL CEO922S5 VOLVO FL10 CAB
980028.000 CHASSIS
CAPITAL COMMERCIAL LC/1/4/5966
FINANCE LTD. 950038.000 HEF STORAGE
950024.000 FIRE HYDRANTS X 2
930049.000 ISUZU ANFO BLOWER
8EV02 TRUCK
920038.000 MAC HEAVY ANFO TRUCK
REG 296 CTE
920024.000 VOLVO F7-P2 2ND HAND
CHASSIS REG 9ET 727
CAPITAL COMMERCIAL LC/1/4/6161
FINANCE LTD. LC/1/4/6532
LC/1/6/5967
950006.000 BOWL PUMP TRUCK TES 14
REG 1AJR033
CAPITAL COMMERCIAL LC/1/6/6141 ISUZU BOWL PUMP TM
FINANCE LTD. 950007.000 327 B#7
ZAMOFAST 950002.000 VOLVO BOWL TRUCK
REG 9CO 347 #3
QLD WEIGHING 960007.000 25M CONCRETE WEIGH-
MACHINES PTY LTD BRIDGE SN 16438
________________________________________________________________
ASSET PURCHASE AGREEMENT 56 C COPYRIGHT 1999
B/222128
EXECUTED as an agreement.
________________________________ ______________________________
EXECUTED by TOTAL ENERGY SYSTEMS
LIMITED ACN 010 876 150 in
accordance with section 127 of
the Corporations Law:
/s/ R. A. Rogers /s/ Peter Ivan Felix Geroff
Director/Company Secretary Director
R. A. Rogers
Name of Director/Company Name of Director (BLOCK
LETTERS)
Secretary
Peter Ivan Felix Geroff
_______________________________ _______________________________
EXECUTED by T.E.S. MINING
SERVICES PTY LTD ACN 010 175 676
in accordance with section 127
of the Corporations Law:
/s/ R. A. Rogers /s/ James L. Wewers
Director/Company Secretary Director
R. A. Rogers
Name of Director/Company Name of Director (BLOCK LETTERS)
Secretary (BLOCK LETTERS)
James L. Wewers
______________________________ _______________________________
EXECUTED by TOTAL ENERGY SYSTEMS
(INTERNATIONAL) PTY LTD ACN 084
562 24 in accordance with
section 127 of the Corporations
Law:
/s/ R. A. Rogers /s/ Peter Ivan Felix Geroff
Director/Company Secretary Director
R. A. Rogers
Name of Director/Company
Secretary (BLOCK LETTERS)
Peter Ivan Felix Geroff
______________________________ _______________________________
EXECUTED by TOTAL ENERGY SYSTEMS )
(NZ) LIMITED DN/682396 in )
accordance with resolution of a )
meeting of its board of directors )
/s/ David Shear /s/ James L. Wewers
Director/Company Secretary Director
David Shear
Name of Director/Company Name of Director (BLOCK LETTERS)
Secretary
James L. Wewers
______________________________ _______________________________
____________________________________________________________________
ASSET PURCHASE AGREEMENT 57 C COPYRIGHT 1999
B/222128
______________________________ ______________________________
EXECUTED by QUANTUM EXPLOSIVES )
PTY LIMITED ACN 087 119 515 in )
accordance with section 127 of )
the Corporations Law:
/s/ Wrixon Frank Gasteen /s/ Nicholas Neil Jukes
Director/Company Secretary Director
Wrixon Frank Gasteen
Name of Director/Company Name of Director (BLOCK LETTERS)
Secretary
Nicholas Neil Junes
______________________________ _______________________________
________________________________________________________________
ASSET PURCHASE AGREEMENT 58 C COPYRIGHT 1999
B/222128
ANNEXURE A
Purchaser's Parent Agreement
________________________________________________________________
ASSET PURCHASE AGREEMENT 59 C COPYRIGHT 1999
B/222128
DEED OF GUARANTEE
By
THIESS CONTRACTORS PTY LIMITED
ACN 010 221 486
("Guarantor")
in favour of
TOTAL ENERGY SYSTEMS LIMITED
ACN 010 876 150,
T.E.S. MINING SERVICES PTY LTD
ACN 010 975 676,
TOTAL ENERGY SYSTEMS (INTERNATIONAL) PTY LTD
ACN 084 562 247
and
TOTAL ENERGY SYSTEMS (NZ) LIMITED
DN/682396
("THE VENDORS")
LEGAL & CONTRACT SERVICES
THIESS CONTRACTORS PTY LIMITED
po Box 199 Archerfield Qld 4108
Ph: (07) 3275-8563 Fax: (07) 3275-8633
email address: rsinclair@thiess.com.au
C Copyright 1999
DEED OF GUARANTEE
THIS DEED is made on the seventh day of May 1999.
