EXHIBIT 2.1
BLAKE DAWSON WALDRON
LAWYERS
--------------------
SHARE SALE AGREEMENT
NAUTRONIX LTD
ABN 28 009 019 603
MITCHAM INDUSTRIES INC
Level 19
Forrest Centre DECEMBER 2002
221 St George's Terrace REF: 09-1330-0731
PERTH WA 6000
Telephone: (08) 9366 8000
Fax: (08) 9366 8111
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document 3
1.3 Multiple parties 5
1.4 Business Days 5
2. AGREEMENT TO SELL AND BUY THE SHARES 5
2.1 Sale and purchase 5
2.2 Title property and risk 5
3. CONDITIONS 6
3.1 Conditions precedent to Completion 6
3.2 Waiver of conditions 6
3.3 Obligation to satisfy conditions 6
3.4 Result of non-satisfaction of conditions 6
3.5 NIXAP Equipment 7
4. COMPLETION 7
4.1 Time and place of Completion 7
4.2 Obligations of Seller at Completion 7
4.3 Obligations of Buyer at Completion 8
4.4 What corporate actions the Seller must arrange on Completion 8
4.5 Seller's obligations until registration 9
4.6 Buyer's obligation to register 9
5. WARRANTIES 9
5.1 Seller's Warranties 9
5.2 Seller's indemnity 9
5.3 Threshold for claims 9
5.4 Cap on claims 9
5.5 Time limits for bringing claims 10
5.6 Buyer's Warranties 10
5.7 Buyer's indemnity 11
5.8 Threshold for claims 11
5.9 Cap on claims 11
5.10 Time limits for bringing claims 11
5.11 Knowledge of Buyer 11
5.12 No Further Warranties 12
5.13 Buyer acknowledges opportunity for advice and inquiries 13
5.14 Buyer not aware of a Warranty Breach 13
6. TERMINATION 13
6.1 Breach 13
6.2 Notice of termination 13
6.3 Surviving clauses 14
6.4 Deposit 14
7. CONFIDENTIALITY AND DISCLOSURES 14
7.1 Confidentiality 14
7.2 Obligations of confidentiality 14
7.3 Exceptions to obligations of confidentiality 15
7.4 Return of Confidential Information 15
7.5 Warranties 15
7.6 Disclosure by Company 16
7.7 Confidentiality of the agreement 16
8. SELLER'S CONTINUING RIGHT TO ACCESS DOCUMENTS 16
9. COSTS AND STAMP DUTY 17
9.1 Costs generally 17
9.2 Stamp duty generally 17
10. NOTICES 17
10.1 How to give a notice 17
10.2 When a notice is given 17
10.3 Address for notices 18
11. AMENDMENT AND ASSIGNMENT 18
11.1 Amendment 18
11.2 Assignment 18
12. GENERAL 18
12.1 Governing Law 18
12.2 Giving effect to this document 18
12.3 Waiver of rights 19
12.4 Operation of this document 19
12.5 Operation of indemnities 19
12.6 GST 19
12.7 Consents 20
12.8 No merger 20
12.9 Counterparts 20
12.10 Attorneys 20
13. TND 20
Schedules
1 DISCLOSURES 22
2 SELLER'S WARRANTIES 23
3 NIXAP EQUIPMENT 30
SHARE SALE AGREEMENT
DATE December 2002
PARTIES
NAUTRONIX LIMITED ABN 28 009 019 603 (the "SELLER")
MITCHAM INDUSTRIES INC (a company incorporated in Texas) (the "BUYER")
RECITALS
A. The Seller is the beneficial owner of the Shares of the Company.
B. The Company is a wholly owned subsidiary of the Seller.
C. The Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller the Shares on the terms of this document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
"AUTHORISATION" means:
(a) an authorisation, consent, declaration, exemption,
notarisation or waiver, however it is described; and
(b) in relation to anything that could be prohibited or restricted
by law if a Government Agency acts in any way within a
specified period, the expiry of that period without that
action being taken,
including any renewal or amendment.
"BUSINESS DAY" means:
(a) for determining when a notice, consent or other communication
is given, a day that is not a Saturday, Sunday or public
holiday in the place to which the notice, consent or other
communication is sent; and
(b) for any other purpose, a day (other than a Saturday, Sunday or
public holiday) on which banks are open for general banking
business in Perth, Western Australia.
"BUYER CLAIM" means a claim against the Seller under a Warranty or
under an indemnity in this document.
"BUYER'S WARRANTY" means each of the warranties and representations
referred to in clause 5.6.
"COMPANY" means Seismic Asia Pacific Pty Ltd ABN 31 083 755 104.
"COMPLETION" means completion of the sale and purchase of the Shares
under clause 5.
"COMPLETION DATE" means 23 December 2002 or such later date which is
agreed in writing by the parties.
"CORPORATIONS ACT" means the Corporations Act 2001 (Cth).
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, hypothecation or
title retention arrangement, a right of set-off or right to withhold
payment of a deposit or other money, a notice under section 255 of the
Income Tax Assessment Act 1936, section 260-5 in schedule 1 to the
Taxation Administration Act 1953 or any similar legislation, or an
easement, restrictive covenant, caveat or similar restriction over
property, or an agreement to create any of them or to allow any of them
to exist.
"GOVERNMENT AGENCY" means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
"GST" means:
(a) the same as in the GST Law;
(b) any other goods and services tax, or any Tax applying to this
transaction in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other
charge under a law for such a Tax.
"GST LAW" means the same as "GST law" means in the A New Tax System
(Goods & Services Tax) Act 1999.
"INSOLVENCY EVENT" means, for a person, being in liquidation or
provisional liquidation or under administration, having a controller
(as defined in the Corporations Act) or analogous person appointed to
it or any of its property, being taken under section 459F(1) of the
Corporations Act to have failed to comply with a statutory demand,
being unable to pay its debts or otherwise insolvent, dying, ceasing to
be of full legal capacity or otherwise becoming incapable of managing
its own affairs for any reason, taking any step that could result in
the person becoming an insolvent under administration (as defined in
section 9 of the Corporations Act), entering into a compromise or
arrangement with, or assignment for the benefit of, any of its members
or creditors, or any analogous event.
"LAST ACCOUNTS" means the audited balance sheet and profit and loss
accounts of the Company for the year ended on the Last Accounts Balance
Date, true copies of which are exhibited as Exhibit "A" to this
agreement and initialled for the purposes of identification by an
officer of the Seller and an officer of the Buyer.
"LAST ACCOUNTS BALANCE DATE" means 30 June 2002.
"LOSS OR CLAIM" means, in relation to any person, a damage, loss, cost,
expense or liability incurred by the person or a claim, demand, action,
proceeding or judgment made against the person, however arising and
whether present or future, fixed or unascertained, actual or
contingent.
