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EXHIBIT 2.1
SHARE SALE AGREEMENT
AMPOLEX (A.O.E.) PTY LIMITED
AMPOLEX LIMITED
ACN 000 113 217
and
APACHE ENERGY LIMITED
ACN 009 301 964
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THIS AGREEMENT is made 8th October 1997
BETWEEN
AMPOLEX LIMITED ACN 000 113 217 of Level 29, 250 St Georges Terrace, Perth,
Western Australia (SELLER)
AND
APACHE ENERGY LIMITED ACN 009 301 964 of Level 3, 256 St Georges Terrace,
Perth, Western Australia (BUYER)
RECITALS:
A. The Company is engaged in the business of producing hydrocarbons in
Western Australia.
B. The Seller is the legal and beneficial owner of the Shares being the
whole of the issued share capital of the Company.
C. The Seller has agreed to sell the Shares to the Buyer, and the Buyer
has agreed to purchase the Shares from the Seller on the terms and
conditions set out in this Agreement.
The Parties AGREE:
1. DEFINITIONS
1.1 Unless otherwise required by the context or subject matter:
ADJUSTMENT AMOUNT is defined in clause 6.4;
AGREED RATE means the THIRTY (30) day Bank Bill Swap Reference Rate
(source Bloomberg) published in the Australian Financial Review in
respect of the first Business Day of each month or part month for
which interest is to be calculated;
AGREEMENT means this agreement as amended, supplemented or varied from
time to time;
ASSETS means the interest of the Company as listed in Schedule One and
in Schedule Five in and under:
(a) the Titles and all other rights, titles and interests in the
Titles subject to the terms and conditions of their grant;
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(b) the Joint Venture Contracts, including any joint venture
property held under those contracts;
(c) the Information; and
(d) all other miscellaneous assets, rights, property and interests
associated or employed in relation to the Assets, including
the right to produce Petroleum in accordance with that
interest;
BALANCE SHEET means the balance sheet of the Company as audited by
Ernst & Young annexed as Schedule 7 prepared on the basis set out in
the notes to the Balance Sheet and on the basis that the Prior
Properties and Prior Subsidiaries are no longer owned by the Company;
BANK ACCOUNT means any bank account in the name of the Company;
BUSINESS DAY means a day (during the hours of 9.00am to 5.00pm Perth
time) on which trading banks are open for business in Perth, Western
Australia;
BUYER ACCOUNT means an account of amounts owed by the Buyer to the
Seller determined under Schedule 4;
BUYER'S SOLICITORS means Arthur Robinson & Hedderwicks of 530 Collins
Street, Melbourne, Victoria;
COMPANY means Ampolex (A.O.E.) Pty Limited (ACN 008 674 413);
COMPLETION means completion of the sale and purchase of the Shares
under Clause 9;
COMPLETION DATE means the later of:
(a) 14 November 1997; or
(b) the day falling FIVE (5) Business Days after the Conditions
are satisfied; or
such other date as the Parties may agree in writing;
CONDITION means any conditions specified in clauses 3 and 4 inclusive
and CONDITIONS means all of them;
DOLLARS or $ means Australian dollars unless otherwise stated;
EFFECTIVE DATE means 00.01am, 1 July 1997 Perth time;
ENCUMBRANCE means a mortgage, charge, whether fixed or floating, bill
of sale, pledge, lien, charging order, stop order, writ of execution,
title retention or conditional sales agreement, hire or hire purchase
agreement, lease, licence to use or occupy, option, restriction as to
transfer, use or possession,
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easement, caveat and the claim stated in that caveat, equity interest
and any other security interest or other third party right or
interest;
GOVERNMENTAL AGENCY means any government or governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
INDEPENDENT ACCOUNTANT means the chartered accountant referred to in
Schedule Six;
INFORMATION means geological, geophysical or technical information
within the custody or control of the Company being material
information that relates to the presence, absence or extent of
hydrocarbon deposits in the area of the Assets and has been obtained
from the exploration and prospecting for or production of hydrocarbons
within Assets including, without limitation, the books, records,
seismic and interpretive data, notes, drawings, maps and other
information (in various media) related to the Assets;
INTER-COMPANY LOANS means any and all amounts outstanding on any
inter-company loan account owed by the Company to the Seller or any
Related Body Corporate of the Seller at the Effective Date which is
irrevocably agreed to be an amount of ONE HUNDRED AND SIXTEEN MILLION
SEVEN HUNDRED AND SEVEN THOUSAND FIVE HUNDRED AND TWENTY DOLLARS AND
EIGHTY ONE CENTS ($116,707,520.81), plus interest at the Agreed Rate
calculated daily and compounded monthly during the Interim Period;
INTERIM PERIOD means the period between the Effective Date and the
Completion Date;
JOINT VENTURE means all or any of, as the context requires, the
relationships established under the Joint Venture Contracts;
JOINT VENTURE CONTRACTS means the contracts listed as such in Schedule
Five;
OPERATOR means Apache Oil Australia Pty Ltd;
OTHER AGREEMENTS means:
(a) an agreement entered into on the date of this Agreement
between Ampolex (PNG Holdings) Inc and the Buyer or a Related
Body Corporate of the Buyer for the sale of the issued shares
in Ampolex (Western Australia) Inc.; and
(b) an agreement entered into on the date of this Agreement
between Ampolex Limited and the Buyer or a Related Body
Corporate of the Buyer for the sale of the issued shares in
Ampolex Varanus Pty Limited;
PARTY means the Seller or the Buyer according to the context and
PARTIES means both the Seller and the Buyer;
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PETROLEUM has the meaning given in the Petroleum (Submerged Lands) Act
(WA) 1982;
PETROLEUM LEGISLATION means the Petroleum Act (WA) 1967, the Petroleum
(Submerged Lands) Act (Cth) 1967, the Petroleum (Submerged Lands) Act
(WA) 1982, the Petroleum Pipelines Act (WA) 1969 any other Act of
Parliament with which each Act is incorporated, as well as all
regulations, administrative directions and determinations made under
any of those Acts;
PRIOR PROPERTIES means the interest of the Company in:
(a) Exploration Permit for Petroleum No. WA-214-P and the related
joint operating agreement to be assigned to Ampolex AE Pty
Limited effective 31 July 1997;
(b) the Perth Basin including production licences Nos. L1 and L2
and pipeline licences Nos. PL1, PL2, PL3, PL5 and PL23 sold to
CMS Gas Transmission of Australia; and
(c) the Tunisian permits El Jem and Anaguid assigned to Ampolex
(Tunisia) Pty Ltd.
PRIOR SUBSIDIARIES means Ampolex Indonesia Pty Ltd (ACN 073 659 211),
Ampolex (USA) Inc. and Ampolex (New Zealand) Ltd and any wholly owned
subsidiary of these corporations;
PURCHASE PRICE means the cash consideration of ONE HUNDRED AND SIXTY
EIGHT MILLION SIX HUNDRED AND TWENTY FIVE THOUSAND TWO HUNDRED AND
TWENTY FOUR DOLLARS AND SEVENTY SEVEN CENTS ($168,625,224.77) (which
amount includes working capital as at the Effective Date) as adjusted
in accordance with Clause 6 and Schedule Four, plus interest at the
Agreed Rate calculated daily and compounded monthly during the Interim
Period;
RELATED BODY CORPORATE has the meaning given to that expression in the
Corporations Law;
SALE means the sale and purchase of the Shares in accordance with the
terms of this Agreement;
SALES CONTRACTS means the contracts listed as such in Schedule 5;
SCHEDULE means a schedule to this Agreement;
SELLER ACCOUNT means an account of amounts owed by the Seller to the
Buyer determined under Schedule 4;
SELLER'S SOLICITORS means Freehill, Hollingdale & Page of 140 St
Georges Terrace, Perth, Western Australia;
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SHARES means the 11,222,789 shares in the Company having a par value
of $0.50 being all the issued shares in the capital of the Company;
SPECIFIED ENCUMBRANCES means the encumbrances specified in Schedule
One;
TAX means all federal, state, local or foreign taxes and charges
including but not limited to income, gross receipts, windfall profits,
goods and services, value added, transfer, property, sales,
production, use, license, excise, franchise, withholding or similar
taxes, together with any interest, additions or penalties and any
interest in respect of such additions or penalties;
TITLES means the petroleum titles and licences specified in Schedule
One; and
WARRANTIES mean the warranties and representations set out in:-
(a) Schedule Two in the case of the Seller; and
(b) Schedule Three in the case of the Buyer.
2. SALE SUBJECT TO CONDITIONS
The Sale is conditional on satisfaction of each and every Condition.
3. HART-SCOTT-RODINO CONDITION
This Agreement is subject in all respects to and conditional upon
compliance by the Parties with the Hart- Scott-Rodino Antitrust
Improvements Act of 1976, and rules and regulations promulgated
pursuant thereto in respect of the transactions contemplated by this
Agreement and the Other Agreements.
4. FIRB CONDITION
4.1 DEFINITION
In this subclause:
ACT means the Foreign Acquisitions and Takeovers Act (Cth) 1975; and
TREASURER means the Treasurer of Australia.