BY
THIESS CONTRACTORS PTY LIMITED (ACN 010 221 486) of 146 Kerry Road,
Archerfield, Queensland, Australia (with its successors and permitted
assigns "Guarantor")
IN FAVOUR OF
Total Energy Systems Limited ACN 010 876 150, T.E.S. Mining Services
Pty Ltd ACN 010 975 676, Total Energy Systems (International) Pty Ltd
ACN 084 462 247 and Total Energy Systems (NZ) Limited DN/682396
(together with their successors and permitted assigns "Vendors").
RECITALS
A Quantum Explosives Pty Limited ACN 087 119 515 ("the Purchaser")
is a wholly owned subsidiary of the Guarantor.
B The Vendors are in the business of manufacturing and supplying
bulk and packaged explosives and blasting agents and other
products and services to the mining, quarrying, civil
engineering and other industries in Australia, New Zealand and
elsewhere ("Business").
C At the request of the Guarantor, the Purchaser has entered an
asset purchase agreement with the Vendors dated the seventh day
of May 1999 for the purchase of the assets used by the Vendors
in the conduct of the Business ("Agreement").
D It is a condition precedent to performance under the Agreement
that the Guarantor enter into and execute this Deed.
OPERATIVE
1. Guarantee
The Guarantor guarantees to the Vendors the due and punctual
performance of all terms, provisions and conditions contained in
the Agreement on the part of the Purchaser to be performed
("Guaranteed Obligations").
2. Indemnity
The Guarantor indemnifies the Vendors and agrees to keep the
Vendors indemnified from and against all loss, damage, costs and
expenses suffered or incurred by any of the Vendors directly or
indirectly by reason of:
2.1 the Purchaser's default, breach or non-performance or non-
observance by the Purchaser of any of the Guaranteed
Obligations; and
2.2 any matter which the Purchaser has warranted to the Vendor
not being as warranted;
provided that in no circumstance shall the Guarantor be liable
under this Guarantee and Indemnity to any greater extent than
the Purchaser would have been liable to the Vendors for such
default, breach, non performance, non observance or failure of
warranty in accordance with the terms of the Agreement if the
Agreement was otherwise of full force and effect against the
Purchaser.
3. Enforcement
3.1 If:
3.1.1. The Purchaser defaults in the due and punctual
performance of any of the Guaranteed Obligations
and at any time after that default the Vendors
give written notice to the Guarantor of that
default and of the Vendors' intention to
exercise their rights under this Deed in respect
of that default; and
3.1.2 within 30 days of the giving of that notice, the
Purchaser (or the Guarantor on its behalf) has
failed to remedy the default,
the Guarantor shall (without further notice from the
Vendors) immediately remedy or cause to be remedied the
default.