"NAB" means National Australia Bank Limited.
"NIXAP EQUIPMENT" means all of the equipment set out in Schedule 3 to
this document currently owned by Nautronix Asia Pacific Pte Ltd and
used in its business.
"PURCHASE PRICE" means $1,330,000.
"SHARES" means all of the issued shares in the capital of the Company.
"REVENUE AUTHORITY" means any Australian Federal, State, Territory or
local governmental authority or instrumentality in respect of Tax.
"SSI CONTRACT" means the contract dated 23 July 1997 between Seismic
Supply International Pty Ltd and SeaBeam Instruments Inc (now Harris
Acoustic Products Corp).
"SUPERANNUATION COMMITMENT" means any legal liability (whether arising
under an industrial award or agreement or otherwise) or voluntary
commitment to make contributions to any superannuation fund, pension
scheme or other arrangement which will provide directors or employees
of the Company or their respective dependants with pensions, annuities,
lump sum or any other payments upon retirement or earlier death or
otherwise.
"TAX" means a tax, levy, duty, charge, deduction or withholding,
however it is described, that is imposed by law or by a Government
Agency, together with any related interest, penalty, fine or other
charge
"TAX ACT" means the Income Tax Assessment Act 1936, the Taxation
Administration Act 1953, Income Tax Rates Act 1986 and other rating
Acts, the Income Tax Assessment Act 1997, the Income Tax Regulations
and related Commonwealth income taxation legislation and regulations.
"TND" means the potential Thales Navigation debt of $407,000.
"WARRANTY" means each of the warranties and representations referred to
in clause 5.1.
1.2 RULES FOR INTERPRETING THIS DOCUMENT
Headings are for convenience only, and do not affect interpretation.
The following rules also apply in interpreting this document, except
where the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to
that legislation as amended, re-enacted or replaced,
and includes any subordinate legislation issued under
it;
(ii) a document or agreement, or a provision of a document
or agreement, is to that document, agreement or
provision as amended, supplemented, replaced or
novated;
(iii) a party to this document or to any other document or
agreement includes a permitted substitute or a
permitted assign of that party;
(iv) a person includes any type of entity or body of
persons, whether or not it is incorporated or has a
separate legal identity, and any executor,
administrator or successor in law of the person; and
(v) anything (including a right, obligation or concept)
includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a
corresponding meaning.
(e) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes
something else, the example does not limit the scope of that
thing.
(f) The word "AGREEMENT" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) Where an expression is defined anywhere in this document, it
has the same meaning throughout.
(h) A reference to "DOLLARS" or "$" is to an amount in Australian
currency.
(i) A reference to this document includes the agreement recorded
by this document.
(j) Words defined in the GST Law have the same meaning in clauses
1.2(k), 1.2(l) and 12.6.
(k) If a person is a member of a GST group, references to GST
which the person must pay and to input tax credits to which
the person is entitled include GST which the representative
member of the GST group must pay and input tax credits to
which the representative member is entitled.
(l) If a person is notionally liable to pay GST or is liable to
pay an amount which is treated as GST under the GST Law,
references to GST which the person must pay extend to any
notional liability of the person to pay GST and references to
an input tax credit extend to any notional input tax credit to
which the person is entitled.
(m) A reference to a matter being "TO THE SELLER'S KNOWLEDGE AND
BELIEF" means that the matter is to the actual knowledge of
the Seller.
(n) Where a warranty is qualified by the expression "TO THE
SELLER'S KNOWLEDGE AND BELIEF" the warranty is deemed to
include a further warranty by the Seller that the warranty is
made after enquiry has been made by the Seller as to the
relevant matters.
1.3 MULTIPLE PARTIES
If a party to this document is made up of more than one person, or a
term is used in this document to refer to more than one party:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally;
and
(c) any other reference to that party or term is a reference to
each of those persons separately, so that (for example) a
representation, warranty or undertaking is given by each of
them separately.
1.4 BUSINESS DAYS
If the day on or by which a person must do something under this
document is not a Business Day:
(a) if the act involves a payment that is due on demand, the
person must do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day.
2. AGREEMENT TO SELL AND BUY THE SHARES
2.1 SALE AND PURCHASE
Subject to clause 3, the Seller as beneficial owner sells to the Buyer
and the Buyer buys from the Seller, the Shares (together with all
benefits, rights and entitlements accrued or attaching to the Shares)
free from any security or third party interest for the Purchase Price
and otherwise on the terms of this document.
2.2 TITLE PROPERTY AND RISK
The title to, property in and risk of the Shares:
(a) until Completion, remains solely with the Seller; and
(b) passes to the Buyer on and from Completion.
3. CONDITIONS
3.1 CONDITIONS PRECEDENT TO COMPLETION
The obligations of the parties to complete the sale and purchase of the
Shares do not become binding unless each of the following conditions
are satisfied, or waived under clause 3.2:
(a) the Seller obtains a full and unconditional release from NAB
of the guarantee and indemnity provided by the Company to NAB;
(b) simultaneously with Completion, the Buyer completing its
acquisition of the NIXAP Equipment from Nautronix Asia Pacific
Pte Limited for an amount of $200,000; and
(c) the Buyer has paid a deposit of $100,000 to the Seller.
3.2 WAIVER OF CONDITIONS
The Seller may, in its absolute discretion and subject to any
conditions that the Seller thinks fit to impose, waive a condition
referred to in clause 3.1(b) or (c) by notice to the Buyer.
The condition in clause 3.1(a) may only be waived by written notice
from both the Buyer and the Seller subject to any conditions imposed in
those notices by both parties.
3.3 OBLIGATION TO SATISFY CONDITIONS
Where clause 3.1 specifies that a party must do an act in relation to
the satisfaction of a condition, the specified party must do the
specified act in accordance with clause 3.1 and, in any event, the
Seller and the Buyer must:
(a) use their respective best endeavours (other than waiver) to
ensure that the conditions referred to in clause 3.1 are
fulfilled on or before the Completion Date; and
(b) keep each other informed of any circumstances which may result
in any of those conditions not being satisfied in accordance
with its terms.
3.4 RESULT OF NON-SATISFACTION OF CONDITIONS
If the conditions referred to in clause 3.1 are not satisfied or waived
under clause 3.2 on or before the Completion Date, then all rights and
obligations under this document other than:
(a) this clause 3 and clauses 1 and 6 to 12; and
(b) rights that accrue before that date,
terminate on that date.
