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Exhibit 10.1
THIS DEED is made the 8th day of November one thousand nine hundred and ninety
six BETWEEN EIGHTZIGBARB PTY LIMITED ACN 075 261 497 a duly incorporated company
having its registered office at C/- 39 Queen Street, Auburn in the State of New
South Wales 2144, Y.F.B. INVESTMENTS PTY LIMITED ACN 075 261 488 a duly
incorporated company and having its registered office at C/- 39 Queen Street,
Auburn, 2144 in the said State and IRENE INVESTMENTS PTY LIMITED ACN 075 261 479
a duly incorporated company having its registered office at C/- 39 Queen Street,
Auburn, 2144 in the said State (called "Vendors") of the first part
AND
PETER JOHN BAIRD of 133 Australia Avenue, Umina, 2257, in the said State, MARK
DAVID ELLIOTT of 65 Taylor Street, Woy Woy, 2256, in the said State, JOHN ROBERT
CLACK of 161 Australia Avenue, Umina, 2257 in the said State, STEPHEN JAMES PAGE
of 28 Dumfries Court, Eaglemount Heights, Mackay, 4740, in the State of
Queensland and PATMORE ENTERPRISE PTY LIMITED ACN 075 261 470 a duly
incorporated company having its registered office at C/- 39 Queen Street, Auburn
in the State of New South Wales (called "Guarantors") of the second part
AND
CONTINENTAL CONVEYOR & EQUIPMENT PTY LIMITED ACN 059 870 058 a duly incorporated
company having its registered office at 145 Bridge Street, Muswellbrook in the
said State (called "Purchaser") of the third part
RECITALS
A. BCE Holdings Pty Limited ACN 003 525 988 (called "the Company") is
registered under the Corporations Law and is the holding company whose
subsidiaries carry on the business of the manufacture of conveyors, conveyor
componentry and associated equipment in New South Wales, Victoria and Queensland
and their distribution and installation in Australia and elsewhere.
B. The Company is the registered legal and beneficial owner of the shares
hereunder specified in the companies set out below:-
(a) Australian Conveyor Engineering Pty Limited ("ACE") ACN 003 725 915
22,500 ordinary shares of $1.00 each being the whole of the issued
shareholding in Australian Conveyor Engineering Pty Limited;
(b) Ace Conveyor Services Pty. Limited ("ACS") ACN 056 396 760 3 ordinary
fully paid $1 shares (out of a total of four issued fully paid
ordinary shares)
(c) Ace Conveyor Components Pty Limited ("ACC") (formerly Prince Conveyor
Components Pty Limited) ACN 005 458 373 1,500,000 ordinary 50(cent)
shares comprising the whole of the issued shares in Ace Conveyor
Components Pty Limited;
(d) A. Crane Pty Limited
ACN 003 280 475
300 ordinary $1.00 shares which shareholding comprises the whole of
the issued capital of A. Crane Pty Limited.
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(e) Ringway Pty Limited
ACN 003 581 897
1 A class share, 1 B class share and 3,000 ordinary $1.00 shares
out of a total of the following issued shares: 1a class share, 1b
class share 5,000 ordinary shares;
C. The Company has entered into an agreement for the purchase from Patmore
Enterprise Pty Limited ("Patmore") by it of one fully paid ordinary share in ACS
being the only issued share in the capital of ACS not already owned by the
Company.
D. The Vendors are the registered legal and beneficial owners of all the
issued shares in the Company.
E. It is the parties' intention that by the sale and purchase of the shares
referred to in Recital D, the Purchaser will have the right to control not only
the business and undertaking of the Company and the subsidiaries but also the
shares held by the Company in and the right to control the businesses and
undertakings of the companies referred to in B. above.
F. On this basis the Purchaser has agreed to purchase the Vendors' shares in
the Company on the terms contained in this Agreement.
G. On 28 June 1996:-
(a) ACE paid amounts totalling $345,000; and
(b) ACS paid amounts totalling $460,000.
by way of superannuation contributions to the superannuation funds
established for the benefit of Peter John Baird, Mark David Elliott, John Robert
Clack and Stephen James Page.
H. The following dividends have been declared or declared and paid from the
Company and/or ACS prior to the date of this Agreement in respect of retained
profits earned by the Company and ACS since commencement of operations of the
Company up to and including 30th September 1996:
The Company: -
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(a) $226.74 per share declared prior to and paid, or credited
to the loan accounts as set out in Table 23 of Schedule 5 on
31 May 1996 (3,000 shares = $680,220);
(b) $635.28 per share declared on 9th October 1996 and credited
to loan accounts as set out in Table 23 of Schedule 5 on
10th October 1996 (3,000 shares = $1,905,849).
ACS:-
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(a) $16,741 per share declared prior to and paid, or credited to
loan accounts as set out in Table 23 of Schedule 5 on 31 May 1996 (4 shares =
$66,964);
(b) $461,742 per share declared on 9th October 1996 and credited
to loan accounts as set out in Table 23 of Schedule 5 on 10th October 1996 (four
shares = $1,846,968);
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I. The Purchaser acknowledges the payments of superannuation contributions by
ACE and ACS and the payment of the dividends by the Company and ACS as set out
in Recitals G. and H. have been effected.
J. The Guarantors have agreed to guarantee the Vendors' obligations under this
Agreement.
K. The Guarantors have at the request of the Vendors agreed to enter into this
Agreement for the purposes of acting as surety and providing A guarantee to the
Purchaser for the performance by the Vendors jointly and severally of the
provisions of this Agreement in accordance with the agreement referred to in
Recital J.
OPERATIVE PART
Interpretation provisions
1. In this Agreement unless the context otherwise requires:-
(a) "this Agreement" means this deed for the sale of shares and includes
the schedules and annexures to the schedules to this deed;
(b) "assets" means all the assets and undertaking of each of the Company
and its subsidiaries whether of real, personal or intellectual
property and includes the assets specified in Schedule 5;
(c) "bank" means a bank as defined in the Banking Act 1959, (Cth);
(d) "business" means the business or businesses of the Company and its
subsidiaries; all trading operations of the Company and its
subsidiaries; all assets used by the Company and its subsidiaries in
each such business and all liabilities of the Company and its
subsidiaries;
(e) "business day" means any day which is not Saturday, Sunday or a public
holiday;
(f) "Company" means BCE Holdings Pty Limited ACN 003 525 988.
(g) "contractual arrangement" shall include letters of intent on which
reliance is placed, purchase orders, and outstanding tenders.
(h) the reference to "Dollars" is to Australian currency;
(i) "due diligence bundle" means the bundle of documents or copies of
documents identified by being initialled by the Vendors, the Purchaser
and the Guarantors as containing information concerning the Company
and its subsidiaries and the business as at the date here-of.
(j) "financial records" means all financial information of the relevant
company including statutory accounts.
(k) "interest rate" means the rate of interest as defined by the term
"interest rate" in the Loan Agreement set out in Schedule 7(a) hereto.