4.2 SALE SUBJECT TO APPROVAL
The Sale is conditional on the Treasurer either:
(a) advising the Buyer that the Treasurer has no objection to the
acquisition of the Shares by the Buyer and the transactions
contemplated by the Other Agreements either:
(i) unconditionally; or
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(ii) subject to conditions with which the Buyer (or its
Related Body Corporate, as the case may be) is
willing to comply; or
(b) ceasing to be empowered under the Act to make an order
prohibiting the acquisition of the Shares by the Buyer and the
transactions contemplated by the Other Agreements;
whichever occurs first.
4.3 NOTICE TO BE GIVEN TO TREASURER
The Buyer must:
(a) give notice to the Treasurer under section 25 of the Act in
the prescribed form; and
(b) comply with all directions on that form;
within TEN (10) Business Days from the date of this Agreement.
4.4 PARTIES' OBLIGATIONS
(a) The Buyer must use all reasonable endeavours to obtain the
approval of the Treasurer to the Sale under the Act.
(b) The Parties must (and the Seller must ensure that the Company
will) do all things and provide all information and documents
required by the Treasurer or the Foreign Investment Review
Board in connection with the application for approval of the
Sale under the Act as soon as reasonably practicable after
being notified of the required things, information or
documents.
4.5 BENEFIT OF CONDITION
This Condition:
(a) is for the benefit of the Seller and the Buyer; and
(b) may not be waived.
4.6 CONDITION NOT FULFILLED
If approval of the Treasurer is denied, then:
(a) the Sale will terminate automatically without notice; and
(b) subject to the rights of either Party in respect of any
antecedent breach of the provisions of this Agreement:
(i) neither the Seller nor the Buyer will have any claim
against the other; and
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(ii) this Agreement, other than this subclause, will have
no further effect.
5. SALE AND PURCHASE
At Completion, the Seller agrees to sell and transfer to the Buyer,
and the Buyer agrees to purchase from the Seller the Shares free from
Encumbrances for the Purchase Price on the terms and conditions of
this Agreement.
6. CONSIDERATION
6.1 PURCHASE PRICE
The Buyer shall pay the Seller the Purchase Price subject to any
adjustments required by this Agreement.
6.2 BUYER ACCOUNT
The Buyer must pay to the Seller in addition to the Purchase Price the
amount charged to the Buyer Account plus interest at the Agreed Rate
calculated daily and compounded monthly.
6.3 SELLER ACCOUNT
The Seller must pay by way of a deduction to the Purchase Price the
amount charged to the Seller Account plus interest at the Agreed Rate
calculated daily and compounded monthly.
6.4 PAYMENT
Other than in respect of the amounts agreed or determined under
Schedule Four, the payments under this Clause shall be paid at
Completion and the Buyer Account and the Seller Account may be offset
so that only one payment is made as between the Buyer and the Seller
(ADJUSTMENT AMOUNT).
6.5 INTER-COMPANY LOANS
In addition to the amounts payable by the Buyer to the Seller under
this clause, the Buyer must make sufficient funds available to the
Company to enable the Company to discharge the Inter-company Loans at
Completion.
6.6 POST COMPLETION/FINAL ADJUSTMENT
Any matters not finally determined by and paid on the Completion Date
will be resolved and payment made pursuant to the procedure described
in Schedule Four.
6.7 FURTHER ADJUSTMENT
If at any time during the period of THREE (3) years following the
Completion Date the:
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(a) Buyer becomes:
(i) entitled to or receives funds, revenues, refunds,
credits or payments; or
(ii) liable to pay (and subject to this clause, does or
agrees to pay) costs, expenses and expenditure;
which are attributable to the Assets and relate to the period
before the Effective Date; or
(b) Seller becomes:
(i) entitled to or receives funds, revenues, refunds,
credits or payments; or
(ii) liable to pay (and subject to this clause, does or
agrees to pay) costs, expenses and expenditure;
which are attributable to the Assets and relate to the period
after the Effective Date;
(in all cases, which amounts or liabilities were not otherwise
specifically adjusted for in this Agreement), in an amount or amounts
aggregating or exceeding not less than TEN THOUSAND DOLLARS
($10,000.00), then
(c) the Buyer shall account to the Seller within THIRTY (30) days
of such adjustments in respect of paragraphs 6.7(a)(i) and
6.7(b)(ii); and
(d) the Seller shall account to the Buyer within THIRTY (30) days
of such adjustments in respect of paragraphs 6.7(a)(ii) and
6.7(b)(i),
for such funds, revenues, liabilities, costs, expenses, refunds,
credits or payments and, where an amount relates partially to periods
before and after the Effective Date, then the amount shall be
equitably apportioned between the Seller and the Buyer. A Party shall
be entitled to set off amounts payable by the other Party in making
account to that other Party. A reference to the Buyer and the Seller
in paragraphs (a) and (b) of this Clause includes a reference to the
Company, where the Company receives an amount or incurs a liability to
be adjusted under this Clause.
7. ACCESS TO COMPANY RECORDS
From the date of this Agreement, the Seller shall and shall cause the
Company to allow reasonable access by the Buyer to all of the
Company's books, accounts and documents in connection with the Company
and the Shares, and information concerning the Company relevant to the
Sale.
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8. PERIOD BEFORE COMPLETION
8.1 CARRYING ON OF BUSINESS
The Seller shall cause that between the date of execution of this
Agreement and the Completion Date:
(a) the Company informs and consults with the Buyer on all
material matters relating to the conduct of the business of
the Company and will procure that such business is conducted
in a diligent and ordinary and usual manner. In particular,
but without prejudice to the generality of the foregoing, the
Seller will procure that the Company consults with the Buyer
before the Company:
(i) approves any new or varied programme and budget of
operations;
(ii) approves any drilling operations which are not at the
date of this Agreement approved or identified in an
approved programme and budget;
(iii) approves any other matter likely to affect in any
material respect the nature or extent of expenditure
obligations of the Company;
(iv) in any other respect, exercises any voting right
under any Joint Venture Contract;
(b) the Company does not acquire or dispose of any Asset, other
than acquisitions or disposals of Petroleum, stocks or
receivables in the ordinary course of business without the
prior written consent of the Buyer;
(c) the Company does not create any Encumbrances over any of the
Assets without the prior written consent of the Buyer;
(d) the Company pays when due all cash calls under the Joint
Venture Contracts;
(e) the Company does not vary the terms of sale of its share of
Petroleum derived from the Assets pursuant to the Sale
Contracts;
(f) without the prior written approval of the Buyer (which
approval shall not be unreasonably withheld), the Company will
not:-
(i) give notice of or otherwise institute in any sole
risk or non-consent operation;
(ii) farm-out the Assets;
(iii) surrender or relinquish of any part of the Assets; or
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(iv) execute any instrument amending, waiving or
cancelling any provision of the Joint Venture
Contracts;
(g) the Company provides to the Buyer copies of all material
notices issued by the Operator in respect of the Assets;
(h) the Company does not issue any shares, options or securities
which are convertible into shares in the Company;
(i) the Company does not engage any employees;
(j) the Company does not alter its memorandum or Articles of
Association without the prior written consent of the Buyer;
(k) the Company does not incur any liabilities, enter into any
contract or commitment or engage in any activity other than in
the ordinary course of business; and
(l) the business of the Company is conducted so as to comply in
all material respects with all applicable laws and regulations
PROVIDED THAT the Seller will not be liable to the Buyer for any
breach of an obligation imposed in this Clause 8.1 which arises from a
course of action, to the extent that the Seller has consulted with the
Deputy Managing Director of the Buyer prior to undertaking such course
of action and the Buyer has not objected in writing as soon as
practicable after such consultation.
8.2 ACCESS TO INFORMATION
(a) In addition to its obligations under Clause 8.1, the Seller
will procure that the Company will, subject to any
confidentiality restrictions contained in the Joint Venture
Contracts and this Agreement and subject to reasonable notice,
give the Buyer reasonable access to the Information and any
other matters relating to the Assets during normal working
hours and provide copies thereof, at the Buyer's cost.
(b) In exercising its rights under Clause 8.2(a), the Buyer will
not unreasonably interfere with the business or operations of
the Seller or the Company.
(c) If this Agreement is terminated for whatever reason, the Buyer
must promptly return all Information to the Seller.
8.3 INSURANCE
During the Interim Period, the Seller will ensure that the Company
maintains the insurances taken out in respect of the Assets as at the
Effective Date. These insurances will be at the cost of the Buyer and
adjusted for under Schedule 4.
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9. COMPLETION
9.1 COMPLETION LOCATION
Completion will take place at the Seller's Solicitors' office.
9.2 COMPLETION DATE
The Parties must effect Completion on the Completion Date at a time
agreed by the Buyer and the Seller.