3.5 NIXAP EQUIPMENT
As contemplated by clause 3.1(b), the Buyer acknowledges and agrees
that it will purchase the NIXAP Equipment from Nautronix Asia Pacific
Pte Limited for an amount of $200,000 and completion of this purchase
shall be simultaneous with completion of the sale of the Shares. This
obligation will cease if this condition precedent is waived in
accordance with clause 3.2. The Seller will use its best endeavours to
procure that Nautronix Asia Pacific Pte Limited executes any documents
necessary to effect such transfer and the Buyer undertakes to execute
such documents. The Buyer acknowledges that no warranties or
representations are made by the Seller or Nautronix Asia Pacific Pte
Limited in relation to the NIXAP Equipment (including warranties as to
condition and fitness for purpose), excepting as set out in Schedule 2
to this document, and all other warranties and representations are
excluded to the fullest extent permitted by law.
4. COMPLETION
4.1 TIME AND PLACE OF COMPLETION
Completion is to occur on the Completion Date at the offices of the
Seller's solicitors, 221 St George's Terrace, Perth, Western Australia,
or at any other time or place agreed in writing by the parties.
4.2 OBLIGATIONS OF SELLER AT COMPLETION
At Completion the Seller must deliver or cause to be delivered to the
Buyer:
(a) the share certificates for the Shares;
(b) transfers of the Shares naming as transferee the Buyer or its
nominees which have been duly executed in blank by the
respective holders and are in registrable form;
(c) an irrevocable consent and waiver by the Seller of their
rights of pre-emption under clause 27 of the constitution of
the Company;
(d) the written resignations of each director, secretary and
public officer of the Company;
(e) proxy forms duly completed in accordance with the Company's
constitution or powers of attorney appointing the Buyer's
nominees as proxy or attorney of the registered holder of the
Shares; and
(f) any other document which the Buyer requires to obtain good
title to the Shares and to enable the Buyer to cause the
registration of the Shares in the name of the Buyer or its
nominee;
(g) the common seal, secretarial volume, asset register, all other
registers, management accounts, budgets and all books of
accounts, ledgers, records, cheque books, documents and other
papers of any kind of the Company to the extent that they are
not located at the Company's principal place of business in
Queensland; and
(h) subject to clause 3.2, the NIXAP Equipment (with delivery
details to be specified by the Buyer as at Completion).
4.3 OBLIGATIONS OF BUYER AT COMPLETION
At Completion the Buyer must:
(a) pay the Purchase Price to the Seller or as the Seller may
direct by notice to the Buyer, in cash or by bank cheque or in
any other form that the parties may agree in writing;
(b) subject to clause 3.2, pay $200,000 to Nautronix Asia Pacific
Pte Limited as consideration for the purchase of the NIXAP
Equipment, as Nautronix Asia Pacific Pte Limited may direct by
notice to the Buyer, in cash or by bank cheque or in any other
form that the Buyer and Nautronix Asia Pacific Pte Limited may
agree in writing;
(c) provide a written consent of each person nominated by the
Buyer to act as a director, secretary or public officer of the
Company;
(d) do and execute all other acts and documents which this
document requires the Buyer to do or execute at Completion.
The parties acknowledge that upon Completion the deposit of $100,000
shall vest in the Seller on Completion and shall be part satisfaction
of the Purchase Price pursuant to paragraph (a) of this clause.
4.4 WHAT CORPORATE ACTIONS THE SELLER MUST ARRANGE ON COMPLETION
At Completion the Seller must ensure that a duly convened meeting of
the directors of the Company is held, and that resolutions for the
following are passed at those meetings:
(a) (APPROVE TRANSFERS) subject to payment of stamp duty, to
approve transfer of the Shares to the Buyer, to register the
transfers of the Shares, to issue a new share certificate for
the Shares in the name of the Buyer and to cancel the existing
share certificates;
(b) (APPOINT OFFICERS) to appoint as additional directors,
secretaries and public officers of the Company persons
nominated by the Buyer before Completion by notice to the
Seller (except any nominee who has not provided a written
consent to act);
(c) (CHANGE BANK SIGNATORIES) to revoke any existing authority to
operate an account or safety deposit box with a bank or a
financial institution, and to appoint instead as signatories
of the accounts and deposit boxes of the Company the persons
nominated by the Buyer before Completion by notice to the
Seller;
(d) (RETIREMENTS) to note the resignations of the directors,
secretaries and public officer of the Company, with effect
from the end of that meeting, by the written resignations
provided under clause 4.2(d).
4.5 SELLER'S OBLIGATIONS UNTIL REGISTRATION
After Completion and until the Shares are registered in the name of the
Buyer and any nominee, the Seller must attend general meetings of the
Company, vote at those meetings and take all other action as registered
holder of the Shares as the Buyer may lawfully require by notice.
4.6 BUYER'S OBLIGATION TO REGISTER
The Buyer must ensure that registration of the transfer of the Shares
takes place as soon as possible after Completion.
5. WARRANTIES
5.1 SELLER'S WARRANTIES
The Seller warrants and represents to the Buyer, as an inducement to
the Buyer to enter into this document and to purchase the Shares and
the NIXAP Equipment, and it is a condition of this document that,
except as set out in Schedule 1, each of the statements set out in
Schedule 2 is true, complete and accurate, both at the date of this
document and at the Completion Date (except that where a Warranty
refers to only one of those dates, that Warranty is given only as at
that date).
5.2 SELLER'S INDEMNITY
The Seller indemnifies the Buyer on a full indemnity basis against:
(a) any Loss or Claim of or against the Buyer and the Company to
the extent that the claim arises from or is connected with any
breach of any of the Warranties or any other term of this
document by the Seller; and
(b) any Loss or Claim of or against the Buyer by reason of the
Shares or the NIXAP Equipment being worth less than they would
have been worth had that breach not occurred.
5.3 THRESHOLD FOR CLAIMS
The Buyer cannot make any claim for breach of any Warranty, under an
indemnity in this document, or based on a breach of any provision of
this document unless the amount claimed by the Buyer or aggregate
amount of all claims of the Buyer exceeds $50,000, and then the Buyer
may claim the full amount including the first $50,000.
5.4 CAP ON CLAIMS
The aggregate liability of the Seller for claims for breach of
Warranty, under an indemnity in this document, or based on a breach of
any provision of this document, is limited to $500,000, but any
interest on the amount of a claim included in any judgment, or any
interest upon any judgment for a claim, or any costs of proceedings for
a claim payable by the Seller, may be claimed and are not to be counted
in calculating this limit.
5.5 TIME LIMITS FOR BRINGING CLAIMS
The Buyer cannot make any claim for breach of any Warranty, under an
indemnity in this document, or based on a breach of any provision of
this document, and the liability of the Seller for a claim is
absolutely barred, unless the Buyer gives to the Seller within 1 year
after Completion, notice of the claim describing the proposed claim
sufficiently to put the Seller fairly on notice of the matter in
question, and (to the extent the Buyer is reasonably able) of the
likely amount of the claim.