(l) "last accounts" means the audited consolidated financial statements of
the Company and its subsidiaries as at 30 June 1996;
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(m) "material adverse change" means a change affecting the Company and its
subsidiaries taken as a whole which change singularly or together with
other changes (both favourable and adverse) is materially adverse to
the net assets, operating income, financial conditions or the
operations of the Company and its subsidiaries measured as of or from
30 June 1996.
(n) "outstanding purchase monies" means the amount determined by deduction
from the share price specified in clause 8.1 of the amount of the loan
referred to in clause 9.1;
(o) "Purchaser" includes the Purchaser its successors and assigns, subject
to clause 2.4 hereof ;
(p) "share price" means the monies specified in clause 8.1;
(q) "subsidiaries" means each of the companies in which BCE Holdings Pty
Limited at the date of this agreement owns a majority of the
shareholding, whether such company shall be wholly or partly owned by
BCE Holdings Pty Limited and shall include the following companies:-
(i) Australian Conveyor Engineering Pty Limited ACN 003 725 915
(ii) Ace Conveyor Services Pty. Limited
ACN 056 396 760
(iii) Ace Conveyor Components Pty Limited
ACN 005 458 373
(iv) A.Crane Pty Limited ACN 003 280 475
(v) Ringway Pty Limited
ACN 003 581 897
(r) "taxation liabilities" includes any liability of the Company and
its subsidiaries for all taxes, duties or levies made by the Crown in the right
of the Commonwealth of Australia or of any State or Territory or of any of their
respective instrumentalities, including but not limited to income tax, fringe
benefits tax, franking account deficit tax, sales tax, customs duty, stamp duty,
and all costs, charges, interest, fines, penalties and expenses which are
included in, or are incidental to or relate to, the taxation liability of the
Company or any of its subsidiaries.
(s) "Vendors" includes the Vendors jointly and severally and their
respective successors and assigns;
(t) words expressed in the singular include the plural and vice
versa;
(u) words expressed in one gender include the other genders, as is
appropriate in the context;
(v) the reference to "person" includes a corporation.
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General contractual provisions
Governing law
2.1 This Agreement is governed by and construed in accordance with the law of
the State of New South Wales and the parties agree to submit to the
non-exclusive jurisdiction of the Courts of New South Wales and the Federal
Court of Australia in its New South Wales venue and any other Courts which may
hear appeals therefrom.
Severance
2.2 If any provision contained in this Agreement is or becomes legally
ineffective, under the general law or by force of legislation, the ineffective
provision shall be severed from this Agreement which otherwise continues to be
valid and operative.
Joint and several liability
2.3 Each and every Vendor and Guarantor assumes the liability to comply with his
or its obligations under this Agreement jointly with each other Vendor or
Guarantor (as the case may be), and in addition each of them assumes the
liability to comply with those obligations severally.
Benefit of Agreement non assignable
2.4 The Vendors or the Purchaser may not assign the benefit of the rights under
this Agreement without the written consent of all other parties.
Compliance with notices on Business day
2.5 If under the provisions of this Agreement or under any notice or demand
anything is required to be done on a day which is not a Business day, the day or
the last day for compliance is deemed to be the immediately following Business
day.
SHARE ALLOTMENT
3.1 On the execution of this Agreement the Vendors will cause the Company to
enter into a share allotment agreement with the Purchaser in accordance with the
form of Agreement for Allotment of Shares set out in Schedule 6 hereto.
3.2 The Vendors will cause the Company to be ready, willing and able to effect
completion of the Agreement for Allotment of Shares referred to in clause 3.1 on
the day fixed for completion of this Agreement.
3.3 It is an essential term of this Agreement that the Vendors will cause the
issue of shares contemplated by the Agreement for Allotment of Shares referred
to in clause 3.1 to be completed on or before completion of this agreement.
3.4 Completion of this Agreement shall not be effected unless at the same time
or prior to completion of this Agreement the Agreement for Allotment of Shares
referred to in clause 3.1 shall have been completed and the shares which are to
be the subject of that allotment shall have been issued by the Company and
vested in the Purchaser.
3.5 The Vendors and the Guarantors jointly and severally hereby release and
forever discharge the Purchaser and the Company and any of its subsidiaries and
the directors of those
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companies from all actions proceedings claims and demands which they or their
executors administrators or successors or any one or more of them now have or
might but for the provisions of this clause have had against the Purchaser or
the Company or any of its subsidiaries or the directors of those companies in
respect of any obligation or claim or taxation liability relating to the
dividends referred to in Recital H or arising from the declaration or payment of
those dividends provided that where the Company and/or its subsidiaries is able
as a matter of law to cooperate in relation to the dividends referred to in
Recital H or the declaration or payment of those dividends then the Purchaser
shall, at the Vendors and Guarantors expense, co-operate with the Vendor with a
view to rectifying or remedying such matter, provided further that such
cooperation will not materially disadvantage the Company and any of its
subsidiaries. The Vendors and Guarantors jointly and severally shall indemnify
and hold the Company and its subsidiaries harmless against any loss or damage
suffered by the Company and any of its subsidiaries as a result of such
cooperation. This clause shall not merge on completion of this Agreement.
AUTHORISATION BY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
4.1 It is a precondition of this Agreement that the Purchaser obtain from the
Australian Competition and Consumer Commission an authorisation under Section
88(9) of the Trade Practices Act 1974 for the Purchaser to acquire the shares in
the capital of the Company.
4.2 The Purchaser shall apply for the authorisation within seven (7) days after
the date of this Agreement, shall furnish to the Australian Competition and
Consumer Commission the documents, information and particulars required by the
Commission which the Purchaser is reasonably able to furnish, and shall act
reasonably, honestly, promptly and sufficiently in pursuing the application to
the Commission.
4.3 The Vendors shall make available to the Purchaser on reasonable demand all
such documents information and particulars as may be required by the Commission
of the Purchaser in relation to the Company and its subsidiaries.
4.4 If the authorisation is not granted by the Australian Competition and
Consumer Commission within 30 days from the date of this Agreement, or is
granted on conditions which the Purchaser, acting reasonably and honestly,
considers to be adverse and unacceptable, the Purchaser may rescind this
Agreement by notice in writing to the Vendors.
FURTHER PRE-CONDITIONS
5.1 It is a pre-condition of this Agreement that each of the following
circumstances or events occur prior to completion and the completion of this
Agreement is subject to that occurrence:-
5.1.1 the provision of duly executed agreements as required by clauses 3.1,
9.1, 15.1, 16.2, 21.9 and 32 of this Agreement;
5.1.2 that there has been no material adverse change in circumstances of
the Company and its subsidiaries;
5.1.3 that no breach of an essential term of this Agreement has occurred
which has not been waived in writing;
5.1.4 that the requirements of section 205(10) of the Corporations Law have
been satisfied as regards the loan agreements referred to in clause 9 hereof and
specified in Schedule 7
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hereto and in this regard the Vendors agree to undertake the carriage of
compliance with the requirements of that section;
5.1.5 DELETED
5.1.6 that the transfer document in respect of the acquisition by the
Company of 1 fully paid issued ordinary share in the capital of ACS as referred
to in Recital C, has been:-
5.1.6.1 duly executed by Patmore Enterprise Pty Limited and the Company
as the parties to such transfer;
5.1.6.2 stamped by the Office of State Revenue with ad valorem stamp
duty;
5.1.6.3 approved by a meeting of the Directors of ACS to the intent
that the transferee named in such document of transfer is a person or company
approved by the Directors of ACS for the purposes of membership of ACS; and
5.2 If any of the above pre-conditions shall not pertain within any period
specified or before completion either party may rescind this Agreement.
PROVISION OF FUNDS
6. Deleted
DUE DILIGENCE
7.1 The parties acknowledge that in accordance with agreement between the
parties the Purchaser has conducted and is at the date of this Deed conducting
searches and enquiries in relation to the assets, operations and undertaking of
the Company and its subsidiaries and the business in accordance with the
procedures generally described as due diligence.