9.3 SELLER'S OBLIGATIONS
At Completion, the Seller must deliver to the Buyer:
(a) a duly executed but unstamped transfer of the Shares, together
with the relevant share certificates;
(b) (i) the common seal and any duplicate or official seals;
(ii) any Memorandum and Articles of Association of the
Company in the possession of the Seller;
(iii) all minutes of meetings of directors and shareholders
of the Company;
(iv) all registers of the Company;
(v) copies of all income tax returns lodged by the
Company before the Completion Date and supporting tax
return work papers in possession of the Company;
(vi) all books, ledgers, records and other documents and
data of the Company in either written or electronic
form; and
(vii) a signed notice to each Purchaser under the Sale
Contracts nominating a new Bank Account into which
proceeds of sale of Petroleum can be made;
(c) a release and discharge in favour of the Company in respect of
the Inter-company Loans;
(d) a legal opinion by the Seller's Solicitors in a form
reasonably satisfactory to the Buyer and the Buyer's
Solicitors stating that this Agreement is, and will be,
enforceable against the Seller in all respects in accordance
with its terms;
(e) a certificate signed on behalf of the Seller by two authorised
officers (AUTHORISED OFFICERS) stating that all the
representations and warranties given by the Seller in this
Agreement are true and correct as at Completion and that the
Seller is not in breach of any of its obligations under this
Agreement;
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(f) copies of board resolutions certified as true and correct by
an Authorised Officer in which the directors of the Seller
authorise the execution of this Agreement and the performance
of the Seller of the transactions contemplated by this
Agreement;
(g) certificates of incumbency in respect of each Authorised
Officer confirming the authority of each of them to sign the
certificate referred to in Clause 9.3(e) on behalf of the
Seller; and
(h) the Adjustment Amount, if the Seller Account plus interest at
the Agreed Rate calculated daily and compounded monthly is
greater than the Buyer Account plus interest at the Agreed
Rate calculated daily and compounded monthly.
9.4 OTHER OBLIGATIONS OF SELLER ON COMPLETION
As part of Completion, on payment of the Purchase Price and, subject
to Clause 9.5(a), payment of the Adjustment Amount to the Seller and
the Inter-company Loans to Company, the Seller shall cause the
directors of the Company to hold a meeting with effect at Completion
at which the directors, in accordance with the Company's articles of
association:
(a) appoint the Buyer's nominees as additional directors of the
Company;
(b) appoint the Buyer's nominee as an additional secretary of the
Company;
(c) approve for registration, subject to payment of stamp duty,
the transfer of the Shares to the Buyer;
(d) (i) authorise the signature of all authorities necessary
to revoke all existing authorities to bankers in
relation to the operation of the Bank Accounts; and
(ii) appoint, in the manner the Buyer directs, the Buyer's
nominees as the persons authorised to operate the
Bank Accounts.
(e) table and accept resignations of:
(i) the public officer;
(ii) the secretary, other than the secretary nominated by
the Buyer; and
(iii) the directors, other than the directors nominated by
the Buyer;
to take effect on and from the close of business of the
meeting; and
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(f) sign all forms required to be signed by the outgoing directors
and secretary under the Corporations Law.
9.5 THE BUYER'S OBLIGATIONS AT COMPLETION
At Completion, the Buyer must:
(a) by means of confirmed electronic funds transfer to a bank
account in the name of the Seller as nominated by the Seller
to the Buyer for value at Completion in Australian dollars:
(i) pay to the Seller the Purchase Price and, if the
Buyer Account plus interest at the Agreed Rate
calculated daily and compounded monthly is greater
than the Seller Account plus interest at the Agreed
Rate calculated daily and compounded monthly, the
Adjustment Amount; and
(ii) procure that the Company pays to the Seller the
agreed sum in respect of the Inter-company Loans on
Completion;
(b) deliver to the Seller:
(i) a legal opinion by the Buyer's Solicitors in a form
reasonably satisfactory to the Seller and the
Seller's Solicitors, stating that this Agreement is,
and will be, enforceable against the Buyer in all
respects in accordance with its terms;
(ii) a certificate signed on behalf of the Buyer by two
authorised officers (AUTHORISED OFFICERS) stating
that all the representations and warranties given by
the Buyer in this Agreement are true and correct as
at Completion and that the Buyer is not in breach of
any of its obligations under this Agreement;
(iii) copies of board resolutions certified as true and
correct by an Authorised Officer in which the
directors of the Buyer authorise the execution of
this Agreement and the performance of the Buyer of
the transactions contemplated by this Agreement; and
(iv) certificates of incumbency in respect of each
Authorised Officer confirming the authority of each
of them to sign the certificate referred to in
paragraph (ii) on behalf of the Buyer.
9.6 COMPLIANCE
Neither the Buyer nor the Seller will be obliged to proceed to
Completion unless:
(a) there is no material breach of Clause 8 which remains
unremedied; and
(b) the other of them complies with all of its obligations under
this Clause 9.
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9.7 OTHER DOCUMENTS
As soon as possible after Completion, the Seller will cause to be
delivered at the Buyer's cost to the Buyer:
(a) all technical and other data, books, records, accounts,
contracts, maps, notes, drawings and other information
(regardless of form) constituting the Information in the
possession and the control of the Seller requested by the
Buyer; and
(b) all original Joint Venture Contracts and Sales Contracts (to
the extent that they are in the possession of or under the
control of the Seller) or otherwise copies thereof and any
other document that evidences the Company's title to Assets.
10. POST COMPLETION
10.1 EXERCISE OF RIGHTS
From Completion and until the Shares are registered in the name of the
Buyer, the Seller agrees, in relation to the Shares, at the cost of
the Buyer, to act in accordance with the directions of the persons
appointed under Clause 9.4(a).
10.2 CHANGE OF NAME
The Buyer shall cause the Company to change its name to a name not
associated with the Seller or any Related Body Corporate of the Seller
and register the proposed change of name with the appropriate
regulatory authority for approval within TEN (10) Business Days of
Completion.
10.3 INDEMNITY
The Buyer indemnifies and holds harmless the Seller from any and all
liability whatsoever arising out of the implementation of any
direction given under Clause 10.1.
10.4 POST COMPLETION AUDIT OF OPERATOR'S ACCOUNTS
(a) The Buyer acknowledges that for a period of THREE (3) years
after the Completion Date the Seller retains its rights to
participate in the audits of the Operator's books to be
conducted under the terms of the Joint Venture Contracts
(subject to any confidentiality restrictions contained in the
Joint Venture Contracts and the Buyer agrees to use its
reasonable endeavours to enable the Seller to so participate)
in respect of the period prior to the Effective Date (and may
nominate a representative to attend as a representative of the
Buyer at its own cost) and will be entitled to and responsible
for any adjustment made to any account maintained under the
Joint Venture Contracts arising as a result of any such audit
in respect of the period prior to the Effective Date.
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(b) If as a consequence of such audit, adjustments are made to any
of the entries in the Working Capital Statement referred to in
Schedule Four, a further adjustment will be paid to the Party
entitled within THIRTY (30) Business Days of the results of
that audit, provided that no claim can be made under this
Clause unless the net balance due is greater than TEN THOUSAND
DOLLARS ($10,000).
10.5 PRESERVATION OF RECORDS
(a) The Buyer must, at its own expense, preserve and keep the
records held by it or the Company relating to the business of
the Company for a period of SIX (6) years from the Completion
Date and shall make such records and personnel available to
Seller as may be reasonably required by Seller in connection
with, among other things, any insurance claim, legal
proceedings, the tax affairs of the Seller or any governmental
investigation (including investigation and audits by any
taxing authority) relating to the business of the Company
prior to the Completion Date.
(b) The Buyer consents to the Seller retaining copies of all
corporate and Tax records relating to the Company or the
Assets provided that the Seller shall not use or disclose them
for any purpose other than as contemplated under Clause
10.5(a).
11. TAX REQUIREMENTS
11.1 INFORMATION
The Seller agrees to make available to the Buyer all information in
its custody or control relating to the Company or relating to the
Assets in respect of any period before the Completion Date which the
Buyer needs to know to enable it to cause the Company to complete any
Tax return or to make any claim for the undeducted allowable
expenditure and the undeducted allowable capital expenditure.
11.2 REASONABLE ASSISTANCE
The Seller agrees to give to the Buyer all reasonable assistance in
connection with any tax audit of the Company after the Completion Date
in respect of any period before the Completion Date, provided that the
Seller's obligation under this clause terminates THREE (3) years after
the Completion Date.
11.3 TAX RETURNS
Any income tax return and supporting schedules submitted in relation
to the Company will be consistent with the rollover notices given by
the Company in connection with the divestment of the Prior
Subsidiaries and Prior Properties and copies will be provided to the
Seller.
11.4 BUYER OBLIGATIONS
The Buyer will not:
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(a) in relation to any Tax, amend any declaration, election or
selection, the giving of a notice or the exercise of an option
by the Company in respect of the period ending before the
Completion Date without the Seller's prior written consent,
which consent shall not be unreasonably withheld;
(b) fail to submit any income tax return in relation to the
Company for any period which includes the period commencing on
the day following the Completion Date and ending at the end of
the tax year in which the Completion Date occurs; or
(c) amend any income tax return of the Company for any tax year
ending at or prior to the end of the tax year in which the
Completion Date occurs without the Seller's prior written
consent, which consent shall not be unreasonably withheld.
In this clause, "tax year" means a year ending on 30 June or, where
the company has a substituted accounting period (within Section 18 of
the Income Tax Assessment Act 1936, as amended) ending on some date
other than 30 June, that date.