5.6 BUYER'S WARRANTIES
The Buyer warrants and represents to the Seller, as an inducement to
the Seller to enter into this document and to sell the Shares, and it
is a condition of this document that, at the date of this document:
(a) (STATUS) it is a company limited by shares;
(b) (POWER) it has full legal capacity and power to enter into
this document and to carry out the transactions that it
contemplates;
(c) (CORPORATE AUTHORITY) it has taken all corporate action that
is necessary or desirable to authorise its entry into this
document and its carrying out the transactions that it
contemplates;
(d) (AUTHORISATIONS) it holds each Authorisation that is necessary
or desirable to:
(i) execute this document and to carry out the transactions
that it contemplates; or
(ii) ensure that this document is legal, valid, binding and
admissible in evidence,
and it is complying with any conditions to which any of these
Authorisations is subject;
(e) (DOCUMENTS EFFECTIVE) this document constitutes its legal,
valid and binding obligations, enforceable against it in
accordance with its terms (except to the extent limited by
equitable principles and laws affecting creditors' rights
generally), subject to any necessary stamping or registration;
(f) (NO CONTRAVENTION) neither its execution of this document nor
the carrying out by it of the transactions that it
contemplates, does or will:
(i) contravene any law to which it or any of its property
is subject or any order of any Government Agency that
is binding on it or any of its property;
(ii) contravene any Authorisation;
(iii) contravene any undertaking or instrument binding on it
or any of its property; or
(iv) contravene its constitution;
(g) (NO LITIGATION) no litigation, arbitration, mediation,
conciliation or administrative proceedings are taking place,
pending, or to the knowledge of any of its officers after due
inquiry, threatened which, if adversely decided, could have a
material adverse effect on its ability to perform its
obligations under this document;
(h) (NO INSOLVENCY) it is not affected by an Insolvency Event; and
(i) (NO TRUST) it is not entering into this document as trustee of
any trust or settlement.
5.7 BUYER'S INDEMNITY
The Buyer indemnifies the Seller on a full indemnity basis against any
Loss or Claim of or against the Seller to the extent that the claim
arises from or is connected with any breach of any of the warranties of
the Buyer under clause 5.6 or any other term of this document by the
Buyer.
5.8 THRESHOLD FOR CLAIMS
The Seller cannot make any claim for breach of any Buyer's Warranty,
under an indemnity in this document, or based on a breach of any
provision of this document unless the amount claimed by the Seller or
aggregate amount of all claims of the Seller exceeds $50,000, and then
the Seller may claim the full amount including the first $50,000.
5.9 CAP ON CLAIMS
The aggregate liability of the Buyer for claims for breach of Buyer's
Warranty, under an indemnity in this document, or based on a breach of
any provision of this document, is limited to $500,000, but any
interest on the amount of a claim included in any judgment, or any
interest upon any judgment for a claim, or any costs of proceedings for
a claim payable by the Seller, may be claimed and are not to be counted
in calculating this limit.
5.10 TIME LIMITS FOR BRINGING CLAIMS
The Seller cannot make any claim for breach of any Buyer's Warranty,
under an indemnity in this document, or based on a breach of any
provision of this document, and the liability of the Buyer for a claim
is absolutely barred, unless the Seller gives to the Buyer within 1
year after Completion, notice of the claim describing the proposed
claim sufficiently to put the Buyer fairly on notice of the matter in
question, and (to the extent the Seller is reasonably able) of the
likely amount of the claim.
5.11 KNOWLEDGE OF BUYER
The Warranties are qualified by, and the Buyer cannot make a Buyer
Claim in relation to:
(a) any information available to the public generally, or
available to the Buyer on enquiry of any government agency,
for example, the Australian Securities and Investments
Commission, IP Australia, the Land Titles Office, the
Environment Protection Authority or any court registry;
(b) any information about the Seller, the business or the Company
or any of the assets of the Company or the Seller available to
the public generally, or available to any buyer, from any
stock exchange;
(c) any information publicly available at the time of signing this
document;
(d) anything which would be revealed by or apparent from physical
inspection of the Premises, any fixtures on the Premises, any
plant and equipment or the NIXAP Equipment or the inventory at
the time of signing this document;
(e) anything the Buyer should know, having regard to the
opportunities of the Buyer or any adviser of the Buyer to make
enquiries of the Seller;
(f) anything which the Buyer or any officer, employee, agent or
adviser of the Buyer actually knows before Completion;
(g) anything which the Buyer or any officer, employee, agent or
adviser of the Buyer ought to have known before Completion if
acting with reasonable care and diligence, including as a
result of the Buyer's investigation of the Business or any of
the assets or Premises or fixtures on Premises made by the
Buyer;
(h) anything which a reasonable person in the position of the
Buyer or in the position of any adviser of the Buyer would
have found after due inquiry prompted by, or might reasonably
infer or suspect from, any information falling within (a) to
(g) above; and
(i) anything a person in the position of the Seller or an adviser
of the Seller could reasonably expect the Buyer to know itself
or through any of its advisers, having regard to the apparent
expertise and experience of the Buyer or of any adviser of the
Buyer in the relevant industry, in any industry in which the
business is conducted or in which the Buyer conducts business,
or in the industry generally (and in this regard, the Buyer
makes the acknowledgments in clause 5.13 of this document).
5.12 NO FURTHER WARRANTIES
Except for the Warranties, neither the Seller nor any related body
corporate of the Seller makes any express or implied representation or
warranty at all including:
(a) as to the physical condition or suitability for any particular
purpose or functionality or lack of defects of any plant and
equipment or leased equipment or premises or fixtures on
premises (including the NIXAP Equipment);
(b) as to markets or supplies;
(c) as to future matters, including future costs, revenues or
profits; or
(d) as to the accuracy, completeness or reasonableness of any
projection, forecast or forward looking information, or of any
assumptions on which they are based.
5.13 BUYER ACKNOWLEDGES OPPORTUNITY FOR ADVICE AND INQUIRIES
The Buyer acknowledges and agrees that (including for the purposes of
clause 5.11):
(a) the Buyer and its representatives have had an opportunity to
conduct a due diligence investigation and evaluation of the
assets and the business of the Company, and have used that
opportunity;
(b) the Buyer has made, and relies on, its own searches,
investigations and enquiries in respect of the business or the
assets of the Company;
(c) the Buyer has had independent legal, financial and technical
advice relating to the purchase of the assets and the business
of the Company and to the terms of this document and to the
documents to be executed pursuant to it;
(d) the Buyer is an expert in the leasing of seismic equipment;
(e) the Buyer has extensive knowledge and experience in matters in
the oil field seismic exploration industry;
(f) the Buyer has made and is relying on its own independent
investigation, analysis and evaluation of the information
provided by the Seller and of other information which it
considers relevant; and
(g) the Buyer has satisfied itself in relation to matters
revealed, or which should have been revealed had reasonable
care and due diligence been exercised, by its inquiries,
investigation, analysis and evaluation.
