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EXHIBIT 2.3
SHARE SALE AGREEMENT
AMPOLEX VARANUS 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 oil and gas 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;
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 Varanus Pty Limited (ACN 009 708 089);
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
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or occupy, option, restriction as to transfer, use or possession,
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;
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 North West Pty Ltd except in relation to Exploration
Licence WA-192-P in respect of which Tap (Harriet) Pty Ltd has been
appointed Operator;
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 (A.O.E.) Pty
Limited;
PARTY means the Seller or the Buyer according to the context and PARTIES
means both the Seller and the Buyer;
PETROLEUM has the meaning given in the Petroleum (Submerged Lands) Act
(WA) 1982;
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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;
PURCHASE PRICE means the cash consideration of SEVEN MILLION AND FIVE
THOUSAND THREE HUNDRED AND SEVENTY TWO DOLLARS AND SIXTY FOUR CENTS
($7,005,372.64) (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;
SHARES means the 7,102 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
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(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 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
(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
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(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
(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.
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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 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.
6.6 FURTHER ADJUSTMENT
If at any time during the period of THREE (3) years following the
Completion Date the:
(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
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(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 6.6(a)(i) and 6.6(b)(ii);
and
(d) the Seller shall account to the Buyer within THIRTY (30) days of
such adjustments in respect of paragraphs 6.6(a)(ii) and 6.6(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.
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
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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
(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;
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(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 any 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.
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.
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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 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;
(d) 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;
(e) 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;
(f) 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
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(g) 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, 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
(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 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
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Agreed Rate calculated daily and compounded monthly, the Adjustment
Amount; and
(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.
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.
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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.
(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,
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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 BUYER OBLIGATIONS
The Buyer will not:
(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.
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11.4 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.
11.5 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.
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
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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
(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:
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(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.
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 is the Purchase Price.
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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:
(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 RECLAMATION OBLIGATIONS
All costs, expenses, risks, liabilities and obligations respecting the
abandonment of any wells which are part of the Assets, closure,
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
19.
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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.
12.12 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 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
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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
Buyer elect 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.
24.
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(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 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.
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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
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.
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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.
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
Exploration Permit WA-192-P
Exploration Permit EP 307
Exploration Permit EP 358
Exploration Permit TP/8
Production Licence TL/1
Production Licence TL/5
Production Licence TL/6
Pipeline Licence PL/12
Pipeline Licence PL/17
Pipeline Licence TPL/1
Pipeline Licence TPL/2
Pipeline Licence TPL/5
Pipeline Licence TPL/8
2. INTERESTS
1% interest in the Assets.
3. SPECIFIED ENCUMBRANCES
1. Charge No. 277793 registered on 24/01/1990 given by the Company
pursuant to Section 16.3 of the Joint Operating Agreement for
Exploration and Appraisal of WA-192-P and EP 307 dated 5 August
1985;
2. Charge No. 277801 registered on 24/01/1990 given by the Company
pursuant to Section 16.3 of the Joint Operating Agreement for
Exploration and Appraisal of Production Licences dated 5 August
1985;
3. Charge No. 277813 registered on 24/01/1990 given by the Company
pursuant to Section 12.4 of an Approved Field Joint Operating
Agreement (WA-192-P Development and Production) dated 5 August
1985.
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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.
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;
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(d) the recipient of a statutory demand under sections 459A-461 of the
Corporations Law;
(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.
7. BUSINESS SINCE EFFECTIVE DATE
Since the Effective Date:
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(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 of incorporation.
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.
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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.
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.
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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 them 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, 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.
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(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;
(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 downsteam 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.
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(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-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 issues 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
Approved Field Joint Operating Agreement (WA-192-P Development and Production)
("Production JOA") dated 5 August 1985 between Bond Corporation Pty Ltd, Texas
Eastern Australia, Inc., Reading & Bates Australia Petroleum Co., Petro Energy
Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio
Broadcasters Limited and New World Oil & Developments Pty Ltd;
Joint Operating Agreement for Exploration and Appraisal of WA-192-P and EP307
("Permit Exploration JOA") dated 5 August 1985 between Bond Corporation Pty
Ltd, Texas Eastern Australia, Inc., Reading & Bates Australia Petroleum Co.,
Petro Energy Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan
Television & Radio Broadcasters Limited and New World Oil & Developments Pty
Ltd;
Joint Operating Agreement for Exploration and Appraisal of Production Licence
("Production Licence Exploration JOA") dated 5 August 1985 between Bond
Corporation Pty Ltd, Texas Eastern Australia, Inc., Reading & Bates Australia
Petroleum Co., Petro Energy Limited, Pontoon Oil & Minerals NL, Pelsart Oil NL,
Swan Television & Radio Broadcasters Limited and New World Oil & Developments
Pty Ltd;
Production - Exploration Co-Ordination Deed (WA-192-P and Production Licence)
dated 5 August 1985 between Bond Corporation Pty Ltd, Texas Eastern Australia,
Inc., Reading & Bates Australia Petroleum Co., Petro Energy Limited, Pontoon
Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio Broadcasters Limited
and New World Oil & Developments Pty Ltd;
Seller's Representative Agreement WA-192-P New Production Licence - Produced
Petroleum dated 5 August 1985 between Bond Corporation Pty Ltd, Texas Eastern
Australia, Inc., Reading & Bates Australia Petroleum Co., Petro Energy Limited,
Pontoon Oil & Minerals NL, Pelsart Oil NL, Swan Television & Radio Broadcasters
Limited and New World Oil & Developments Pty Ltd;
Deed of Cross Charge given by the Company (No. 277793) pursuant to Permit
Exploration JOA created 18 January 1990 and other charges given by New World
Oil & Developments Pty Ltd, Hardy Petroleum Limited, Marubeni Oil Australia Pty
Ltd, Novus (Harriet) Limited, Ampolex (Western Australia), Inc., Apache
Northwest Pty Ltd and Kufpec Australia Pty Ltd;
Deed of Cross Charge given by the Company (No. 277801) pursuant to Production
Licence Exploration JOA created 18 January 1990 and other charges given by New
World Oil & Developments Pty Ltd, Hardy Petroleum Limited, Marubeni Oil
Australia Pty Ltd, Novus (Harriet) Limited, Ampolex (Western Australia), Inc.,
Apache Northwest Pty Ltd and Kufpec Australia Pty Ltd;
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Deed of Cross Charge given by the Company (No. 277813) pursuant to Production
JOA created 18 January 1990 and other charges given by New World Oil &
Developments Pty Ltd, Hardy Petroleum Limited, Marubeni Oil Australia Pty Ltd,
Novus (Harriet) Limited, Ampolex (Western Australia), Inc., Apache Northwest
Pty Ltd and Kufpec Australia Pty Ltd;
Harriet Joint Venture and East Spar Joint Venture Access Agreement (Varanus
Island) dated 12 December 1996 between Ampolex (Western Australia) Inc., the
Company, 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, Ampolex (A.O.E.) Limited, Apache Oil Australia Pty Ltd,
Santos (BOL) Pty Ltd, WMC Resources Ltd and Apache Energy Limited;
Assignment, Farm-in/Farm-out, Assumption, novation and covenant documentation
registered as dealings against the Titles, or any predecessor title thereof in
the Registers maintained under the Petroleum Legislation.