11.5 SELLER OBLIGATIONS
The Seller will not submit any income tax return in relation to the
Company for any period ending before the Completion Date without the
Buyer's prior written consent, which consent must not be unreasonably
withheld.
11.6 U.S. INCOME TAX STATUS
The Buyer acknowledges that the Company has or will have status as a
branch of the Seller for United States income tax purposes and agrees
that the Seller may take all such actions as it deems appropriate for
the Company to qualify as a branch of the Seller for United States
income tax purposes in respect of the period prior to and ending on
the Completion Date.
12. WARRANTIES
12.1 SELLER
The Seller makes the Warranties in favour of the Buyer as at the
Effective Date and as at the Completion Date. The Warranties are made
subject to the qualifications made in this Agreement and in the
Schedules and subject to any disclosures made by the Seller in writing
on or prior to the date of this Agreement.
12.2 BUYER
The Buyer makes the Warranties in favour of the Seller as at the
Effective Date and as at the Completion Date. The Warranties are made
subject to the qualifications made in this Agreement and in the
Schedules.
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12.3 NO WARRANTY UNLESS EXPRESSLY INCLUDED
(a) Save as and only to the extent set forth in Clause 12.1, the
Seller makes no representations or warranties in respect of
any matter or thing and disclaims all liability and
responsibility for any representation, warranty, statement,
opinion or information made or communicated (orally or in
writing) to the Buyer (including, without limiting the
generality of the foregoing, any representation, warranty,
statement, opinion, information or advice made and
communicated to the Buyer by any officer, stockholder,
director, employee, agent, consultant, counsel or adviser of
the Seller or a tender document) and the Buyer acknowledges
and affirms that it has not relied upon any such
representation, warranty, statement, opinion or information in
entering into or carrying out the transactions contemplated by
this Agreement.
(b) Subject to the Warranties, the Buyer acknowledges and affirms
that it has made its own independent investigation, analysis
and evaluation of the geological, geophysical and engineering
interpretations, economic valuations and assessment of tax
allowances and prospects for development of the Assets and
acknowledges and affirms that in making the decision to
purchase the Assets, it has relied to that extent upon its
independent investigation and those of its representatives,
including professional, legal, tax, economic, financial,
business and other advisers.
(c) The Buyer acknowledges that subject in all respects to the
Warranties:
(i) it has made its own enquiries and has undertaken
assessments and due diligence with respect to the
Company, the Assets and the business conducted by the
Company and has satisfied itself as to the Company's
interest in the Titles as set out in Schedule 1 and
the Joint Venture Contracts set out in Schedule 5,
prior to entering into this Agreement;
(ii) it and its advisers have completed a review of the
financial records of the Company for the purpose of
verifying the accounts of the Company;
(iii) it has not relied on any representation made by or on
behalf of the Seller in making its decision to enter
into this Agreement other than the Warranties;
(iv) the Seller gives no representation or warranty in
respect of the existence or absence of common law or
statutory native title rights in respect of the
Assets or whether any claim for native title rights
exists or will arise in respect of the Assets and the
Buyer acknowledges that it has conducted its own
enquiries with respect to native title matters;
(v) the Seller is induced to enter into this Agreement in
consequence of these acknowledgments; and
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(vi) the Seller gives no representation or warranty as to
any Tax balances of the Company, and to the extent
Tax balances can be calculated from or derived from
the Balance Sheet, any warranty and representation in
respect of such balances, their calculation or
derivation is denied and the Buyer shall have no
claim whatsoever against the Seller in respect
thereof.
(d) The Buyer agrees that it has actual or constructive knowledge
of some of the subject matter of the Warranties and any breach
of Warranty will not be enforceable against the Seller to the
extent it is shown that the inaccuracy, error or omission
underlying the alleged breach was known or was constructively
known by the Buyer at or prior to the time the Buyer entered
into this Agreement.
(e) Without prejudice to the generality of the foregoing, the
Seller makes no representations or warranties as to:
(i) the amounts of reserves attributable to and the field
life of the Assets;
(ii) any geological, geophysical, engineering, economic or
other interpretations, forecasts or evaluations; or
(iii) whether any Tax allowances will in fact be deductible
in the hands of the Company.
12.4 REASONABLE ENQUIRY
Where any Warranty is qualified by any reference to the knowledge or
awareness or belief of any Party, there shall be implied in that
warranty or representation a warranty that such Party has made
reasonable enquiries concerning the subject matter of that warranty or
representation, save that it shall not be deemed to have made
enquiries of any third party.
12.5 WARRANTIES - DURATION
The Warranties shall survive the Completion Date for a period of ONE
(1) year.
12.6 CONSEQUENTIAL LOSS
Notwithstanding any other provision of the Agreement, a Party shall
not under any circumstances be liable to the other under, arising out
of or in any way connected with this Agreement for any consequential
loss or damage whether arising in contract or tort (including
negligence or breach of any statutory duty). For the purposes of this
clause, consequential loss includes but is not limited to, any
obligation or inability to produce Petroleum, lost production or loss
of profits howsoever arising.
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12.7 LIMITATION ON CLAIMS
The Buyer's right to claim for and seek indemnity in respect of any
claim (whether relating to a breach of the Warranties or otherwise
relating to the subject matter of this Agreement) is limited as
follows:
(a) the Buyer must give written notice to the Seller of the
specific claim in question with reasonable details of the
relevant claim, including, if possible, the Buyer's estimate
of the amount of the claim, on or before the first anniversary
of the Completion Date;
(b) the Buyer can only bring a claim for breach of a Warranty or
otherwise relating to the subject matter of this Agreement if
the amount reasonably claimed exceeds (or where there is more
than one claim they exceed the aggregate) ONE HUNDRED THOUSAND
DOLLARS ($100,000.00);
(c) the maximum aggregate amount which the Buyer may recover from
the Seller for breach of the Warranties and the indemnities
under Clause 12.11 is the aggregate of the Purchase Price and
the amount paid by the Buyer in respect of Inter-Company
Loans.
12.8 CONDUCT OF CLAIMS
If the Buyer receives a claim from a third party which may give rise
to a claim against the Seller under this Agreement, the Buyer must
within TEN (10) Business Days of receipt, notify the Seller of the
claim giving full details so far as practicable and, if the Seller
indemnifies the Buyer and the Company to their reasonable satisfaction
against all and any costs, charges and expenses which may be incurred
or for which they may become liable, the Buyer must take such action
as the Seller reasonably instructs to avoid, dispute, resist, appeal,
compromise or defend any such claim and any adjudication in respect of
it.
12.9 BUYER'S REMEDIES
(a) Prior to the Completion Date, the Buyer may only rescind this
Agreement in accordance with Clause 12.9(b).
(b) If not less than THREE (3) Business Days before the Completion
Date, the Buyer becomes aware that the Seller is in breach of
any of the Warranties of the Seller or any other material
provision of this Agreement that has a material adverse effect
on the value of the Shares as at the Effective Date, the Buyer
shall promptly provide the Seller with written notice
containing reasonable details of the said breach in which case
the Completion Date shall be automatically extended for a
period of TEN (10) Business Days. The Parties will use all
reasonable efforts to resolve the matter, failing which the
Buyer may not less than THREE (3) Business Days prior to the
extended Completion Date, by notice in writing to the Seller
elect to:
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(i) proceed to Completion on the extended Completion
Date, whereupon no Party shall have any further
liabilities or obligations to the other whatsoever in
respect of the breach notified; or
(ii) (without prejudice to any other right or other remedy
it may have and subject always to Clause 12.7)
rescind this Agreement.
12.10 NON-MERGER OF WARRANTIES
No Warranties merge on Completion.
12.11 PRIOR PROPERTIES AND PRIOR SUBSIDIARIES
(a) The Seller indemnifies the Buyer against any liability that
the Buyer or the Company incurs in connection with:
(i) the business carried on by the Company prior to the
Completion Date in respect of the Prior Properties;
(ii) the business carried on by the Prior Subsidiaries
during the period when the Company owned the shares
or stock in such corporations; and
(iii) the divestment by the Company of the Prior Properties
or the Prior Subsidiaries.
(b) The indemnity contained in Clause 12.11(a):
(i) shall expire and shall not be enforceable against the
Seller unless a claim is notified to the Seller in
the manner set out in Clause 12.7 within ONE (1) year
of the Completion Date and
(ii) does not extend to any matter relating to Tax whether
arising from the Prior Properties, the Prior
Subsidiaries, the business of the Company or
otherwise and the Buyer releases the Seller in
respect to all such matters.
(c) The Seller indemnifies the Buyer against any liability (other
than a liability for Tax) that the Company incurs in
connection with the Perth Basin production licences Nos. L1
and L2 and pipeline licences Nos. PL1, PL2, PL3, PL5 and PL23
sold to CMS Gas Transmission of Australia provided that the
indemnity contained in this Clause 12.11(c) shall expire and
not be enforceable against the Seller unless a claim is
notified to the Seller in the manner set out in Clause 12.7 on
or prior to 30 June 2002.