5.14 BUYER NOT AWARE OF A WARRANTY BREACH
At the date of this document, the Buyer does not know of, or have any
ground to suspect, anything which may be, or would with the lapse of
time or giving of notice, or both, be likely to become, a breach of any
Warranty.
6. TERMINATION
6.1 BREACH
If a party breaches a provision of this document, the other party may
give notice in writing to the party in breach requiring it to remedy
the breach.
6.2 NOTICE OF TERMINATION
(a) If the party in breach has not remedied the matter in
accordance with clause 6.1 within 14 days of a party receiving
such a notice, or if the breach is not capable of remedy (in
which case no notice is required), the other party may,
without affecting any other of its rights or remedies,
terminate this document by written notice.
(b) The Seller may terminate this document by written notice at
any time, with immediate effect from the date of service of
the notice. For the avoidance of doubt, exercise of this right
will not constitute a breach by the Seller of clause 3.1.
6.3 SURVIVING CLAUSES
The provisions of clauses 1 and 6 to 12 will survive termination of
this document. Termination will not affect any rights or remedies
accruing prior to termination.
6.4 DEPOSIT
Upon termination prior to Completion, the deposit of $100,000 shall be
refunded to the Buyer as soon as practicable.
7. CONFIDENTIALITY AND DISCLOSURES
7.1 CONFIDENTIALITY
The following definitions apply in this clause 7.
"DISCLOSING PARTY" means the party giving information.
"RECEIVING PARTY" means the party to whom information is given.
"CONFIDENTIAL INFORMATION" means any written or oral information of a
technical, business or financial nature which:
(a) is taken by any provision of this document to be Confidential
Information; or
(b) the Disclosing Party makes the Receiving Party aware is
considered by the Disclosing Party to be confidential and
proprietary,
but does not include information which the Receiving Party can
establish:
(c) was in the public domain when it was given to the Receiving
Party;
(d) becomes, after being given to the Receiving Party, part of the
public domain, except through disclosure contrary to this
document;
(e) was in the Receiving Party's possession when it was given to
the Receiving Party and was not otherwise acquired from the
Disclosing Party directly or indirectly; or
(f) was lawfully received from another person having the
unrestricted legal right to disclose that information without
requiring the maintenance of confidentiality.
7.2 OBLIGATIONS OF CONFIDENTIALITY
Except as permitted by clause 7.3, the Receiving Party must not:
(a) disclose Confidential Information directly or indirectly in
any form to anyone else;
(b) use or make a copy of any Confidential Information except to:
(i) acquire or check information in connection with this
document and the transactions contemplated by it; or
(ii) perform any of its obligations under this document or
in relation to any of the transactions contemplated by
it.
7.3 EXCEPTIONS TO OBLIGATIONS OF CONFIDENTIALITY
The obligations in clause 7.2 do not apply to a Receiving Party where:
(a) the Disclosing Party has first agreed in writing to the
particular disclosure, use, or copying;
(b) the information is disclosed to a professional adviser, banker
or financial adviser of the Receiving Party or to a person
whose consent is required under this document or for a
transaction contemplated by it, and that person undertakes to
the Disclosing Party:
(i) not to disclose any of the Confidential Information in
any form to anyone else; and
(ii) only to use the Confidential Information for the
purposes of advising the Receiving Party or financing
the Receiving Party or considering whether to give that
consent (as the case may be); or
(c) the Receiving Party is required by law to disclose any
Confidential Information, promptly gives notice to the
Disclosing Party of that requirement and discloses only that
portion of the Confidential Information which it is legally
required to disclose.
7.4 RETURN OF CONFIDENTIAL INFORMATION
If Completion does not occur on or before the Completion Date, a
Receiving Party must immediately:
(a) deliver to the Disclosing Party all documents and other
materials containing, recording or referring to Confidential
Information which are in its possession, power or control; and
(b) ensure that any person who receives the Confidential
Information by the Receiving Party's authority returns the
Confidential Information (in any form in which it is held) to
the Disclosing Party.
The obligations imposed by this clause survive termination of this
document.
7.5 WARRANTIES
The Disclosing Party warrants to the Receiving Party in relation to the
Confidential Information that it discloses that to its knowledge:
(a) it has the right to disclose that Confidential Information to
the Receiving Party;
(b) it has the right to authorise the Receiving Party to use that
Confidential Information as permitted by this document; and
(c) there is no competing claim of title or intellectual property
infringement relating to the use of that Confidential
Information.
7.6 DISCLOSURE BY COMPANY
If the Company discloses information to the Buyer the Company is taken
to be a Disclosing Party, and the Seller enters this clause on its own
behalf and as agent of and trustee for the Company, which may enforce
this clause against the Buyer in consideration of the disclosure made.
The obligations of the Buyer under this clause end on Completion.
7.7 CONFIDENTIALITY OF THE AGREEMENT
Each party must treat the existence and terms of this document
confidentially and no announcement or communication relating to the
negotiations of the parties or the existence, subject matter or terms
of this document may be made or authorised by a party unless:
(a) the other parties have first given their written approval;
(b) the disclosure is to the party's employees, consultants,
professional advisers, bankers, financial advisers or
financiers or to a person whose consent is required under this
document or for a transaction contemplated by it and those
persons undertake to keep confidential any information so
disclosed; or
(c) the disclosure is made to the extent reasonably needed to
comply with any applicable law or requirement of any
Government Agency or regulatory body (including any relevant
stock exchange).
8. SELLER'S CONTINUING RIGHT TO ACCESS DOCUMENTS
The Buyer must:
(a) allow the Seller, and any person appointed by the Seller, at
any time, including any time in the future, during normal
business hours, to inspect and copy all documents, records,
correspondence, accounts and other information whatsoever
relating to the SSI Contract; and
(b) procure Paul Duncan and any employee of the Company to provide
all reasonable assistance to the Seller or any related party
of the Seller, in responding to any requests for information
relating to the SSI Contract.
The Seller will reimburse the Buyer for all reasonable actual costs
incurred by it in complying with the Buyer's obligation under this
clause 8. For the purposes of this clause 8, the Buyer's reasonable
actual costs will be taken to include a reasonable proportion of the
wages of Paul Duncan or any other employees of the Company who may
be required to assist the Seller.
9. COSTS AND STAMP DUTY
9.1 COSTS GENERALLY
Except to the extent specified in clause 9.2 and 12.6, each party must
bear and is responsible for its own costs in connection with the
preparation, execution, Completion and carrying into effect of this
document.
9.2 STAMP DUTY GENERALLY
The Buyer must bear and is responsible for all stamp duty on or in
respect of:
(a) this document;
(b) the sale, purchase, assignment or transfer of any property
under this document; and
(c) any instrument or transaction contemplated by this document.