7.2 The Purchaser shall use its best endeavours to bring such enquiries to
completion at the earliest possible time and shall notify the Vendors in writing
at the time when the Purchaser regards the making of such enquiries to have been
completed and the results thereof to have been obtained. The time of such
notification shall in this Agreement be referred to "completion of due
diligence".
7.3 The Purchaser shall notify the Vendors of any matter which may come to its
attention up to completion and which may cause the Purchaser to form the opinion
referred to in clause 7.4. Such notification shall be made within seven (7)
business days after date of the Purchaser becoming aware of any such matter,
7.4 If at any time prior to the completion of this agreement the Purchaser shall
have received information or advice or other results of due diligence which the
Purchaser reasonably and honestly considers to be materially adverse and
unacceptable, or is not reasonably satisfied with the level of disclosure by the
Company for the purposes of financial, legal and operations due diligence
investigations the Purchaser may rescind this Agreement by notice in writing to
the Vendors.
AGREEMENT TO SELL
8. Subject to the fulfilment of the conditions contained in clauses 3, 4, 5 and
7 of this Agreement:-
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PRICE
8.1 The Vendors agree to sell and the Purchaser agrees to purchase the 3,000
ordinary shares held by the Vendors in the Company for the price of $4,435.64
per share for the total purchase price of $13,306,920, adjusted pursuant to
clause 10.
Manner of payment
8.2 The share price shall be paid as is specified in clause 9.
8.3 Subject to the fulfilment of all conditions precedent, completion of this
Agreement shall be effected in accordance with the provisions of clauses 10 and
21 hereof.
PAYMENT OF PURCHASE PRICE
9. The share price and all other amounts payable by the Purchaser at the time of
completion shall be paid:-
9.1 As to the sum of $5,400,000 being part of the share price, in accordance
with loan agreements into which the parties hereby agree that the Purchaser (as
Borrower) will enter with each of the Vendors (as Lender) severally on
completion ON the terms and conditions of the Loan Agreement set out in Schedule
7(a) to this Agreement.
9.2 Deleted
9.3 The Purchaser shall on completion pay interest on the amount of fourteen
million seven hundred and forty nine thousand, nine hundred and eighty seven
dollars $14,749,987 (being the sum of the share price and the amount to be paid
by the Company for the purchase of one share in ACS) from Patmore referred to in
Recital C hereof, at the interest rate provided in the Loan Agreement in
Schedule 7(b) from the date of this Agreement until the actual date of
completion PROVIDED THAT the liability to pay such interest shall not apply in
respect of any period prior to completion in which progress of this Agreement to
completion shall be delayed through any cause which shall be the sole
responsibility or fault of the Vendors; such period shall be inclusive of their
commencement and end dates.
9.4 As to the balance of the share price, on completion of the sale, by bank
cheque, to the Vendors' solicitor, or as the Vendors' solicitor or the Vendors
direct in writing.
9.5 The amounts to be provided for in respect of the Loan Agreements
referred to in clauses 9.1 and 21.9 shall be as follows:-
EIGHTZIGBARB PTY LIMITED ACN 075 261 497: $1,800,000
Y.F.B. INVESTMENTS PTY LIMITED ACN 075 261 488: $1,800,000
IRENE INVESTMENTS PTY LIMITED ACN 075 261 479: $1,800,000
PATMORE ENTERPRISE PTY LIMITED ACN 075 261 470: $600,000
9.6 It is a precondition of this Agreement that the Purchaser shall provide
to the Vendor, at least five (5) business days prior to completion:
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9.6.1 details of the entity which shall provide the Deed of
Guarantee and Indemnity referred to in Clause 6.4 of the Loan Agreements
set out in Schedules 7(a) and 7(b) to this Agreement ("the Guarantee");
9.6.2 a letter from an independent lawyer in Alabama, USA
("letter of comfort") to the effect set out in Annexure "A" to this
Agreement and that the Guarantee is enforceable against the Guarantor; and
9.6.3 a copy of the most recent annual financial accounts for the
Guarantor demonstrating sufficient substance to reasonably give comfort to
the Vendors as to the security for the Guarantee.
ADJUSTMENTS ON COMPLETION
10.1 The share price shall be adjusted on completion:-
10.1.1 Subject to Clauses 24.2 and 24.3, in respect of any amount calculated
by the Purchaser's accountants and verified by the Vendors' accountants as being
a fair and reasonable allowance for breach occurring before completion of any
warranty contained in this Agreement and not elsewhere adjusted pursuant to this
agreement.
10.1.2 In respect of any amount calculated by the Purchaser's accountants
and verified by the Vendors' accountants as being a fair and reasonable
allowance (in accordance with clauses 17.2, 17.3 and 17.4) for destruction or
damage to the business premises, plant or machinery owned by the Company and its
subsidiaries and after taking into account any realisable insurance and not
elsewhere adjusted pursuant to this Agreement.
10.1.3 In respect of any amount calculated by the Purchaser's accountants
and verified by the Vendors' accountants as being a fair and reasonable
allowance for any expenditures effected or liabilities incurred by the Company
and its subsidiaries after the date of the last accounts other than in the
normal course of their trading and operations or other than as referred to in
the provisions of this Agreement in the period between the date of the last
accounts and completion of this Agreement and not elsewhere adjusted pursuant to
this Agreement.
10.1.4 Subject to Clauses 24.2 and 24.3, in respect of costs and expenses
incurred or likely reasonably to be incurred by the Company and any of its
subsidiaries in carrying out changes and rectifications to freehold and
leasehold property and business interests of the Company or a subsidiary
relating to the following matters already notified to the Vendors by the
Purchaser as a result of due diligence:-
10.1.4.1 transfer of title to part of lot 234 Somersby Falls Rd
Somersby from A. Crane Pty Ltd to ACE;
10.1.4.2 satisfaction of the requirements of Gosford City Council in
relation to encroachment (approx. 5 metres) by improvements on the Somersby
property on to Somersby Falls Road;
10.1.4.3 transfer of title to property at lot 10 Michelmore Street,
Mackay to corporate lessor of that property, and establishment and registration
of lease from that lessor in accordance with details in Table 13 of Schedule 5
in favour of ACS;
10.1.4.4 approval by Workcover Authority of N.S.W. of factory building
leased by Ringway Pty Ltd at 347 Keira Street, Wollongong.
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10.2 10.2.1 The parties acknowledge that the price of the shares as specified in
clause 8 has been agreed upon as a result of the Purchaser's consideration of
the last accounts.
10.2.2 Notwithstanding the provisions of clause 10.2.1 the price of
the shares, as specified in clause 8, shall be adjusted by increasing or
decreasing that purchase price, in equal proportions in respect of each of the
Vendors, in accordance with the adjustments referred to in subclause 10.1.
10.2.3 Any adjustments occurring in pursuance of clause 10.1 shall, after
taking into account the threshold referred to in clauses 13.12.2 and 24.2 of
this Agreement, be deemed to be an adjustment to the share price.
Warranty concerning correctness of financial statements.
10.3 The Vendors and the Guarantors agree to warrant on completion that the last
accounts are accurate, complete and not misleading and are correctly compiled on
the basis of information furnished by the Company its subsidiaries and the
Vendors and the Guarantors which is accurate, complete and not misleading and
the provisions of clause 13 apply to this warranty.
10.4 The warranty contained in clause 10.3 shall extend to the matters referred
to in clause 13.2.4.2.