12.12 RECLAMATION OBLIGATIONS
All costs, expenses, risks, liabilities and obligations respecting the
abandonment of any wells which are part of the Assets, closure,
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decommissioning and dismantling the facilities of the Company and any
reclamation and restoration of all sites shall be borne and paid for
solely by the Buyer, its successors or assigns, and the Buyer, its
successors or assigns shall indemnify, defend and save harmless the
Seller from and against any claims or demands (including breach of
statutory duty) by any person for or resulting in expense, liability,
loss, costs, claims or damages direct or indirect (including the
effects of, and the costs of complying with any order direction, or
claim of any government or agency having jurisdiction) pertaining to
the foregoing operations conducted or failed to be conducted by the
Buyer, its successors or assigns after Completion.
12.13 BUYER'S INDEMNITY-ENVIRONMENTAL DAMAGE
(a) The Buyer, its successors or assigns, shall, after Completion,
be liable to the Seller for all loss, costs, damages or
expenses which the Seller may suffer and, in addition, shall
indemnify, defend and save harmless the Seller from and
against any claims or demands (including breach of statutory
duty) or damages, direct or indirect, before, on and after
Completion (including the effects of, and the costs of
complying with, any order, direction, or claim of any
government or agency having jurisdiction) arising out of or
resulting from Environmental Damage caused or alleged to have
been caused in respect of the Assets.
(b) For the purpose of this clause:
ENVIRONMENTAL DAMAGE means any one or more of:
(i) ground water, surface water or aquifer contamination;
(ii) soil contamination;
(iii) corrosion or deterioration of structures, equipment,
fences and other property;
(iv) toxic or hazardous substance releases or emissions;
(v) death or injury to human beings caused in whole or in
part by any of items (i) through (iv) above;
(vi) death or injury to plants and animals caused in whole
or in part by any of items (i) through (iv) above;
and
(vii) natural resource damages.
13. TERMINATION AND DAMAGES
13.1 RIGHT TO TERMINATE
If not less than THREE (3) Business Days before the Completion Date,
the Buyer is in breach of any of the Warranties of the Buyer or any
other material provision of this Agreement such that the interest of
the Seller under this Agreement is materially adversely affected, then
the Seller shall promptly
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provide the Buyer with written notice containing reasonable details of
the said breach in which case the Completion Date shall be
automatically extended for a period of TEN (10) Business Days. The
Parties will use all reasonable endeavours to resolve the matter,
failing which the Seller may not less than THREE (3) Business Days
prior to the extended Completion Date, by notice in writing to the
Buyerelect to:
(a) complete this Agreement on the extended Completion Date,
whereupon no Party shall have any further liabilities or
obligations to the other whatsoever in respect of the breach
notified; or
(b) terminate its obligations under this Agreement, without
prejudice to any right or other remedy it may have against the
Buyer.
13.2 REMEDY
The Seller may not give a notice under Clause 13.1(a) or (b) to the
Buyer where the breach is capable of remedy and has been remedied by
not less than THREE (3) Business Days before the extended Completion
Date.
13.3 OTHER TERMINATION RIGHTS
Either the Buyer or the Seller may terminate this Agreement by written
notice to the other of them where:
(a) the other of them convenes a meeting of its creditors or
proposes or enters into a scheme of arrangement or composition
with its creditors;
(b) there is a liquidation of the other of them;
(c) a receiver or receiver and manager is appointed to the other
of them;
(d) a person holding a security interest over the assets of the
other of them takes or attempts to take possession of those
assets;
(e) an administrator is appointed to the other of them under Part
5.3A of the Corporations Law; or
(f) the other Party repudiates its obligations under this
Agreement.
14. COSTS, EXPENSES AND DELAYED PAYMENT
14.1 STAMP DUTY
(a) The Buyer must pay any stamp duty in respect of the execution,
delivery and performance of this Agreement and any agreement
or document entered into or signed in contemplation of this
Agreement.
(b) The Buyer must pay any fine, penalty or other cost in respect
of a failure to pay any stamp duty for which it is responsible
under Clause 14.1(a), except to the extent that the fine,
penalty or other cost is caused by an act or default on the
part of the Seller.
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(c) The Buyer must within FIFTEEN (15) Business Days of the date
of this Agreement submit this Agreement for an assessment of
stamp duty and use its reasonable endeavours to secure and pay
an assessment in respect of this Agreement as soon as
practicable and will keep the Seller appraised of progress.
The Seller agrees to assist the Buyer when requested and, in
particular, to respond to requisitions (if any) for further
information.
14.2 COSTS AND EXPENSES
Subject to Clause 14.1, each Party must pay its own costs and expenses
in respect of the negotiation, preparation, execution, delivery and
registration of this Agreement or other Agreement or document entered
into or signed in connection with the subject matter of this
Agreement.
14.3 LATE INTEREST
Without prejudice to any other rights under this Agreement, if any
amount payable under this Agreement is not paid when due, the
defaulting Party shall pay interest on a daily basis on such amount
from the due date of payment (after as well as before judgment) at a
rate equal to SIX PER CENT (6%) over the Agreed Rate.
15. CONFIDENTIALITY AND ANNOUNCEMENTS
15.1 AGREED ANNOUNCEMENTS
No Party shall, without the written consent of the other Party (which
consent shall not be unreasonably withheld), issue or make any public
announcement relating to, or disclose anything regarding, this
Agreement.
15.2 LEGAL REQUIREMENTS
(a) If a Party is required to disclose anything in respect of this
Agreement in order to comply with:
(i) applicable law; or
(ii) the requirements of any recognised stock exchange on
which a Parties' or its Related Body Corporates'
shares are listed;
then the Parties shall agree on the form and substance of such
disclosure and a copy of the same shall be furnished to the
other Parties prior to publication or release.
(b) A Party will be deemed to have agreed to the terms of any
disclosure if it has not objected to the form or substance of
such release within ONE (1) Business Day of it being received
by the Party. Each Party agrees to use its best endeavours to
approve releases as soon as possible so that Parties are able
to comply with statutory or stock exchange requirements.
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16. ASSIGNMENT
Neither Party may assign the rights under, or the benefit or the
burden of, this Agreement.
17. NOTICE
A notice, demand, consent or authority given or made to a person:
(a) must be in writing;
(b) may be given or made by:
(i) delivering it to that person personally;
(ii) addressing it to that person and either leaving it
at, or posting it to, the address of that person
appearing in this Agreement or any other address
nominated by that person by notice to the person
giving the notice; or
(iii) sending a facsimile copy of the notice to the
facsimile copier number nominated by that person by
notice to the person giving the notice; and
(c) will be deemed to be given or made:
(i) if by leaving it at the address of that person, when
left at that address;
(ii) if by post, on the second Business Day after the date
of posting (if posted to an address in the same
country) or on the seventh Business Day after the
date of posting (if posted to an address in another
country);
(iii) if by facsimile, on receipt by the sender of a
transmission control report from the despatching
machine showing the relevant number of pages and the
correct destination facsimile machine number and
indicating that the transmission had been made
without error,
but if the result is that a notice would be taken to be given
or made on a day which is not a Business Day in the place to
which the notice is sent or is later than 4.00pm (local time)
it will be taken to have been duly given or made at the
commencement of business on the next Business Day in that
place.
18. PROPER LAW
This Agreement is governed by, and to be interpreted in accordance
with, the laws of Western Australia and where applicable the laws of
the Commonwealth of Australia.
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19. JURISDICTION
The Parties agree to submit to the jurisdiction of the courts of
Western Australia and if applicable the Commonwealth of Australia.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which is an original instrument and all of which constitute one and
the same instrument.
21. ENTIRE AGREEMENT
21.1 AGREEMENT CONSTITUTES ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter of this Agreement and contains all
of the representations, warranties, covenants and agreements of the
Parties and supersedes all prior agreements and understandings in
relation to the subject matter of the Agreement as at the date of this
Agreement, other than the confidentiality agreement entered into by
the Parties prior to execution of this Agreement which remains in
force until Completion.
21.2 NO RELIANCE ON ORAL REPRESENTATIONS
Each Party acknowledges that it has not relied on any oral statement,
representation, undertaking, covenant or agreement made before the
date of this Agreement relating to the subject matter of this
Agreement and not contained in this Agreement.
22. MORATORIUM NOT TO APPLY
To the fullest extent permitted by law, the provisions of a statute
which would, but for this clause:
(a) extend or postpone the date of payment of money; or
(b) abrogate, nullify, postpone or otherwise affect any condition;
under this Agreement do not apply to limit or affect the terms of this
Agreement.
23. SEVERANCE
(a) If any part of this Agreement is, or becomes, void or
unenforceable, that part is, or will be, severed from this
Agreement so that all parts that are not, or do not become,
void or unenforceable remain in full force and effect and are
unaffected by that severance.
(b) If any provision of this Agreement, or the application thereof
to any person or any circumstance, is invalid or
unenforceable, a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such
25.
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invalid or unenforceable provision and the remainder of this
Agreement and the application of such provision to other
persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other
jurisdiction.
24. WAIVERS
24.1 FAILURE OR DELAY IS NOT WAIVER
Failure to exercise or delay in exercising any right, power or
privilege by a Party does not operate as a waiver of that right, power
or privilege.