10. NOTICES
10.1 HOW TO GIVE A NOTICE
A notice, consent or other communication under this document is only
effective if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by airmail, if the
addressee is overseas) to that person's address; or
(ii) sent by fax to that person's fax number and the machine
from which it is sent produces a report that states
that it was sent in full.
10.2 WHEN A NOTICE IS GIVEN
A notice, consent or other communication that complies with this clause
is regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5.00 pm (local time in the place of receipt) on a
Business Day - on that day; or
(ii) after 5.00 pm (local time in the place of receipt) on a
Business Day, or on a day that is not a Business Day -
on the next Business Day; and
(b) if it is sent by mail:
(i) within Australia - 3 Business Days after posting; or
(ii) to or from a place outside Australia - 7 Business Days
after posting.
10.3 ADDRESS FOR NOTICES
A person's address and fax number are those set out below, or as the
person notifies the sender:
SELLER
Address: 108 Marine Terrace
FREMANTLE WA 6160
Fax number: (08) 9430 5901
Attention: Company Secretary
BUYER
Address: PO Box 1175, Huntsville
TEXAS, 77342-1175, USA
Fax number: 936-291-2277
Attention: Chief Financial Officer
11. AMENDMENT AND ASSIGNMENT
11.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
11.2 ASSIGNMENT
Before Completion, a party may only dispose of, declare a trust over or
otherwise create an interest in its rights under this document with the
consent of each other party.
12. GENERAL
12.1 GOVERNING LAW
(a) This document is governed by the law in force in Western
Australia.
(b) Each party submits to the non-exclusive jurisdiction of the
courts exercising jurisdiction in Western Australia, and any
court that may hear appeals from any of those courts, for any
proceedings in connection with this document, and waives any
right it might have to claim that those courts are an
inconvenient forum.
12.2 GIVING EFFECT TO THIS DOCUMENT
Each party must do anything (including execute any document), and must
ensure that its employees and agents do anything (including execute any
document), that the other party may reasonably require to give full
effect to this document.
12.3 WAIVER OF RIGHTS
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) no other conduct of a party (including a failure to exercise,
or delay in exercising, the right) operates as a waiver of the
right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate
as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise
of that right or of any other right.
12.4 OPERATION OF THIS DOCUMENT
(a) This document contains the entire agreement between the
parties about its subject matter. Any previous understanding,
agreement, representation or warranty relating to that subject
matter is replaced by this document and has no further effect.
For the avoidance of doubt, the Buyer has undertaken its own
due diligence and enquiries prior to entry into this document
and relies on no representations or warranties of the Seller
or Nautronix Asia Pacific Pte Limited except as set out in
clause 5.1.
(b) Any right that a person may have under this document is in
addition to, and does not replace or limit, any other right
that the person may have.
(c) Any provision of this document which is unenforceable or
partly unenforceable is, where possible, to be severed to the
extent necessary to make this document enforceable, unless
this would materially change the intended effect of this
document.
12.5 OPERATION OF INDEMNITIES
(a) Each indemnity in this document survives the expiry or
termination of this document.
(b) A party may recover a payment under an indemnity in this
document before it makes the payment.
12.6 GST
(a) Subject to paragraphs (b) to (e) of this clause 12.6, the
consideration for any supply under or as contemplated by this
document is exclusive of GST. The Buyer is responsible for
payment of that GST and indemnifies the Seller (on a full
indemnity basis) in respect of any such amount.
(b) If a payment to satisfy a claim or a right to claim under or
in connection with this document (for example, for misleading
or deceptive conduct or for misrepresentation or for a breach
of any Warranty or warranty of the Buyer or for indemnity or
for reimbursement of any expense) gives rise to a liability to
pay
GST, the payer must pay, and indemnify the payee on demand
against, the amount of that GST.
(c) If a party has a claim under or in connection with this
document for a cost on which that party must pay GST, the
claim is for the cost plus all GST (except any GST for which
that party is entitled to an input tax credit).
(d) If a party has a claim under or in connection with this
document whose amount depends on actual or estimated revenue
or which is for a loss of revenue, revenue must be calculated
without including any amount received or receivable as
reimbursement for GST (whether that amount is separate or
included as part of a larger amount).
(e) The supply of the NIXAP Equipment is GST free and the Buyer is
under no obligation to pay GST (whether to the Seller,
Nautronix Asia Pacific Pte Limited or any other person) in
respect of that supply.
12.7 CONSENTS
Where this document contemplates that a party may agree or consent to
something (however it is described), that party may:
(a) agree or consent, or not agree or consent, in its absolute
discretion; and
(b) agree or consent subject to conditions,
unless this document expressly contemplates otherwise.
12.8 NO MERGER
No provision of this document:
(a) merges on or by virtue of Completion; or
(b) is in any way modified, discharged or prejudiced by reason of
any investigations made or information acquired by or on
behalf of the Buyer or by any of the conditions specified in
clause 3.1 being waived.
12.9 COUNTERPARTS
This document may be executed in counterparts.
12.10 ATTORNEYS
Each person who executes this document on behalf of a party under a
power of attorney declares that he or she is not aware of any fact or
circumstance that might affect his or her authority to do so under that
power of attorney.
13. TND
The Buyer acknowledges that the Company is liable for any potential
liability for TND and any amounts incurred or surrendered by the
Company in relation to that amount.
Subject to Completion having occurred, the Buyer indemnifies the Seller
on a full indemnity basis for any Loss or Claim of or against the
Seller in respect of:
(a) any liability for TND or any amounts incurred or surrendered
in relation to that amount; and
(b) any breach of this clause by the Buyer.
SCHEDULE 1
(Clause 5)
DISCLOSURES
Any disclosure in this Schedule 1 limits each Warranty in Schedule 2.
1. Non-exclusive licence with respect to part of the premises at Unit 3,
12 Archimedes Street, Darra, Queensland, granted by Seismic Supply
International Pty Ltd ACN 010 993 736 to the Company pursuant to a
licence arrangement dated 30 November 2002, a copy of which has been
provided to the Buyer prior to entry into this contract.
2. The contract dated 23 July 1997 between Seismic Supply International
Pty Ltd ("SSI")and SeaBeam Instruments Inc (now Harris Acoustic
Products Corp) ("SSI CONTRACT") (a copy of which has been provided to
the Buyer prior to entry into this contract) and the subpoenas issued
by a court in San Diego, USA and served on Nautronix Inc ( a wholly
owned subsidiary of the Seller incorporated in California, USA),
pursuant to which Nautronix Inc has been requested to provide various
documents relating to the SSI Contract. Further, SSI was the
contracting party as the SSI Contract was entered into and completed
while the business of the Company was a division of SSI and not a
separate legal entity.
SCHEDULE 2
(Clause 5)
SELLER'S WARRANTIES
1. THE SELLER
1.1 The Seller is duly incorporated and validly exists under the law of its
place of incorporation which is Western Australia.