1
4. Obligations absolute and unconditional
The Guarantor remains liable under this Deed even if:
4.1 there is any modification of the liabilities of the
Purchaser under this Agreement;
4.2 any arrangement is made between the Vendors and the
Purchaser with or without assent of the Guarantor;
4.3 there is any alteration in the obligations undertaken by
the Purchaser under the Agreement including, without
limitation any forbearance as to payment, time, performance
or otherwise;
4.4 the Purchaser:
4.4.1 enters into any composition or scheme of
arrangement with creditors; or
4.4.2 enters into liquidation or are wound up;
4.5 The Vendors cannot, for any reason, enforce the Agreement
against the Purchaser;
4.6 The Vendors have not, for any reason, exercised or do not
exercise all or any one or more of their rights or powers
against the Purchaser;
4.7 The Vendors grant any time or other indulgence or
concession to the Purchaser;
4.8 The Vendors compound, compromise, release, abandon, waive,
vary, relinquish or renew any of the Vendors' rights
against the Purchaser, or waive or vary any other provision
of the Agreement; or
4.9 Any part of the Purchaser's liability to the Vendors is
satisfied by a payment which (whether because it is a
preference or for any other reason) the Vendors must pay
back or otherwise lose the benefit of, to the extent of the
repayment or benefit so lost.
5. Duration of Deed
This Deed shall continue and shall remain in full force until
all of the Guaranteed Obligations or any other obligation or
liability arising under the Agreement have been fully performed,
observed and satisfied by the Purchaser or the Guarantor.
6. Service of notices
6.1 Any notice required pursuant to this Deed must be:
6.1.1 in writing; and
6.1.2 either sent by facsimile transmission, certified
mail or delivered by hand.
6.2 A notice to the Vendors must be addressed to the Vendors at
care of LSB Industries Inc 16 S Pennsylvania Avenue,
Oklahoma City, Oklahoma, USA - facsimile no. 405 236 1209
or such other address as may be notified.
6.3 A notice to the Guarantor must be addressed to the
Guarantor at the address on page 1 of this Deed or such
other address as may be notified or to facsimile number 07
3275 8633.
6.4 A notice sent by certified mail or delivered by hand is
effective upon receipt.
6.5 A notice sent by facsimile transmission is effective upon
transmission unless it is transmitted after the close of
normal business hours, or on a Saturday, Sunday or public
holiday, in which case it is effective on the opening of
business on the next business day at the intended place of
receipt.
7. Representations
The Guarantor acknowledges that it has not been induced to enter
into this Agreement by virtue of any representation by or on
behalf of the Vendors but has acted entirely on its own
responsibility.
8. Costs
Each party shall pay its own legal costs of and incidental to
the preparation and execution of this Deed but any stamp duty
payable thereon shall be paid by the Guarantor.
2
9. Governing Law and Jurisdiction
9.1 This Deed and all questions arising in connection with it
are governed by and will be construed according to the laws
from time to time in force in the State of Queensland and
the Guarantor hereby submits to the jurisdiction of those
courts having jurisdiction in the State of Queensland.
10. Construction
A reference in this Deed to the Vendors includes a reference to
the Vendors collectively and to each of the Vendors separately.
3
Executed as a Deed
THE COMMON SEAL of THIESS CONTRACTORS PTY LTD )
is hereunto affixed in accordance with its )
Constitution: )
____________________________ ________________________________
Director Director/Secretary
_____________________________ ________________________________
Name (printed) Name (printed)
4
ANNEXURE B
Vendor's Parent Guarantee
________________________________________________________________
ASSET PURCHASE AGREEMENT 60 C COPYRIGHT 1999
B/222128
DEED OF GUARANTEE
By
LSB INDUSTRIES INC
("Guarantor")
in favour of
QUANTUM EXPLOSIVES PTY LIMITED
ACN 087 119 515
("Quantum Explosives")
LEGAL & CONTRACT SERVICES
THIESS CONTRACTORS PTY LIMITED
po Box 199 Archerfield Qld 4108
Ph: (07) 3275-8563 Fax: (07) 3275-8633
email address: rsinclair@thiess.com.au
C Copyright 1999
DEED OF GUARANTEE
THIS DEED is made on the seventh day of May 1999.