SALES CONTRACTS
GAS
Heads of Agreement for the Purchase of Natural Gas from the Harriet Area dated
12 December 1990 between SECWA, Hadson Australia Development Pty Ltd, Hardy
Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil Australia Pty Ltd,
Petro Energy Limited, Ampolex (Western Australia), Inc., the Company, Swedish
Exploration Consortium AB and New World Oil & Developments Pty Ltd;
Heads of Agreement for Gas Supply and Purchase (Normandy Power) dated 24
October 1994 between Normandy Power Pty Ltd, Ampolex (Western Australia), Inc.,
the Company, Hadson Australia Development Pty Ltd, Hardy Petroleum Limited,
Kufpec Australia Pty Ltd, Marubeni Oil Australia Pty Ltd, Monument Oil
(Australia) Limited, New World Oil & Developments Pty Ltd and Petro Energy
Limited;
Gas Supply and Purchase Agreement dated 21 July 1995 between Apache Northwest
Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil
Australia Pty Ltd, Monument Oil (Australia) Limited, New World Oil &
Developments Pty Ltd, Ampolex (Western Australia), Inc., the Company, Doral
Resources NL, Pan Pacific Petroleum NL, Haoma Petroleum Pty Ltd, Strata
Petroleum Pty Ltd, Carnarvon Oil & Gas NL and Roy Antony Radford;
Deed of Assumption - Apache Gas Sale Agreement dated 19 December 1995 between
Doral Resources NL, Haoma Petroleum Pty Ltd, Strata Petroleum Pty Ltd, Sagasco
South East Inc., Boral Energy Petroleum Limited, Boral Energy Amadeus NL, Pan
Pacific Petroleum NL, Carnarvon Oil & Gas NL, Roy Antony Radford, Apache
Northwest Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni
Oil Australia Pty Ltd, Monument Oil (Australia) Limited, New World Oil &
Developments Pty Ltd, Ampolex (Western Australia), Inc. and the Company;
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Interim Gas Agreement dated on or about 19 February 1996 between Ampolex
(Western Australia), Inc., the Company, Apache North West Pty Ltd, Hardy
Petroleum Limited, Kufpec Australia Pty Limited, Marubeni Oil Australia Pty
Limited, Novus UK (Harriet) Limited, New World Oil & Developments Pty Limited,
Ampolex (A.O.E.) Limited, Apache Oil Australia Pty Limited, Parker & Parsley
Australasia Limited and Western Mining Corporation Limited;
Gas Supply and Purchase Agreement (Alcoa) dated 5 June 1996 between Alcoa of
Australia Limited, Ampolex (Western Australia), Inc., the Company, Apache North
West Pty Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, Marubeni Oil
Australia Pty Ltd, New World Oil & Developments Pty Ltd and Novus UK (Harriet)
Limited;
Wiluna Gas Sales Agreement dated 8 April 1997 between Apache Northwest Pty Ltd,
Hardy Petroleum Limited, Kufpec Australia Pty Ltd, TAP (Harriet) Pty Ltd, Novus
UK (Harriet) Limited, New World Oil & Developments Pty Limited, Ampolex
(Western Australia), Inc., the Company and Wiluna Gold Pty Limited;
Gas Sale Agreement (Boral) dated 17 June 1997 between Boral Gas (WA) Pty
Limited, Ampolex (Western Australia), Inc., the Company, Apache Northwest Pty
Ltd, Hardy Petroleum Limited, Kufpec Australia Pty Ltd, TAP (Harriet) Pty Ltd,
Novus UK (Harriet) Limited and New World Oil & Developments Pty Ltd.
CRUDE
Harriet Oilfield Royalty Agreement dated 20 September 1989 between Jeffrey Carr
(Minister for Administration of PSLA (W.A.)), Bond Corporation Pty Ltd, Hadson
Australia Development Pty Ltd, Varanus Pty Ltd, TEA Australia Inc., Petro
Energy Limited and New World Oil & Developments Pty Ltd;
Terms and Conditions of Sale of Varanus Crude dated 18 December 1996 between
Ampolex Varanus Pty Limited and Glencore International AG.
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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]
46.