EXCLUSION OF PRE-CONTRACTUAL AND OTHER REPRESENTATIONS
Entire agreement
11.1 This Agreement constitutes the entire agreement between the Vendors and the
Purchaser relating to the acquisition of the shares in the Company.
Earlier agreements supplanted
11.2 This Agreement supplants and supersedes any previous written or oral
negotiations or preliminary agreements between the parties or between any two of
the parties, which to the extent that they may have had any legal effect the
parties now agree that they have ceased to be legally effective from the date
when the parties entered into this Agreement.
No collateral agreements
11.3 The parties have not entered into and are not bound by any collateral or
other agreement apart from this Agreement and the Schedules.
Warranties imposed in agreement or by statute binding
11.4 The parties are not bound by any warranty, representation, collateral
agreement, or implied term, under the general law or imposed by legislation
unless:
11.4.1 such warranty, representation, agreement or term is contained in the
express terms of this Agreement including the Schedules to this Agreement and in
the matters referred to in the provisions of clause 12 of this Agreement; or
11.4.2 it is an implied term or warranty imposed by statute which is
mandatory and cannot be excluded by the parties' agreement.
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Matters relied on by Purchaser
12. The parties acknowledge that the Purchaser, when entering into this
Agreement, has relied on the following matters relating to inducements or
representations made by or on behalf of the Vendors:-
12.1.1 all information relating to the Company and its subsidiaries and the
business as contained in or disclosed by the due diligence bundle.
12.1.2 the warranties and representations expressly contained in this
Agreement and its Schedules;
12.1.3 without limiting the application of the warranties and
representations referred to in clause 12.1.2, specifically the following
representations of the Vendors and the Company:-
12.1.3.1 as contained in the last accounts;
12.1.3.2 that the Company or its subsidiaries holds licence agreements
or authorisations or is undertaking pending negotiations to act in
representative capacities as manufacturing selling and distribution agents for
the following companies holding world wide patents in respect of conveyor
technology and manufacturing such agreements, authorisations or pending
negotiations relating to the countries or territories set out at the end of each
matter as follows:-
(a) Bridgestone Pipe Conveyor (Japan) (but only as to
arrangements for supply of conveyor hardware for pipe conveyors to Barclay
Mowlem) - in Australia;
(b) in relation to the supply and installation of Bridgestone
Pipe Conveyor - in New Zealand;
(c) in relation to the supply, distribution, servicing and
installation of Dodge CST and associated products - in Australia; and
(d) Lewin Horizontal Conveyor - in Australia
12.1.4 The accuracy of the financial records in respect of the period
ending 30 June 1996 of the Company and its subsidiaries being the records which
were produced for inspection by or on behalf of the Purchaser or in respect of
which copies were furnished to the Purchaser.
12.1.5 The Articles of Association of the Company do not restrict the
transfer of its shares such as to prevent the transfer of the shares under this
Agreement to the Purchaser.
12.1.6 The shares referred to in clause 8.1 are the only shares on
issue in the Company at the date of this Agreement and will, subject to the
shares to be allotted pursuant to the Agreement for Allotment of Shares,
Schedule 6 hereto, be the only shares on issue in the Company at the date of
completion of this Agreement.
12.1.7 The understanding that, in respect of the dividends referred to
in Recital H, nothing has, prior to completion of this agreement, been done or
left undone which may give rise to a claim for damage or losses by a shareholder
of the Company or any subsidiary, and the Vendors and the Guarantors hereby
waive to the full extent of the same and agree not to make all or any such
claims or causes of action arising at the suit of one or more of them against
the
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Company and/or one or more of its subsidiaries and this clause may be pleaded in
bar by the Company or any of its subsidiaries in respect of any such action
commenced contrary to the provisions of this clause.
12.1.8 The parties agree that:
12.1.8.1 the due diligence bundle shall be intitialled by the
Vendors and the Purchaser on or before the date hereof.
12.1.8.2 the due diligence bundle shall be held in trust on
behalf of the Vendors and the Purchasers by an independent third party agreed
upon by parties, as and from the date hereof.
12.1.8.3 the Vendors on the one hand and the Purchaser on the other
hand shall each nominate, from time to time, a signatory whom together shall be
joint signatories for the purpose of obtaining access to the due diligence
bundle.
12.2 The parties acknowledge that for the purposes of this Agreement in the
Purchaser's assessment of the financial affairs of the Company and its
subsidiaries:
12.2.1 The Purchaser is relying upon the last accounts;
12.2.2 The Vendor is not guaranteeing or warranting any budgets,
forecasts, projections or estimates for sales, profits or otherwise relating to
the Company and its subsidiaries and the business; and
12.2.3 The warranties contained in clause 13.1 hereof do not apply to
such budgets, forecasts, projections or estimates for sales, profits or
otherwise relating to the Company and its subsidiaries and the business.
VENDORS' WARRANTIES
13. The contractual warranties
13.1 13.1.1 The Vendors warrant that the information concerning the Company, its
subsidiaries and the business as at the date hereof disclosed in the due
diligence bundle is true and accurate.
13.1.2 The Vendors and the Guarantors jointly and severally
make each of the warranties contained in schedule 1 as at the date of this
Agreement and up to and including the date of completion of this Agreement.
13.1.3 or The Purchaser acknowledges that it has satisfied
itself with respect to all information contained in the due diligence bundle so
that no claim for breach of warranty can be made against the Vendors or the
Guarantors in respect of any information contained in the due diligence bundle,
except for the matters detailed below, which are outstanding and may or may not
give rise to a claim against the Vendors Guarantors:
13.1.3.1 The matters referred to in clause 10.1.4 hereof;
13.1.3.2 There is an amount of $61,000 owed to ACE in respect
of the Kenmare Contract at South Blackwater . This is a result of double
counting by the client in respect of an offset which it made against the amount
it owed ACE, for accommodation which the client provided to ACE employees
working on the Kenmare Contract. When it has been
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verified that the client double counted in making an offset against the amounts
it owed to ACE the client will pay the outstanding amount of $61,000 to ACE.
13.1.3.3 ACE entered into a contract with Walker Engineering at Prospect
Reservoir under which ACE supplied a conveyor system to Walker Engineering.
Walker Engineering has been and is continuing to feed the conveyor system with
material which exceeds the specifications of the conveyor system. This oversized
material is causing damage to the conveyor system, which ACE is repairing at
Walker Engineering's cost. A dispute regarding payment under this contract by
Walker Engineering may arise in the future.
13.1.3.4 Shaft Machining Lathe being Lealde TCN-12-2C CNC Two Spindle/Two
Turret Lathe complete with Bar Feeder, Shaft Unloader and Finished Shaft Storage
Ramp. In addition to the application of the warranties to the Lathe the parties
have agreed as follows:
13.1.3.4.1 ACC has acquired the lathe described above from a Spanish supplier
("the Lathe"). The Lathe is presently partially operating. It is agreed that the
Vendors will undertake the carriage of ensuring that the Lathe operates as
specified in clause 13.1.3.4.2 and in so doing will consult with the Purchaser
on the steps to be taken so as to ensure its operation as set out in this
clause.
13.1.3.4.2 The operation of the Lathe will be brought by the Vendors to
standards in accordance with the specifications and the performance standards
set out in the following documents which are included in the due diligence
bundle and which are deemed to be incorporated in this clause:
(a) undated letter from ACE to Lealde S Coop Ltda (5 pages);
(b) letter dated 24 June 1994 from Lealde S Coop Ltda to ACE (2
pages);
(c) Official Order Number 12576 from Prince Conveyor Components
Pty Limited (now ACC) dated 29 June 1996.