BY
LSB INDUSTRIES INC of 165 Pennsylvania Avenue Oklahoma City,
Oklahoma, USA (with its successors and permitted assigns "Guarantor")
IN FAVOUR OF
QUANTUM EXPLOSIVES PTY LIMITED (ACN 087 119 515 of 146 Kerry Road,
Archerfield, Queensland, Australia (with its successors and permitted
assigns "Quantum Explosives").
RECITALS
A Total Energy Systems Limited (ACN 010 876 150), T.E.S. Mining
Services Pty Ltd (ACN 010 975 676), Total Energy Systems
(International) Pty Ltd (ACN 084 562 247), Total Mining Systems
Pty Ltd (ACN 709 315) andTotal Energy Systems (NZ) Limited all
c/-Level 7, 371 Queen Street, Brisbane, Queensland, Australia
("Vendors") are ultimately wholly owned subsidiaries of the
Guarantor.
B The Vendors are in the business of manufacturing and supplying
bulk and packaged explosives and blasting agents and other
products and services to the mining, quarrying, civil
engineering and other industries in Australia, New Zealand and
elsewhere ("Business").
C At the request of the Guarantor, Quantum Explosives has entered
an asset purchase agreement with the Vendors dated the seventh
day of May 1999 for the purchase of the assets used by the
Vendors in the conduct of the Business ("Agreement").
D It is a condition precedent to performance under the Agreement
that the Guarantor enter into and execute this Deed.
OPERATIVE
1. Guarantee
The Guarantor guarantees to Quantum Explosives the due and
punctual performance by the Vendors of all terms, provisions and
conditions contained in the Agreement on the part of the Vendors
to be performed ("Guaranteed Obligations"). The Guarantor
acknowledges that it has read and understood the Agreement,
which is attached hereto.
2. Indemnity
The Guarantor indemnifies Quantum Explosives and agrees to keep
Quantum Explosives indemnified from and against all loss,
damage, costs and expenses including legal costs suffered or
incurred by Quantum Explosives directly or indirectly by reason
of:
2.1 the Vendors' default, breach or non-performance or non-
observance by the Vendors of any of the Guaranteed
Obligations; and
2.2 any matter which the Vendors have warranted to Quantum
Explosives not being as warranted;
provided that in no circumstance shall the Guarantor be liable
under this Guarantee and Indemnity to any greater extent than
the Vendors would have been liable to Quantum Explosives for
such default, breach, non performance, non observance or failure
of warranty in accordance with the terms of the Agreement if the
Agreement was otherwise of full force and effect against the
Vendors.
3. Enforcement
3.1 If:
3.1.1. the Vendors defaults in the due and punctual
performance of any of the Guaranteed Obligations
and at any time after that default Quantum
Explosives gives written notice to the Guarantor
of that default and of Quantum Explosives'
intention to exercise its rights under this Deed
in respect of that default; and
3.1.2 within 30 days of the giving of that notice, the
Vendors (or the Guarantor on its behalf) has
failed to remedy the default,
the Guarantor shall (without further notice from Quantum
Explosives) immediately remedy or cause to be remedied the
default.
1
4. Obligations absolute and unconditional
The Guarantor remains liable under this Deed even if:
4.1 there is any modification of the liabilities of the Vendors
under this Agreement;
4.2 any arrangement is made between the Vendors and Quantum
Explosives with or without assent of the Guarantor;
4.3 there is any alteration in the obligations undertaken by
the Vendors under the Agreement including, without
limitation any forbearance as to payment, time, performance
or otherwise;
4.4 the Vendors:
4.4.1 enter into any composition or scheme of
arrangement with creditors; or
4.4.2 enters into liquidation or are wound up;
4.5 Quantum Explosives cannot, for any reason, enforce the
Agreement against the Vendors;
4.6 Quantum Explosives, for any reason, has not exercised or
does not exercise all or any one or more of its rights or
powers against the Vendors;
4.7 Quantum Explosives grants any time or other indulgence or
concession to the Vendors;
4.8 Quantum Explosives compounds, compromises, releases,
abandons, waives, varies, relinquishes or renews any of
Quantum Explosives' rights against the Vendors, or waives
or varies any other provision of the Agreement; or
4.9 Any part of the Vendors' liability to Quantum Explosives is
satisfied by a payment which (whether because it is a
preference or for any other reason) Quantum Explosives must
pay back or otherwise lose the benefit of, to the extent of
the repayment or benefit so lost.