1.2 The Seller has full legal capacity and power to own the Shares.
1.3 The Seller is not insolvent and no receiver has been appointed over any
part of its assets and no such appointment has been threatened.
1.4 The Seller is not in liquidation or administration and no proceedings
have been brought or threatened or procedure commenced for the purpose
of winding up the Seller or placing it under administration.
1.5 The Seller is not affected by an Insolvency Event.
1.6 The Seller is not entering into this document as trustee of any trust
or settlement.
2. DUE AUTHORISATION
2.1 The Seller has full legal capacity and power to enter into this
document and to carry out the transactions that it contemplates.
2.2 The Seller has taken all corporate action that is necessary or
desirable to authorise its entry into this document and its carrying
out the transactions that it contemplates.
2.3 The Seller holds each Authorisation that is necessary or desirable to:
(a) execute this document and to carry out the transactions that
it contemplates; or
(b) ensure that this document is legal, valid, binding and
admissible in evidence,
and it is complying with any conditions to which any of these
Authorisations is subject.
2.4 This document constitutes legal, valid and binding obligations of the
Seller, enforceable against the Seller in accordance with its terms
(except to the extent limited by equitable principles and laws
affecting creditors' rights generally), subject to any necessary
stamping or registration.
2.5 Neither execution of this document by the Seller nor the carrying out
by the Seller of the transactions that it contemplates, does or will:
(a) to the knowledge of the Seller, contravene any law to which
the Seller or any of its property is subject or any order of
any Government Agency that is binding on the Seller or any of
its property;
(b) to the knowledge of the Seller, contravene any Authorisation;
(c) contravene any undertaking or instrument binding on it or any
of its property; or
(d) contravene its constitution.
3. SHARES
3.1 The Seller is the sole legal and beneficial owner of the Shares.
3.2 The Shares comprise the entire issued capital of the Company.
3.3 The Seller has full right, title and interest in the Shares free from
any Encumbrance or third party interest.
3.4 The Seller has not disposed of, agreed to dispose of, or granted any
option to any person to purchase any of the Shares or any interest in
any of the Shares.
3.5 There is no restriction on the sale or transfer of the Shares to the
Buyer except for the consent of the directors of the Company to the
registration of the transfer of the Shares.
4. NIXAP EQUIPMENT
The following warranties contained in this clause 4 are made solely as at
Completion:
4.1 Nautronix Asia Pacific Pte Limited is the sole legal and beneficial
owner of the NIXAP Equipment.
4.2 Nautronix Asia Pacific Pte Limited has full right, title and interest
in the NIXAP Equipment free from any Encumbrance or third party
interest.
4.3 Nautronix Asia Pacific Pte Limited has not disposed of, agreed to
dispose of, or granted any option to any person to purchase any of the
NIXAP equipment.
5. LAST ACCOUNTS
5.1 To the knowledge of the Seller, the Last Accounts disclose a true and
fair view of the state of the affairs, financial position and assets
and liabilities of the Company as at the Last Accounts Balance Date,
and the income, expenses and results of the operations of the Company
for the year ended on that date and were prepared in accordance with
the Corporations Act and Australian Accounting Standards applied on a
consistent basis.
5.2 To the knowledge of the Seller, the unaudited management accounts for
the period 1 July 2002 to 30 November 2002 were prepared in accordance
with the Company's usual accounting practices.
5.3 To the Seller's knowledge and belief, there has not arisen since 30
November 2002 any item, transaction or event of a material or unusual
nature likely to affect substantially the operations or results or
state of affairs the Company.
5.4 No dividends have been declared by the Company since the Last Accounts
Balance Date.
6. COMMITMENTS
6.1 To the Seller's knowledge and belief, there are no outstanding
commitments of the Company for capital expenditure other than
replacements and normal purchases of plant and equipment in the
ordinary course of business.
6.2 To the Seller's knowledge and belief, other than as disclosed in
Schedule 1, the Company is not a party to any material contract or
material commitment entered into which is outside the ordinary course
of business.
7. BUSINESS
7.1 The Company is the legal and beneficial owner of all of its assets,
which are free of any Encumbrance.
7.2 To the Seller's knowledge and belief, the Company holds all statutory
licences, consents, authorisations and permits necessary for the proper
carrying on of its business and the use of the Premises and they are
each valid and subsisting. To the Seller's knowledge and belief, there
is no fact, matter or circumstance known to the Seller that might
prejudice the continuance or renewal of those licences, consents,
authorisations or permits.
7.3 To the Seller's knowledge and belief, the business of the Company is
conducted in accordance with all applicable laws, does not contravene
any laws and no allegation of any contravention of any laws by the
Company is know to the Seller.
7.4 To the Seller's knowledge and belief, all accounts, books, ledgers,
financial and other records of whatsoever kind of the Company:
(a) have been fully and properly maintained and contain due
records of all matters required to be entered by any relevant
legislation and there has not been removed from them any
material records or information;
(b) do not contain or reflect any material inaccuracies or
discrepancies; and
(c) disclose a true and fair view of the trading transactions, or
the financial and contractual position of the Company and of
its assets and liabilities; and
(d) are in the possession of the Company.
7.5 To the Seller's knowledge and belief, there are no powers of attorney
given by the Company in favour of any person which are still in force.
8. ENVIRONMENTAL COMPLIANCE
8.1 To the Seller's knowledge and belief, the Premises are free of all
environmental contamination, including without limitation, any patent
or latent environmental contamination of the atmosphere, air, soil,
sub-soil, ground water or surface waters within or adjacent to such
premises.
8.2 To the Seller's knowledge and belief, there have been no orders issued
which have not been fully complied with and cleared, investigations
conducted or other proceedings
taken or threatened by any governmental body or other regulatory
authority or threatened in writing by any person under any applicable
environmental laws and regulations with respect to the business of the
Company.
9. INTELLECTUAL PROPERTY
9.1 To the Seller's knowledge and belief, all registered trade marks,
patents, designs and copyright relating to the business of the Company
are:
(a) legally and beneficially vested in or licensed by the Company;
(b) not presently being infringed;
(c) not subject to any licence or authority in favour of any third
party.
10. LITIGATION
10.1 The Company is not engaged in any prosecution, litigation or
arbitration proceedings. To the Seller's knowledge and belief, there
are no such proceedings pending or threatened by or against the
Company, nor are there any facts or disputes which might give rise to
any such proceedings.
10.2 To the Seller's knowledge and belief, there are no disputes of which
the Seller is actually aware which may or might give rise to such
proceedings.
11. INSURANCE
11.1 All risks, whether in relation to damage to property, personal injury
or otherwise, and all of the assets of the Company of an insurable
nature are adequately insured for amounts which would be maintained in
accordance with prudent business practice and with a reputable and
properly authorised or licensed insurer. To the Seller's knowledge and
belief, there is no circumstance or fact known to the Seller which
would lead to any contracts of insurance which cover those risks being
prejudiced.