(d) facsimile cover sheet from Prince Conveyor Components Pty
Limited (now ACC) to Cibrian dated 28 June 1996.
13.1.3.4.3 The costs of getting the Lathe to full operating order as above
shall be borne by the Company and applied firstly as a debit against the
threshold referred in clause 24.2 hereof and thereafter the excess of costs (if
any) shall be reimbursed by the Vendors to the company or its relevant
subsidiary within 30 days of completion of getting the Lathe to full operating
order provided that in the event the Vendors are successful in achieving a
contribution in respect of the cost of getting the Lathe to full operating order
from the supplier then the value of same shall be supplied in the first instance
against any liability of the Vendors and secondly as a credit towards any above
debiting of the threshold referred to in clause 24.2 hereof.
13.1.3.4.4 The Purchaser agrees that it shall not be entitled to bring any
claim against the Vendors and/or Guarantors for any loss or damages of whatever
nature or description suffered or to be suffered by it or the Company howsoever
arising with respect to the Lathe save as allowed for in clauses 13.1.3.4.1 and
13.1.3.4.2.
13.1.3.5 The dividends referred to in Recital H hereof were properly
declared and paid in accordance with the Corporations Law and the Income Tax
Assessment Act.
13.1.3.6 matters relating to or connected with potential taxation
liabilities referred to in the due diligence bundle.
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13.1.3.7 The Vendors warrant that the ACE idler designs are ACE's own
proprietory designs.
13.1.3.8 The Roundo plate rolls at Somersby are operating satisfactorily.
13.1.4 The Purchaser shall after execution of this Agreement verify that
certain factual matters set out below advised to it by the Vendor are correct.
If these matters are not correct in any material way then that subject matter
shall be included in the list set out in clause 13.1.3 above:
13.1.4.1 The dispute between Transfield and ACC in respect of
the dimensioning of a component for the Mae Moh mine in Thailand was resolved in
or about 1994.
13.1.4.2 ACS credited Dartbrook in the amounts of $85,000 and
$32,000. Accordingly, both amounts are no longer outstanding debts owed by
Dartbrook to ACS.
13.1.4.3 Howrie Herringon & Forsyth made a settlement with ACE
in July 1996 in respect of a debt owed to ACE by Howrie Herringon & Forsyth for
an amount of $72,210. Howrie Herringon & Forsyth have paid ACE the amount of
$60,000 and ACE has credited Howrie Herringon Forsyth the balance of the debt in
the $12,210. Accordingly, this amount of $72,210 is no longer a debt owed by
Howrie Herringon & Forsyth to ACE .
13.1.4.4 ACS has prepaid rent in respect of a lease at Lot 10
Michelmore Street, Mackay between PACE Engineering Pty Limited as lessor, and
ACS as Lessee in the amount of $99,100 for the period commencing from 1 July
1996.
13.1.5 The Purchaser shall verify whether or not the matters referred to in
clause 13.1.4 above are correct or not by notice in writing to the Vendors at
least five (5) business days prior to completion, failing which no claim can be
made against the Vendors or the Guarantors in respect of such matters. The
Vendors shall cooperate and assist the Purchaser in verifying whether or not the
matters referred to in clause 13.1.4 above are correct.
13.1.6 If the company or its subsidiaries suffers any loss or damage as a
result of any matter which forms part of the list in clause 13.1.3 above then
the threshold referred to in clause 13.12.2 and in clause 24.2 of this Agreement
shall be taken into account in the calculation of such loss or damage.
Interpretation of contractual warranties
13.2 13.2.1 Each warranty contained in this Agreement is a separate warranty and
its scope and meaning is not limited or governed by the existence and scope of
any other warranty.
13.2.2 When a warranty is expressed in absolute terms, it covers the
particular topic or matter, including anything known to the Vendors, Directors
or to the employees.
13.2.3 When a warranty is made only on the basis of the Vendors' knowledge
of the Company or a subsidiary of the Company, the warranty:
13.2.3.1 includes the knowledge or awareness of the Vendors'
shareholders, directors, or employees;
13.2.3.2 imposes on the Vendors and each of them:-
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13.2.3.2.1 the obligation to make all
diligent and reasonable inquiries, before entering into this Agreement, to
ensure that the warranty is accurate, complete and not false or misleading; and
13.2.3.2.2 liability for breach of warranty
if the Vendors or their directors or the employees would have acquired knowledge
of facts establishing a breach if the Vendors had carried out those inquiries.
13.2.4 Application of warranties to ACS
13.2.4.1 The parties acknowledge that the last accounts were
prepared in respect of a period during which the Company owned three out of the
four issued shares in ACS;
13.2.4.2 The warranties contained in clauses 10.3 and 13.1 and
the First Schedule shall be read as applying, in so far as their provisions
shall be so applicable, to the audited financial statements of ACS and of each
other subsidiary for the year ending 30 June 1996.
13.2.4.3 Liability for breach of warranty shall be applied as if at all times
ACS were a wholly owned subsidiary of BCE and damages will also be assessed
accordingly.
13.2.5 in the interpretation of this clause 13.2 "employees" shall mean
the following employees of the Company or its subsidiaries:-
Ernest Robins, Martin Roberts, David Knight, Michael Geuder,
Alan James and Gerald Tinney.
Reliance on contractual warranties
13.3 The Purchaser has entered into this Agreement in reliance on each of the
warranties contained in Schedule 1 and the representations set out in clause 12.
Accuracy of warranties
13.4 The Vendors and the Guarantors warrant that the warranties contained in
this Agreement are accurate, contain no material omissions and are not
misleading or deceptive.
Application of warranties at completion
13.5 Any warranties which are expressed to apply at the date of this Agreement
also apply as warranties made jointly and severally by the Vendors and the
Guarantors with reference to the facts existing for each day up to and including
the date of completion of the sale of shares to the Purchaser.
Disclosure of facts rendering warranty incorrect
13.6 13.6.1 In the event of any party becoming aware prior to completion of any
facts which render any of the warranties contained in this Agreement incorrect,
inaccurate, false or misleading, and materially adverse to the Purchaser, such
party warrants that it will disclose those facts to the Vendors or the Purchaser
as the case may be prior to that completion.
13.6.2 The Purchaser acknowledges that as at the date hereof it is unaware
of any facts which render any of the warranties contained in this Agreement as
incorrect false or
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misleading and materially adverse to the Purchaser, except as specified in
clause 13 and Schedule 5 or in any other provision of this Agreement.
Verification of warranties
13.7 The Purchaser is entitled to make requisitions and inquiries before
completion to verify any of the warranties given by the Vendors or the
Guarantors and contained in this Agreement.
Vendors' obligation to furnish information
13.8 The Vendors agree to furnish before completion to the Purchaser or to the
Purchaser's solicitors or accountants (as may be requested by the Purchaser)
such documents and information as the Purchaser may reasonably require to verify
the accuracy of any warranties contained in this Agreement.
Non-Merger
13.9 The warranties contained in this Agreement and its Schedules do not merge
on completion of the sale of shares. Notwithstanding any rule of law to the
contrary, the Purchaser must give written notice to the Vendors of the nature of
any warranty claim within five (5) years from the date of completion of this
Agreement. After the end of such period all warranties shall expire except in
respect of any warranty claim which the Purchaser notifies the Vendors of by
notice in writing within the five (5) year period, and the benefit of those
warranties subject to any such notice shall enure beyond the notice period
herein referred to for the benefit of the Purchaser. This notice obligation does
not apply in respect of claims arising from circumstances involving fraud as to
which there shall be no notice period.