24.2 PARTIAL EXERCISE DOES NOT PRECLUDE FURTHER EXERCISE
A single or partial exercise of any right, power or privilege by a
Party does not preclude:
(a) any other or further exercise of that right, power or
privilege; or
(b) the exercise of any other right, power or privilege.
25. VARIATION
This Agreement may be varied only by agreement in writing signed by
the Parties.
26. FURTHER ASSURANCES
Each Party must execute and do all acts and things necessary or
desirable to implement and give full effect to the provisions and
purpose of this Agreement.
27. MERGER
The rights and obligations of the Parties will not merge on the
completion of any transaction contemplated by this Agreement. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
28. INTERPRETATION
28.1 REFERENCE TO A STATUTE
A reference to a statute includes a regulation, by-law, requisition
and order made under that statute and any amendment to or re-enactment
of that statute, regulation, by-law, requisition or order for the time
being in force.
28.2 JOINT AND SEVERAL COVENANTS
If the Buyer comprises two or more persons, the covenants and
agreements on their part bind and must be observed and performed by
them jointly and
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each of them severally and may be enforced against any one or any two
or more of them.
28.3 LAST DAY NOT A BUSINESS DAY
When the day or last day for doing an act is not a Business Day in the
place where that act is to be done, the day or last day for doing the
act will be the next following Business Day in the place where that
act is to be done.
28.4 HEADINGS
Except in the Schedule, headings in this Agreement are for convenience
and identification of clauses only and do not otherwise affect its
interpretation.
28.5 REFERENCE TO OTHER DOCUMENT
Subject to any contrary provision in this Agreement, a reference to
any other deed, agreement, instrument or contract (including the Joint
Venture Contracts and the Sales Contracts) includes a reference to
that other deed, agreement, instrument or contract as amended,
supplemented or varied from time to time.
28.6 REFERENCE TO A PARTY
Unless contrary to the sense or context, a reference to a Party
includes that Party's administrators, personal representatives,
successors and assigns, and if the Buyer comprises two or more
persons, administrators, personal representatives, successors and
assigns of each of those persons.
28.7 SINGULAR, PLURAL AND GENDER
Where applicable:
(a) words denoting the singular include the plural;
(b) words denoting the plural include the singular; and
(c) words denoting a gender include each gender.
28.8 REFERENCE TO A PERSON AND A BODY CORPORATE
Where applicable:
(a) a reference to a body corporate includes a natural person; and
(b) a reference to a person includes a body corporate.
28.9 PROFESSIONAL BODY
A reference to a professional body includes a successor to or
substitute for that body.
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28.10 PARTIES IN INTEREST
This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns. Nothing
in this Agreement, express or implied, is intended to confer upon any
person other than the Buyer, the Seller or their respective successors
or permitted assigns, any rights or remedies under or by reason of
this Agreement.
EXECUTED BY THE PARTIES
THE COMMON SEAL of AMPOLEX )
LIMITED ACN 000 113 217 is affixed ) [SEAL]
in accordance with its articles of )
association in the presence of: )
/s/ Dan P. Haworth /s/ Graeme K. Alexander
- ------------------------------ ------------------------------
Signature Director Signature Secretary*
Dan P. Haworth Graeme K. Alexander
- ------------------------------ ------------------------------
Print full name of signatory Print full name of signatory
* Delete if not applicable
SIGNED for and on behalf of )
APACHE ENERGY LIMITED )
ACN 009 301 964 by )
LISA A FLOYD as duly authorised ) /s/ Lisa A. Floyd
corporate representative ) ------------------------------
in the presence of: ) Lisa A Floyd
/s/ Eve A. Howell
- ------------------------------
Witness
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SCHEDULE ONE
1. TITLES
Production Licence WA-13-L
Pipeline Licence WA-5-PL
Pipeline Licence TPL/12
Pipeline Licence PL/29
Pipeline Licence PL/30
2. INTEREST
35% interest in the Assets.
3. SPECIFIED ENCUMBRANCES
None.
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SCHEDULE TWO
SELLER'S WARRANTIES
1. SHARES
1.1 The Seller is the registered holder and beneficial owner of the Shares
and has power to transfer title to the Shares being the only shares
issued in the capital of the Company.
1.2 The Shares have been validly issued, are fully paid and are free from
all Encumbrances.
1.3 There are no restrictions known to the Seller on the transfer of the
Shares, save that the approval of the board of directors of the
Company may be required in order to register the transfers.
1.4 The Company has not granted to any person a right to subscribe for or
acquire or convert any security into any of the Company's unissued
shares.
1.5 No person has any pre-emptive right with respect to any of the Shares.
1.6 The Company is not under an obligation to issue further shares.
1.7 There are no dividends declared by the Company which are not paid or
credited to a loan account of a shareholder of the Company.
2. STATUS OF THE COMPANY
2.1 The copy of the Memorandum and Articles of Association of the Company
initialled for identification by an officer of the Company and
produced prior to executing this Agreement is a true copy and includes
all amendments made up to the date of this Agreement.
2.2 No resolution to alter the Company's Memorandum or Articles of
Association as produced has been passed since the Effective Date, save
that Company has converted to a proprietary limited company.
2.3 The Company is not:
(a) wound up, no resolution for its winding up has been passed and
no meeting of members or creditors has been convened for that
purpose;
(b) the subject of a winding up application which has been made to
a Court, and no event has occurred which would entitle any
person to apply to a Court to wind up the Company;
(c) a party to a composition or arrangement with any of its
creditors;
(d) the recipient of a statutory demand under sections 459A-461 of
the Corporations Law;
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(e) in receivership and none of its assets is in the possession of
or under the control of a mortgagee or chargee; or
(f) subject to administration under Part 5.3A of the Corporations
Law,
and the Seller is not aware of any facts or circumstances which would,
or are likely to, result in any of the above.
2.4 The Company has not received from the Australian Securities Commission
any notice or warning of possible cancellation of registration of the
Company.
3. BALANCE SHEET
The Balance Sheet, to the best of the knowledge of the Seller and
subject to the notes to the accounts and other matters noted:
(a) presents a true and fair view of the financial position of the
Company as at the Effective Date; and
(b) has been prepared and audited in accordance with the relevant
accounting standards and generally accepted accounting
principles consistently applied.
4. TITLE TO ASSETS
The Company has good title to the Assets.
5. POWER OF ATTORNEY
The Company has not granted any power of attorney which will be
effective at or after Completion.
6. PROCEEDINGS PENDING
6.1 The Company is not engaged in any litigation, arbitration, prosecution
or other legal proceedings, or any proceedings or hearings before any
statutory or governmental body, department, board or agency.
6.2 To the Seller's best knowledge and belief there are no facts which are
likely to give rise to any litigation, arbitration, prosecution or
other legal proceedings, or any proceedings or hearings before any
statutory or governmental body, department, board or agency.
6.3 To the Seller's best knowledge and belief there are no facts
concerning the Prior Properties, Prior Subsidiaries or other assets
(other than the Assets) owned by the Company prior to the Effective
Date which are likely to give rise to any claim, litigation,
arbitration, prosecution or other legal proceeding or proceedings
which would materially and adversely affect the Company and its
Assets.
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6.4 The Seller gives no warranties and makes no representations whatsoever
in relation to the existence or absence of any claim, litigation,
arbitration, prosecution or other legal proceeding or proceedings or
hearings before any statutory or governmental body, department, board
or agency relating to any Tax and this Agreement is subject to this
paragraph.
7. BUSINESS SINCE EFFECTIVE DATE
Since the Effective Date:
(a) the Company has carried on business and dealt with its
property and assets only as a consequence of trading in the
ordinary course of business, save as disclosed by the Seller;
(b) no alteration has been made to the share capital of the
Company;
(c) the Company has not declared or paid any dividend or any
amount which may be deemed to be a dividend or passed any
special resolution;
(d) the Company has not granted any Encumbrance over or any part
of the Assets other than under the Joint Venture Contracts and
the Specified Encumbrances; and
(e) the Company has no employees.
8. CONTRACTS
8.1 To the best of the Seller's knowledge, all agreements binding on the
Company not entered into in the ordinary course of business of the
Company have been disclosed to the Buyer.
8.2 To the best of the Seller's knowledge, the Company is not party to any
agreement which may be terminated by any other party by reason of a
change in the ownership of the Shares by reason of the change being
subject to the consent of the other party, which consent has not been
obtained.
8.3 All material agreements entered into by the Company have been executed
in accordance with the Company's Articles of Association, are within
the authority of the Company and are valid and binding on the Company
and, to the best of the Seller's knowledge and belief, on the other
parties to those agreements.
9. SUBSIDIARIES
The Company has no subsidiaries at the Completion Date.
10. AUTHORITY
10.1 The Seller is duly incorporated with limited liability and validly
existing under the laws of its country and state of incorporation.
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10.2 The documents which contain or establish the Sellers' constitution
incorporate provisions which authorise, and all necessary corporate
action has been taken to authorise, the Seller to execute and deliver
this Agreement and this Agreement does, and the further documents to
be executed by the Seller hereunder will, constitute legal, valid and
binding obligations of the Seller enforceable against them in
accordance with their respective terms.