12. TAXATION
12.1 To the Seller's knowledge and belief, the Company has duly complied
with all obligations imposed by and provisions of the Tax Act.
12.2 To the Seller's knowledge and belief, the Company has duly complied
with all obligations imposed under the Tax Act in relation to the
quotation of tax file numbers by employees of the Company and the
deduction by the Company of tax instalments where required under the
Tax Act, including the guidelines under applicable privacy legislation;
and the Company has not committed any offence in relation to the
collection, recording, use or disclosure of tax file numbers.
12.3 The Company has filed all returns under the Tax Act for the income year
and franking year covered by the Last Accounts and to the Seller's
knowledge and belief, for all previous years, together with any
applicable certificates, notices, declarations and any other lodgements
whether mandatory or otherwise in the interests of the Company; to the
Seller's knowledge and belief, all such returns were correct and on a
proper basis, and to
the Seller's knowledge and belief, no dispute exists in relation to any
of them, nor to the Seller's knowledge and belief, are there any facts
or circumstances which might give rise thereto.
12.4 All Tax under the Tax Act for the income year and franking year covered
by the Last Accounts and to the Seller's knowledge and belief, all
prior income and franking years which has been assessed or imposed or
which is deemed to have been assessed or imposed or which is lawfully
assessable or payable by the Company has been duly assessed and paid.
12.5 To the Seller's knowledge and belief, the Company has not made a false
or misleading statement to a taxation officer within the meaning of the
Tax Act in relation to any income or franking year and there is no
unresolved dispute with any Revenue Authority under the Tax Act.
12.6 To the Seller's knowledge and belief, all necessary information,
declarations, certificates, notices, returns and any other required
lodgements in respect of Taxes, other than Tax under the Tax Act, have
been properly and duly submitted by the Company to all relevant Revenue
Authorities in respect of Tax for all relevant periods up to the date
of this agreement, and will continue to be submitted until the
Completion Date. To the Seller's knowledge and belief, the Company has
not made a false or misleading statement in relation thereto and there
is no unresolved dispute with any Revenue Authority, nor are there any
facts or circumstances which might give rise thereto.
12.7 To the Seller's knowledge and belief, all Taxes, other than Tax under
the Tax Act, which have been assessed or imposed or which are deemed to
have been assessed or imposed or which are lawfully assessable or
payable by or upon any member of the Company and which were due and
payable as at the Last Accounts Balance Date have been paid or remitted
to the relevant Revenue Authority by the Company.
12.8 The Company has not in the past 5 years paid or become liable to pay,
nor, to the Seller's knowledge and belief, are there any circumstances
by reason of which it is likely to become liable to pay, any penalty,
fine or interest under the Tax Act or with respect to any Tax under
that or other legislation.
12.9 The Company has not in the past 5 years suffered any investigation,
audit, visit or written request for the production of information by
any Revenue Authority and the Company has not been notified of or is
aware of any proposed such investigation, audit, visit or request.
12.10 To the Seller's knowledge and belief, all credits and debits to any
franking account maintained by the Company have been duly and properly
recorded in accordance with the Tax Act giving rise to a franking
account balance in conformity with the Tax Act, and there are no
existing or pending statutory franking debits in relation to dividend
streaming arrangements, on-market share buy-back purchases or
otherwise.
12.11 The Company has not lodged an application for the determination of an
estimated franking debit and no notice has been received or to the
Seller's knowledge and belief, is expected at the date of this
agreement that would give rise to a franking debit based on an
estimated debit determination under the Tax Act.
12.12 To the Seller's knowledge and belief, all documents and records have
been kept and maintained in compliance with the Tax Act including
(without limiting the generality thereof) all records required in
relation to the franking account balance of the Company and records
necessary to permit the ascertainment of all information required in
relation to capital gains and capital losses including net capital
gains and net capital losses under the Tax Act.
12.13 To the Seller's knowledge and belief, the Company has not been a party
to or has participated in any non-arm's length transaction that could
be affected by the exercise of discretionary powers of the relevant
Revenue Authority including (without limiting the generality thereof)
transactions relating to trading stock, plant and equipment, securities
or assets subject to the capital gains tax provisions of the Tax Act.
12.14 To the Seller's knowledge and belief, the Company has not been a party
to or has participated in transactions or arrangements that could give
rise to the exercise by the Relevant Authority of its powers under the
Tax Act in relation to losses and outgoings incurred under tax
avoidance schemes, or in relation to international agreements or
schemes to reduce income tax, or any other discretionary powers of the
relevant Revenue Authority under the Tax Act by virtue of which
transactions or arrangements entered into by the Company may be
re-opened, revised or given an interpretation different from that
adopted by the Company.
13. FILINGS
13.1 To the Seller's knowledge and belief, the Company has filed all annual
returns, resolutions, particulars, other forms, returns and documents
as and where required to be filed or registered under the Corporations
Act; to the Seller's knowledge and belief, such returns and forms were
accurate in all material respects, and the Company is not liable to be
struck off the register of companies.
14. STAFF AND SUPERANNUATION
14.1 The Seller has disclosed to the Buyer in writing prior to the date of
this document full and correct details of:
(a) the employees of the Company and the employment conditions of
all employees of the Group whose remuneration exceed $25,000
per annum; and
(b) all contracts of service or for services and letters of
appointment in respect of any employees of, or consultants to,
the Company which cannot be terminated on less than 2 months'
notice or where such contract has not been reduced to writing,
reasonable notice.
14.2 To the Seller's knowledge and belief, each of the contracts entered
into by the Company with employees or consultants is enforceable
against the parties to it and there is no party in breach of, or in
default under, any such contract.
15. BROKERAGE
15.1 No person is entitled to recover from the Company any fee or commission
in connection with the purchase or sale of the Shares.
SCHEDULE 3
NIXAP EQUIPMENT
Promax 2-D System
4 x NR 103 Units
3 x NDS 100 Units
4 x Aquarius Unit
Seistec 2000 Tester
388 Line Tester
2 x PSU - 6 Boxes
750 Seismic Strings
Bathy Echosounder
ELAC Multibeam Echosounder c/w HDP 4061
4 x NR109's
EXECUTED as a deed
EXECUTED by NAUTRONIX LTD:
/s/Mark Alexander Patterson /s/Ross William Stuart
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Signature of director Signature of director/secretary
Mark Alexander Patterson Ross William Stuart
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Name Name
EXECUTED by MITCHAM INDUSTRIES INC:
/s/Billy F. Mitcham, Jr. /s/P. Blake Dupuis
- --------------------------------------- ----------------------------------
Signature of director Signature of director/secretary
Billy F. Mitcham, Jr. P. Blake Dupuis
- --------------------------------------- ----------------------------------
Name Name