Rescission for breach of warranty
13.10 DELETED
13.11 If the Purchaser before completion discovers a breach of any warranty
contained in this Agreement which would render the Vendors liable for debt or
damages exceeding one million dollars (A$1,000,000), or would reduce the value
of the business of the Company or any of its subsidiaries or any of the assets
or increase their liabilities by an amount exceeding one million dollars
(A$1,000,000) the Purchaser may elect to:
13.11.1 rescind this Agreement by notice in writing to the Vendors and in
respect of such rescission the provisions of clause 27 hereof shall apply; or
13.11.2 complete the purchase of the shares referred to in Recital E
hereof, and receive an allowance on completion in respect of such breach of
warranty and notify the Vendors in writing of such breach and its election
(which the Purchaser agrees to do), in which event the Vendor may, within five
(5) business days of such notification rescind this Agreement by notice in
writing to the Purchaser and in respect of such rescission the provisions of
clause 27 hereof shall apply.
Measure of damages and liability for damages
13.12 13.12.1 The Vendors and the Guarantors jointly and severally are liable to
the Purchaser for damages for any breach of any warranty contained in this
Agreement, whether the breach of warranty is discovered by the Purchaser before
completion or is a breach for which notice is given within the period of five
(5) years after completion of the sale (as required by
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clause 13.9), unless the Purchaser shall have rescinded this Agreement in
accordance with clause 13.11.1 in which event no damages shall be payable by the
Vendors.
13.12.2 A threshold shall apply to the amount of the liability of the
Vendors for damages for any breach of any warranty contained in this Agreement
as set out in clause 24.
13.12.3.1 The aggregate of the amounts able to be recovered by the
Purchaser in respect of any warranty claim, including costs in establishing the
liability of the Vendor (other than a claim for breach of warranties relating to
taxation being the matters referred to in Section I of Schedule 1) shall not
exceed the amount of ten million dollars (A$10,000,000);
13.12.3.2 The aggregate of the amounts able to be recovered by the
Purchaser in respect of breaches of warranties relating to taxation being the
matters referred to in Section I of Schedule 1 including costs in establishing
the liability of the Vendor shall not exceed the amount of twenty million
dollars (A$20,000,000);
13.12.3.3 The aggregate of the amounts referred to in sub-clauses 13.12.3.1
and 13.12.3.2 above shall not exceed twenty million dollars (A$20,000,000).
13.12.4 The Purchaser will notify the discovery of any breach of warranty
contained in this agreement to the Vendors in the period of five (5) years from
the date of completion of this agreement except in relation to any breach of
warranty involving fraud in respect of which the time for notification shall be
unlimited.
13.12.5 Damages for breach of warranty shall be determined having regard to
the principles for the assessment of damages, including each of the following:-
13.12.5.1 any diminution in the value of the assets below
their value if there was no breach of warranty;
13.12.5.2 any additional liability incurred by the Company or
any of its subsidiaries for debt, damages, or any other loss incurred by the
Company or any of its subsidiaries, including the costs of investigating and
(subject to the proviso hereto) contesting claims giving rise to a breach of
warranty, to the extent not already reflected in clause 13.12.5.1 above;
PROVIDED HOWEVER THAT prior to contesting any such claim the Company or its
subsidiary shall obtain the written advice of a Barrister whom the Vendors and
the Purchaser agree to appoint jointly and who has at least seven (7) years
experience in the field, to the effect that the claim does have a reasonable
chance of success; THAT the Vendors and the Purchaser will be bound by such
opinion; and THAT the solicitor acting for the Company or a subsidiary in those
proceedings shall be the solicitor usually appointed by the Company, which shall
liaise and consult with the Vendors at all relevant times during the course of
the litigation arising from such claim.
13.12.5.3 any taxation liability that will arise on the
receipt of or in respect of an amount of damages payable under this agreement
but only in the event and to the extent:-
(a) that in assessing the amount of damages
payable under this agreement the amount of all taxes which would have been
payable but for the breach of warranty has been taken into account and reduced
the assessment accordingly; and
(b) that such taxation liability is not already
reflected in clauses 13.12.5.1 and 13.12.5.2 above.
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13.12.6 When quantifying the liability of the Vendors or of the Guarantors
for breach of warranty, the amount recoverable from the Vendors or the
Guarantors shall be reduced by each of the following:-
13.12.6.1 any compensation or reimbursement net of any
relevant tax payable in respect thereof (whether as regards the Company or a
subsidiary) received by the Company or its subsidiary or by the Purchaser from
any third party or any benefit received by the Company or its subsidiary as a
result of or consequent on the matters giving rise to the liability for breach
of warranty;
13.12.6.2 any reduction or extinguishment in the taxation or
other liability of the Company or its subsidiary as a result of the claim or
payment giving rise to the breach of warranty;
13.12.6.3 any provision included or allowed in the Company's
last accounts, which is current at the date of completion of this Agreement,
providing against the matter or event constituting the breach of warranty, to
the extent of that provision. with the intent that the Company and the Purchaser
are put back into the position they would have been but for the breach of
warranty.
13.12.7 The Purchaser shall be entitled, in respect of any liquidated
claim or sum certain which shall be due and payable by the Vendors or the
Guarantors to the Purchaser arrising from or as a result of the provisions of
this Agreement pursuant to any express right in this Agreement or under the
general law, and whether against the Vendors or the Guarantors or any one or
more of them, to claim such amount as a set off against principal monies and
interest payable by the Purchaser under the Loan Agreements to be entered into
on completion by the Purchaser in accordance with the provisions of clause 9.1
hereof and Schedule 7.
Notification of breach of warranties
13.13 The Purchaser shall notify the Vendors in writing of any of breach of
warranty within seven (7) business days of becoming aware of the same.
13.14 The parties shall attempt to agree on a means of remedy or rectification
of all alleged breaches of warranty under this agreement. If they are unable to
so agree then the such disagreement shall be regarded as a dispute for the
purposes of clause 29.1 and clause 29 shall operate in relation to such dispute
except for the provisions of clauses 29.2 and 29.7 which shall not operate.
PURCHASER'S REPRESENTATIONS
The representations
14.1 The Purchaser represents, that at the date of this Agreement:-
14.1.1 The Purchaser (if a company)-
14.1.1.1 has authorised the execution of this Agreement under
its common seal;
14.1.1.2 has the legal power to enter into the provisions of
this Agreement;
14.1.1.3 has not received:-
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14.1.1.3.1 any notice, summons or order for winding up;
14.1.1.3.2 any notice or order for the appointment of a
receiver or of an administrator;
14.1.2 There are no currently unsatisfied judgements, orders or writs of
execution against the Purchaser, nor has the Purchaser entered into any
arrangement or composition with creditors.
14.1.3 The Purchaser is not involved in or aware of any current or
threatened civil or criminal proceedings, arbitration or dispute, relating to
its assets or business or shares, or directors or principal executive officer.
14.1.4 14.1.4.1 In this Clause pre-completion transactions shall mean
invoiced or supplied work undertakings projects and contractual works entered
into or engaged upon by the Purchaser involving the furnishing of advice the
manufacture and supply and installations of materials or equipment or plant and
the performance of any work whether during the ordinary course of the Purchasers
business or otherwise at any time prior to the date of completion of this
Agreement.