10.3 The signing and delivery of this Agreement and the performance of the
transaction contemplated by this Agreement will not contravene or
constitute a default under a provision contained in any agreement,
instrument, law, judgment, order, licence, permit or consent by which
the Seller is bound.
10.4 The Seller has not incurred any obligation or liability, contingent or
otherwise, for brokers' or finders' fees in respect of the transaction
under this Agreement for which the Buyer will have any obligation.
11. COMPLETENESS OF INFORMATION
The Seller has provided to the Buyer all information within its
knowledge which could reasonably be considered to be material in
relation to the Company, the Shares and the Assets or to their value.
12. ASSETS
12.1 The Company's legal and beneficial ownership of the Assets is as set
out in Schedule One, free and clear of all Encumbrances, other than as
there set out or in the Joint Venture Contracts, Specified
Encumbrances, the terms of grant of the Titles or under the Petroleum
Legislation.
12.2 The Joint Venture Contracts are to the best of the knowledge and
belief of the Seller, a complete list of all material agreements
constituting or regulating the interests of the Seller in the Titles.
12.3 The Seller has not received any notice of any material breach of its
obligations under the Joint Venture Contracts or the Sale Contracts.
12.4 The Seller is not in material default under the Joint Venture
Contracts or the Sale Contracts.
13. OPERATIONS
To the best of the knowledge and belief of the Seller:
(a) all material conditions and obligations to which the Assets
are subject have been complied with and performed; and
(b) all Petroleum operations with respect to the Assets have been
and are now conducted in accordance with applicable laws and
good oilfield practice.
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14. DEFAULT OF OTHER VENTURERS
The Company has not in the last TWELVE (12) months received any notice
of default in respect of any other party to the Joint Venture
Contracts.
15. COMPLIANCE
Except in relation to Tax matters:
(a) to the best knowledge and belief of the Seller there are no
material notices of any public or statutory authority
outstanding against the Company; and.
(b) the Company has complied in all material respects with the
provisions of all laws and regulations and all orders,
notices, awards and determinations made by any statutory or
other competent authority in any way relating to or binding on
the Company or the Assets.
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SCHEDULE THREE
BUYER'S WARRANTIES
WARRANTIES OF THE BUYER
(a) The Buyer is duly incorporated with limited liability and validly
existing under the laws of its country of incorporation.
(b) The signing and delivery of this Agreement and the performance of the
transactions contemplated by this Agreement will not contravene or
constitute a default under the provision contained in any agreement,
instrument, law, judgment, order, license, permit or consent by which
the Buyer is bound.
(c) The Buyer has not incurred any obligation or liability, contingent or
otherwise, for brokers' or finders' fees in respect of the transaction
herein provided for which the Sellers will have any obligation.
(d) The Shares are being purchased by the Buyer for its own account for
investment and not for purpose of, or with a view to, the resale or
distribution thereof.
(e) The documents which contain or establish the Buyer's constitution
incorporate provisions which authorise, and all necessary corporate
action has been taken to authorise, the Buyer to execute and deliver
this Agreement and this Agreement does, and the further documents to
be executed by the Buyer hereunder will, constitute legal, valid and
binding obligations of the Buyer enforceable against it in accordance
with their respective terms.
(f) The signing and delivery of this Agreement and the performance of the
transaction contemplated by this Agreement will not contravene or
constitute a default under a provision contained in any agreement,
instrument, law, judgment, order, licence, permit or consent by which
the Buyer is bound.
(g) The Buyer, on the Completion Date, will have sufficient funds to
effect Completion and all other transactions contemplated by this
Agreement.
(h) Except as specifically set forth in this Agreement, to the best
knowledge and belief of the Buyer no consent, approval, waiver or
authorisation is required to be obtained by the Buyer and no notice or
filing is required to be given by the Buyer with any federal, state,
local or other governmental authority in connection with the
execution, delivery and performance by the Buyer of this Agreement.
(i) The Buyer is not:
(i) wound up, no resolution for its winding up has been passed and
no meeting of members or creditors has been convened for that
purpose;
(ii) the subject of a winding up application which has been made to
a Court, and no event has occurred which would entitle any
person to apply to a Court to wind up the Buyer;
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(iii) a party to a composition or arrangement with any of its
creditors;
(iv) the recipient of a statutory demand under sections 459A-461 of
the Corporations Law;
(v) in receivership and none of its assets is in the possession of
or under the control of a mortgagee or chargee; or
(vi) subject to administration under Part 5.3A of the Corporations
Law.
(j) The Buyer has not received from the Australian Securities Commission
any notice or warning of possible cancellation of registration of the
Company.
(k) The Buyer is not engaged in any litigation, arbitration, prosecution
or other legal proceedings, or any proceedings or hearings before any
statutory or governmental body, department, board or agency which
would be likely to prejudice the Buyer's performance of its
obligations under this Agreement.
(l) There are no facts known to the Buyer which are likely to give rise to
any litigation, arbitration, prosecution or other legal proceedings,
or any proceedings or hearings before any statutory or governmental
body, department, board or agency involving the Buyer which would be
likely to prejudice the Buyer's performance of its obligations under
this Agreement.
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SCHEDULE FOUR
ACCOUNTS
1. PREPARATION
(a) The initial working capital statement at 30 June 1997 which is
based on the Balance Sheet is attached as Schedule Eight.
(b) The Seller shall procure that the Company prepares a statement
of Working Capital of the Company taking into account the
adjustments under Part 2 of this Schedule (WORKING CAPITAL
STATEMENT) not less than SEVEN (7) days prior to the
Completion Date;
(c) The Seller shall prepare the following statements of account:
(i) a profit and loss account in respect of the Assets
for the period from the Effective Date to the end of
the month immediately prior to the Completion Date
(ADJUSTMENT DATE) (PROFIT AND LOSS ACCOUNT); and
(ii) a statement of capital expenditure in respect of the
Assets from the Effective Date to the Adjustment Date
(CAPITAL STATEMENT).
(d) All amounts in US dollars are to be converted to Australian
dollars based on the transaction settlement date converted at
the Wholesale Market Hedge rate published in the Australian
Financial Review.
(e) The Working Capital Statement, the Profit & Loss Account and
the Capital Statement are referred to as the ACCOUNTS.
2. WORKING CAPITAL
(a) The working capital figure in the Working Capital Statement
will take into account the matters set out in this Part in
respect of the Assets, the Joint Venture Documents and the
hydrocarbons produced from the Assets.
(b) For the purpose of the Working Capital Statement, the working
capital figure will be based on, but not limited to, the
initial items taken from the initial Working Capital
Statement in Schedule Eight, but will be varied, to the extent
that any variation is necessary, to take into account:
(i) the purchase price of the hydrocarbons on hand as at
00:01 on the Effective Date determined in accordance
with paragraphs (c) and (d) (such amounts to be
treated as a current asset);
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(ii) the amount of any calls payable in respect of the
Assets after 00:01 on the Effective Date, which were
paid on or before the Effective Date (such amounts to
be treated as a current asset);
(iii) the amount of any calls payable in respect of the
Assets on or before 00:01 on the Effective Date,
which were unpaid on or before the Effective Date
(such amounts to be treated as a current liability);
(iv) any other outstanding amount by or to the Company in
respect of the Assets that relate to operations of
the Company on or before the Effective Date; and
(v) any over contribution or under contribution in
respect of the Company recorded in the books of the
Operator at the Effective Date.
(c) The Company's interest in the stock of hydrocarbons
attributable to the Assets on hand as at 00:01 on the
Effective Date comprises:
(i) liquids downstream of the wellheads as estimated by
the Operator; and
(ii) gas downstream of the low temperature separation
plant as estimated by the Operator.
(d) The purchase price of the hydrocarbons on hand will be:
(i) for all of such hydrocarbons, the actual proceeds of
sale; less
(ii) for all of such hydrocarbons, actual or (where no
actual is available) estimated transportation,
wharfage and royalty costs incurred through to the
point of sale, where estimates are based on the
average per barrel implied from actual payments over
the preceding three months.
3. PROFIT & LOSS ACCOUNT
(a) The Profit and Loss Account shall take into account:
(i) the amount of operating costs included in any calls
paid in respect of the Assets from the Effective Date
to the Adjustment Date and the costs of insurances
under Clause 8.3 (such amounts to be treated as
expenses); and
(ii) the amount of any cash received or entitled to be
received in respect of sales of hydrocarbons made
pursuant to the Sales Contracts and invoiced in the
period from the Effective Date to the Adjustment Date
and any other income received in respect of the
Assets (such amounts to be treated as revenue).
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(b) In this Part, if the total of revenue exceeds the total of
expenses, then the amount of the difference shall be charged
to the Seller Account, otherwise the amount of the difference
shall be charged to the Buyer Account.
4. CAPITAL STATEMENT
(a) The Capital Statement shall take into account the amount of
any capital cost or receipt comprised or adjusted for in any
call paid or received in respect of the Assets from the
Effective Date to the Adjustment Date (such amounts to be
treated as property, plant and equipment).
(b) In this Part, if the total of capital costs under paragraph
(a) exceeds the total of capital receipts, then the amount of
the difference shall be charged to the Buyer Account,
otherwise the amount of the difference shall be charged to the
Seller Account.