5. Duration of Deed
This Deed shall continue and shall remain in full force until
all of the Guaranteed Obligations or any other obligation or
liability arising under the Agreement have been fully performed,
observed and satisfied by the Vendors or the Guarantor.
6. Service of notices
6.1 Any notice required pursuant to this Deed must be:
6.1.1 in writing; and
6.1.2 either sent by facsimile transmission, certified
mail or delivered by hand.
6.2 A notice to Quantum Explosives must be addressed to Quantum
Explosives at the address on page 1 of this Deed or such
other address as may be notified.
6.3 A notice to the Guarantor must be addressed to the
Guarantor at the address on page 1 of this Deed or such
other address as may be notified or to facsimile number
0015-1-405 236 1209 attention: General Counsel.
6.4 A notice sent by certified mail or delivered by hand is
effective upon receipt.
6.5 A notice sent by facsimile transmission is effective upon
transmission unless it is transmitted after the close of
normal business hours, or on a Saturday, Sunday or public
holiday, in which case it is effective on the opening of
business on the next business day at the intended place of
receipt.
6.6 The Guarantor nominates Corrs Chambers Westgarth, Level 35,
Waterfront Place, 1 Eagle Street, Brisbane to receive
service of documents on the Guarantor's behalf in respect
of this Deed provided that a copy of each document so
served shall as soon as possible thereafter be forwarded by
facsimile to the Guarantor's General Counsel on facsimile
no. 0015-1-405 236 1209. The agent must accept service of
documents on the Guarantor's behalf with respect to any
action, proceeding or other process in connection with this
Deed.
7. Representations
The Guarantor acknowledges that it has not been induced to enter
into this Agreement by virtue of any representation by or on
behalf of Quantum Explosives but has acted entirely on its own
responsibility.
3
8. Costs
Each party shall pay its own legal costs of and incidental to
the preparation and execution of this Deed but any stamp duty
payable thereon shall be paid by the Guarantor.
9. Governing Law and Jurisdiction
9.1 This Deed and all questions arising in connection with it
are governed by and will be construed according to the laws
from time to time in force in the States of Queensland and
Oklahoma. Any injunctions, orders or judgements issued or
granted therefrom shall be enforceable within the
Commonwealth of Australia and the United States of America,
including Oklahoma or any county or state with which the
Commonwealth of Australia or the State of Queensland has
agreed reciprocally to enforce injunctions, orders or
judgements, as the case may be.
9.2 The Guarantor must do all acts deeds or things necessary
for this Deed to be properly acknowledged, certified and
legalised by all relevant authorities, Governmental,
judicial or otherwise, for its enforcement within Oklahoma
and/or Queensland.
10. Construction
A reference in this Deed to the Vendors includes a reference to
the Vendors collectively and to each of the Vendors separately.
4
Executed as a Deed
EXECUTED by LSB INDUSTRIES, INC., )
by its duly authorise officer pursuant )
to a resolution adopted by its Board of )
Directors at a duly called meeting of )
the Board of Directors )
__________________________________________
Authorised Officer of LSB Industries, Inc.
__________________________________________
Name (printed)
I, the notary public named below, hereby certify that the person
specified as the Authorised Officer above did in fact appear and sign
this Deed on behalf of LSB Industries, Inc.
__________________________________________
Notary Public
__________________________________________
Name (printed)
5