14.1.4.2 There are no nor will there be any liabilities claims
causes of actions suits or demands in respect of any pre-completion transaction
as at completion or for A period OF FIVE (5) YEARS after completion.
Application of representations at completion
14.2 These representations apply at this date of this Agreement and up to and
including the date of completion of the sale of shares to the Purchaser,
provided that this clause shall not affect the operation of clause 14.1.4.2.
Disclosure of facts rendering representation incorrect
14.3 In the event of the Purchaser becoming aware prior to completion of any
facts which render any of the representations under this clause incorrect,
inaccurate, false or misleading, the Purchaser warrants that the Purchaser will
promptly disclose those facts to the Vendors in writing prior to completion.
14.4 The Purchaser warrants that it is or will prior to completion be a fully
owned subsidiary of Continental Conveyor and Equipment Company LP.
14.5 DELETED
Indemnities
The indemnity
15.1 Subject to clause 13.1 hereof, the Vendors and the Guarantors agree jointly
and severally from the date of this Agreement and for each day up to and
including the day of completion, and from completion to indemnify the Purchaser
and the Company and its subsidiaries against the losses, damages and liabilities
specified in the Deed of Indemnity in Schedule 2:
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15.1.1 which in aggregate are limited to a sum of ten million dollars
(A$10,000,000) in respect of any warranty claim (other than a claim for
breach of warranties relating to taxation being the matters referred to in
Section I of Schedule 1);
15.1.2 which in aggregate are limited to a sum of twenty million dollars
(A$20,000,000) in respect of breaches of warranties relating to taxation being
the matters referred to in Section I of Schedule 1; and
15.1.3 Notwithstanding the foregoing, the aggregate of all losses damages
and liabilities under the Deed of Indemnity in Schedule 2 referred to in
sub-clauses 15.1.1 and 15.1.2 above shall not exceed twenty million dollars
(A$20,000,000).
Preparation of Deed of Indemnity
15.2 The Purchaser will cause to be prepared the Deed of Indemnity and shall
submit for execution to the Vendors and the Guarantors not later than 7 days
before the date of completion sufficient copies of that deed duly executed by
the Purchaser to enable each party to the deed to receive a fully executed copy.
Delivery of executed deed
15.3 On completion the Vendors will deliver to the Purchaser the Deed of
Indemnity duly executed by the Vendors, by the Guarantors and by the Company.
Priorities
15.4 15.4.1 The Purchaser may claim against the Vendors or any one or more of
the Guarantors either for breach of warranty or under this indemnity, or
concurrently for both breach of warranty and for indemnity.
15.4.2 The Purchaser may exercise and exhaust all remedies against the
Vendors and the Guarantors for breach of warranty and for indemnity, without
being required to elect between those rights and remedies.
15.4.3 The Vendors and the Guarantors are liable to the Purchaser for the
full amount covered by the warranties and the indemnities for the particular
matters claimed, but the amount recovered under either of them shall be credited
against the claim made under the other basis.
Service agreements
Service agreements with Vendors
16.1 Each of Peter John Baird, Mark David Elliott, John Robert Clack and Stephen
James Page ("Executives") will on completion enter into and execute severally a
service agreement with the company named as a party to the deed set out in
Schedule 3.
16.2 The form and content of each of such service agreement shall be in the form
of that set out in Schedule 3 to this Agreement. The bonus percentage to be
included in clause 4.5 of such agreement shall be as follows:-
PETER JOHN BAIRD: 6%
MARK DAVID ELLIOTT: 6%
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JOHN ROBERT CLACK: 6%
STEPHEN JAMES PAGE: 2%
Preparation and Execution of service agreement.
16.2.1 the Purchaser shall cause to be prepared the form of each service
agreement;
16.2.2 the Purchaser will submit to each Executive no later than five (5)
business days prior to the date fixed for completion of this Agreement an
engrossment of the service agreement together with sufficient copies in order
that there shall be an executed copy of the deed available for the Executives,
Purchaser and the company named as a party in the deed set out in Schedule 3 at
completion;
16.2.3 the Vendors and the Guarantors jointly and severally shall cause
such deeds to be executed by the respective Executives and by the company named
as a party in the deed set out in Schedule 3 before completion and for the same
to be handed over to the Purchaser on completion.
Obligation on completion
16.3 Completion of this sale is conditional on the Vendors having procured the
execution of the deeds submitted by the Purchaser in accordance with para 16.2,
by each of the parties to such deeds including by the company named as a party
in the deed set out in Schedule 3 and on fully executed copies of such deeds
being handed over by the Vendors to the Purchaser and to the Company on
completion.
PROPERTY, RISK AND TITLE
Transfer on completion
17.1 The property, risk (of loss or damage) and title to the Vendors' shares:-
17.1.1 remains with the Vendors until completion;
17.1.2 passes to the Purchaser on and from completion.
Destruction of Company's property
17.2 If any part of the business premises or equipment plant and machinery owned
or occupied by the Company and any of its subsidiaries is destroyed or
substantially damaged before completion:-
17.2.1 the Vendors shall within 48 hours after the destruction or damage
notify the Purchaser in writing ("notice of damage") of the occurrence, the
nature and extent of the loss and whether and to what extent it is covered by
insurance;
17.2.2 DELETED
17.2.3 if the allowance provided for in clause 10.1.2 applies to a claim
for damage or destruction which claim exceeds one million dollars (A$1,000,000),
which is made before completion and which is not to an amount of at least the
excess over one million dollars (A$1,000,000), covered by realisable payments
under policies of insurance, then the Vendors
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may by notice in writing given to the Purchaser within one calendar month of the
occurrence of such damage or destruction, rescind this agreement.
Meaning of destruction or substantial damage
17.3 For the purpose of clause 17.2 destruction or substantial damages means
total amount of the loss or damage to the assets of the Company or of the
relevant subsidiary of the Company exceeding one hundred thousand dollars
(A$100,000) comprising:-
17.3.1 the cost or repair or replacement of the destroyed or damaged items;
and
17.3.2 loss of profits and other losses incurred or reasonably expected to
be incurred as a result of the destruction or damage.
Adjustments where insurance is inadequate
17.4 Subject to clause 17.2.3 if the Purchaser elects under clause 17.2.2 to
purchase the shares and if the loss or damage is not covered to its full extent
by insurance, the share price will be adjusted on completion by reducing the
share price by the amount of the loss or damage net of any insurance recoveries.
COSTS
Legal and other costs
18.1 Subject to clause 21.6 each party shall bear its own legal and other costs
of the negotiations, due diligence enquiries, and the preparation, execution and
completion of this Agreement and of all other instruments.
Stamp duty
18.2 The Purchaser is responsible for stamp duty payable on this Agreement, the
transfers of shares, and on all other instruments executed pursuant to the
provisions of this Agreement except any stamp duties payable on the executed
forms of the documents referred to in Schedules 2 to this Agreement.
18.3 The Purchaser will pay to BCE on completion the stamp duty payable on the
share transfer document referred to in clause 5.1.6 and the reasonable costs
incurred by the Company in respect of the preparation, execution and stamping of
that share transfer.