5. PROCEDURE TO AGREE ACCOUNTS
(a) Not less than SEVEN (7) Business Days prior to the projected
Completion Date, the Seller agrees to submit the Accounts to
the Buyer. The Seller will provide supporting documentation.
(b) Within FOUR (4) Business Days of the date on which the Seller
provides the Accounts (or such shorter time as the parties
agree), the Buyer agrees to advise the Seller in writing as to
any amounts it does not agree to, including its reasons.
(c) The Parties will in good faith seek to reach agreement without
delay on any amounts not agreed to between them.
(d) If no notice is given by the Buyer under paragraph (b) of this
Part, then the Accounts will be treated as the Accounts for
the purposes of determining the amounts to be paid or allowed
at Completion.
(e) If a notice is given by any Party under paragraph (b) of this
Part and the Parties do not resolve the matter within THREE
(3) Business Days prior to Completion, then the Parties will
pay at Completion the amounts in the Buyer Account and the
Seller Account not in dispute under clause 4 of the Agreement.
(f) If any amount is not agreed nor paid or allowed at Completion,
then either Party may give notice to the other that the matter
be referred to an Independent Accountant. The notice must
suggest a person to be the Independent Accountant and process
set out in Schedule 6 must be followed.
(g) If a reference is made to the Independent Accountant under
paragraph (f) of this Part, the terms of reference must be to
resolve the matters in dispute in accordance with the
principles set out in Parts 1, 2, 3 and 4 of this Schedule as
soon as possible. The Buyer and Seller must co-
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operate and make information available as requested by the
Independent Accountant. The Buyer and the Seller must ensure
that the Company promptly makes available such information as
the Independent Accountant may request in relation to the
matters in dispute. All correspondence between the Independent
Accountant and any Party must be promptly copied to the other
Party.
(h) The Independent Accountant must issue a certificate as to his
determination of the matters referred to him and of the
Accounts, adjusted (if necessary) to take account of his
determinations. The Buyer and Seller agree that in carrying
out this role, the Independent Accountant acts as expert and
not arbitrator and that, in the absence of fraud or mistake or
manifest error, the certificate issued by the Independent
Accountant will be final and binding on them.
(i) The Buyer and the Seller will bear equally the costs of the
Independent Accountant.
6. POST COMPLETION ADJUSTMENTS FOR PERIOD BETWEEN ADJUSTMENT DATE AND
COMPLETION
(a) Within THIRTY (30) days after the end of the month in which
Completion occurs the Seller will prepare the Accounts and
submit them to the Buyer, in each case made up to the
Completion Date.
(b) The Parties will follow the procedures set out in Part 5 of
this Schedule to determine the Buyer Account and the Seller
Account as at the Completion Date.
(c) Any difference between the Buyer Account and the Seller
Account at the Adjustment Date and at the Completion Date will
be paid to the Party entitled by the other Party within FIVE
(5) Business Days of determination of those Accounts.
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SCHEDULE FIVE
JOINT VENTURE CONTRACTS
Interim Joint Operating Agreement - Production Licence WA-13-L dated 30 May
1996 between the Company, Apache Oil Australia Pty Ltd, Santos (BOL) Pty Ltd
(formerly Parker & Parsley Australasia Limited) and Western Mining Corporation
Limited;
Harriet Joint Venture and East Spar Joint Venture Access Agreement (Varanus
Island) dated 12 December 1996 between Ampolex (Western Australia) Inc.,
Ampolex Varanus Pty Ltd, Apache Northwest Pty Ltd, Hardy Petroleum Limited,
Kufpec Australia Pty Ltd, Tap (Harriet) Pty Ltd, Novus UK (Harriet) Limited,
New World Oil & Developments Pty Ltd, the Company, Apache Oil Australia Pty
Ltd, Santos (BOL) Pty Ltd, WMC Resources Ltd and Apache Energy Limited;
Assignment, Farmin/Farmout, Assumption, novation and covenant documentation
registered as dealings against the Titles, or any predecessor title thereof,
and instruments of transfer of title registered against the Titles, or any
predecessor title thereof, in the Registers maintained under the Petroleum
Legislation.
SALES CONTRACTS
Grant of Full-Haul Capacity dated 16 August 1995 between the Company, Apache
Oil Australia Pty Ltd, Western Mining Corporation Limited, Parker & Parsley
Australasia Limited and Gas Corporation (trading as AlintaGas);
Interim Gas Agreement dated on or about 19 February 1996 between the Company,
Apache Oil Australia Pty Ltd, Western Mining Corporation Limited, Parker &
Parsley Australasia Limited, Ampolex (Western Australia), Inc., Ampolex Varanus
Pty Limited, Apache Northwest Pty Ltd, Hardy Petroleum Limited, Kufpec
Australia Pty Limited, Marubeni Oil Australia Pty Limited, Novus UK (Harriet)
Limited and New World Oil and Developments Pty Limited;
Gas Sale Agreement - Kwinana Nickel Refinery dated on or about 11 June 1996
among WMC Resources Ltd, the Company, Apache Oil Australia Pty Ltd (the
Contract was not executed by Santos (BOL) Pty Ltd);
Gas Sale Agreement - Goldfields Operations between WMC Resources Ltd, the
Company, Apache Oil Australia Pty Ltd and Santos (BOL) Pty Ltd;
Westlime Dongara Lime Project - Gas Supply Heads of Agreement dated 30 October
1996 between AGL Gas Trading Pty Limited, WMC Resources Ltd, the Company,
Apache Oil Australia Pty Ltd and Santos (BOL) Pty Ltd;
Gas Sale Agreement dated 29 August 1997 between Western Power and the Company,
Apache Oil Australia Pty Ltd and Santos (BOL) Pty Ltd;
Gas Sale Agreement dated 3 September 1997 between Western Power and Fletcher
Challenge Southwest Cogeneration Pty Ltd and the Company, Apache Oil Australia
Pty Ltd and Santos (BOL) Pty Ltd;
Condensate Sale Agreement dated 23 December 1996 between Glencore International
AG and the Company.
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SCHEDULE SIX
PROCEDURES FOR INDEPENDENT
ACCOUNTANT DETERMINATION
1. REFERRALS TO EXPERT
Wherever in this Agreement any matter is to be referred to the
Independent Accountant, then the terms of this Schedule shall apply.
2. APPOINTMENT
The procedure for appointing the Independent Accountant is as follows:
2.1 The disputing Party must give written notice including details of the
matter to be resolved by the Independent Accountant to the other
Party.
2.2 If the matter is not resolved within FOURTEEN (14) days from the date
of the notice, the Parties shall agree on a single accountant to
determine the dispute or, if no agreement is reached within FIVE (5)
Business Days, a chartered accountant nominated by the President of
the Institute of Chartered Accountants in Australia being a person who
is not a partner, consultant or employee of the Buyer's accountants or
the Seller's accountants and at which time is not or which firm for he
or she works is not retained by the Buyer, the Seller or any of their
Related Bodies Corporate in any capacity whatsoever.
2.3 DUTY OF DISCLOSURE
Any person appointed as the Independent Accountant shall fully
disclose any interest which may conflict with the appointment before
accepting such appointment and, with the agreement of both Parties,
shall be entitled to act as such expert, notwithstanding that he or
she has, or may have, some interest which conflicts with such
appointment.
2.4 POWERS AND DUTIES
An Independent Accountant shall, within TEN (10) days of his or her
acceptance of the appointment, fix a reasonable time and place for
receiving submissions or information from the Parties or any other
persons that he or she may think fit and may make further enquiries
and require such other evidence as he or she considers necessary and
shall determine the matter with all due diligence.
2.5 NOT ARBITRATOR
The Independent Accountant shall not be an arbitrator but shall give
his or her decision as an expert and the provisions of the Commercial
Arbitration Act 1985 shall not apply to the expert, the determination
or the determination procedure.
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2.6 DETERMINATION BINDING
The Independent Accountant's determination shall be final and binding
upon the Parties except for fraud, mistake or manifest error.
2.7 COSTS
Each Party shall bear the costs and expenses of any consultants,
witnesses and employees retained by it in connection with the matter,
but the costs and expenses of the Independent Accountant shall be
apportioned equally between the Parties.
2.8 REMOVAL OF INDEPENDENT ACCOUNTANT
If the Independent Accountant has not made a determination within
SIXTY (60) days of his appointment, either Party may, by notice,
terminate such appointment.
2.9 APPOINTMENT OF REPLACEMENT
In the event of such termination, a new Independent Accountant shall
be appointed within TEN (10) days and the matter determined in
accordance with this Schedule.
2.10 CONTINUED PERFORMANCE OF OBLIGATIONS
The referral of a matter to the Independent Accountant shall not
affect the obligations of the Parties to perform or pay any amount
otherwise due in accordance with the terms and conditions of the
Agreement.
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SCHEDULE SEVEN
SPECIAL PURPOSE FINANCIAL REPORT OF THE COMPANY
AS AT 30 JUNE 1997
[OMITTED]
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SCHEDULE EIGHT
WORKING CAPITAL STATEMENT
[OMITTED]
45.