CONDUCT PENDING COMPLETION
Assistance to purchaser
19.1 From the date of this Agreement until completion the Vendors agree to
cooperate with the Purchaser and to procure the cooperation of the officers and
employees of the Company and its subsidiaries to allow the Purchaser, and the
Purchaser's employees and agents, including solicitors, accountants and other
consultants, to:-
19.1.1 attend during business hours at the premises of the Company and its
subsidiaries;
19.1.2 observe the conduct of the business;
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19.1.3 inspect and examine the statutory, financial, taxation business and
other records, correspondence and documents of the Company and its subsidiaries;
19.1.4 consult with the auditor, officers and employees of the Company and
its subsidiaries, with regard to the conduct of the business and the Company,
assets, liabilities, employees and business of the Company and its subsidiaries.
Confidentiality
19.2 The Purchaser warrants that the Purchaser will use its best endeavours to
ensure that its employees, agents and advisers shall treat all the financial,
marketing, technical and other information provided by or on behalf of the
Vendors or the Company relating to the Company its subsidiaries and the
business, whether orally or in writing as confidential, until completion, and
not, without the express written permission of both the Vendors and the Company,
disclose any of it to anyone else other than the Vendors the Company and the
Purchaser's parent company and advisers employees and agents of the Purchaser's
parent company.
Management and conduct of business
19.3 The Vendors agree to ensure that until completion the business and affairs
of the Company and each subsidiary will be conducted in the ordinary course of
business as follows:-
19.3.1 The Company and its subsidiaries will conduct and manage the
business and their affairs:-
19.3.1.1 with reasonable care and skill in accordance with normal
and prudent practice;
19.3.1.2 as a going concern;
19.3.1.3 so as to maintain the goodwill, value and profitability of
the business; and
19.3.1.4 to preserve intact its business organisation, employees,
management, suppliers and distributors.
19.3.2 The Company and its subsidiaries shall:-
19.3.2.1 maintain, preserve and keep in working condition their
assets, plant and equipment and stock-in-trade excepting fair wear and tear;
19.3.2.2 maintain the licences, permits and authorities held by the
Company and its subsidiaries which are required to conduct the business;
19.3.2.3 maintain until after completion all insurance policies
held by the Company and subsidiaries at the date of this Agreement;
19.3.2.4 maintain up to date the statutory, financial and other
books, accounts and records of the Company and its subsidiaries.
19.3.3 The Company and its subsidiaries shall not without the consent in
writing of the Purchaser, which consent shall not be unreasonably withheld:-
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19.3.3.1 dispose of or encumber any of its assets, other than in
the ordinary course of business;
19.3.3.2 dispose of stock-in-trade except at usual and prevailing
prices and conditions and in the ordinary course of business;
19.3.3.3 enter into any material contract, commitment or liability
affecting the Company or any subsidiary unless both:-
19.3.3.3.1 such contract commitment, or liability is
entered into in the ordinary course of the business of the Company or its
subsidiary; and
19.3.3.3.2 the amount of such contract, commitment or
liability does not exceed one hundred thousand Dollars ($100,000) or extend
beyond twelve months;
19.3.3.4 subject to clause 19.3.3.3 purchase any assets, plant or
equipment at a price, except:-
19.3.3.4.1 to replace essential plant or equipment
required to conduct the business of the Company and its subsidiaries which has
been damaged, destroyed or is not in working order or needs replacement as a
result of fair wear and tear;
19.3.3.4.2 to perform a commitment entered into before the
date of this Agreement;
19.3.3.5 terminate the office or employment of any officer or
employee of the Company or its subsidiaries, or change the terms of employment
of any employees or pay any bonuses without the consent of the Purchaser to any
employees or alter the remuneration or conditions of employment of employees
(except as to non-salaried employees) other than in the ordinary course of
business;
19.3.3.6 hire or appoint any new employees or officers of the
Company or its subsidiaries (except as to non-salaried employees) other than in
the ordinary course of business or other than as expressly provided in this
Agreement;
19.3.3.7 alter the constitution of the Company or its subsidiaries,
hold any meetings of the Company or any of its subsidiaries, pass any
resolutions, allot any shares other than as provided for in clause 3 hereof, or
declare any dividend or distribute assets or profits of the Company or a
subsidiary or return any capital to its members, except as is expressly provided
in this Agreement.
19.3.3.8 Declare and/or pay any dividend or make superannuation
payments to the Vendors or the Guarantors other than as provided for in Recitals
H to this Agreement; the proposed service agreement under Schedule 3 to this
Agreement; or the Superannuation Guarantee Scheme.
REQUISITIONS
Time for requisitions
20.1 The Purchaser or the Purchaser's solicitor may, within ten business days
after the date of this Agreement, deliver to the Vendors' solicitor, or to the
Vendors if not represented by a solicitor, requisitions and inquiries regarding
the matters indicated in para 20.2 (called "requisitions").
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Subject of requisitions
20.2 Requisitions may be made regarding the Vendors' shares, the Company and its
subsidiaries (including their assets, liabilities, and the topics covered in
this Agreement) and the business.
Consequences of being late
20.3 The Purchaser is deemed to have waived this entitlement if the requisitions
are not made within the time indicated in 20.1.
Replies to requisitions
20.4 Completion is conditional on the Vendors' solicitor, or the Vendors if not
represented by a solicitor, furnishing detailed, accurate and complete replies,
to the Vendors' knowledge, information and belief, to the requisitions in
accordance with Clause 20.5.
Time for replies
20.5 The replies to requisitions shall be given within five (5) business days
after receipt of the requisitions and in any event not less than three business
days before the date of completion.
COMPLETION
Time of completion
21.1 Completion of this agreement shall occur not later than 4 pm on the day
which is the 15th business day after the completion of the due diligence. The
due diligence shall be completed on or prior to 22 November 1996 or such later
date as to which the parties may agree in writing. In respect of the day fixed
for completion time is not of the essence of this Agreement. If completion does
not occur on that date, either party may on or after the next business day serve
on the other party a notice requiring completion to occur on a business day
which is not less than ten (10) business days after the date when notice is
received by the recipient of the notice, and service of such notice renders such
date specified in that notice an essential time for completion. In the event
that the due diligence is not completed by 22 November 1996, then the Vendors
may rescind this Agreement by notice in writing to the Purchaser
Place of completion
21.2 Completion shall be effected at the Vendors' solicitor's office or at such
other place as is nominated by the Vendors' solicitor or agreed between the
parties.
Vendors to vest title and control
21.3 On completion the Vendors will vest in the Purchaser title to the Vendors'
shares in the Company and control of the assets, business and affairs of the
Company and its subsidiaries, and the parties will comply with all matters
required to occur on completion in accordance with this Agreement.
Delivery to Purchaser on completion
21.4 On completion the Vendors will deliver to the Purchaser:-
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21.4.1 a statutory declaration verifying the Vendors' title,
capacity and ownership of the Vendors' shares in the Company;
21.4.2 share certificates in respect of the Vendors' shares;
21.4.3 transfers of the Vendors' shares to the Purchaser, duly
executed;
21.4.4 discharges or releases of mortgages, charges or encumbrances, or
of outstanding interests, over any asset of the Company or of its subsidiaries
not listed in Tables 4 and 5 to Schedule 5;
21.4.5 keys and security devices to the business premises;
21.4.6 written resignations by the directors, secretary and public
officer of the Company and each subsidiary;
21.4.7 authority for alteration of instructions for the operation of
the bank accounts of the Company and each subsidiary, as required by the
Purchaser, duly executed;
21.4.8 the following property and records of the Company and each of
its subsidiaries:-
21.4.8.1 the certificate of incorporation;
21.4.8.2 the common seal and any other seals;
21.4.8.3 minutes books of directors' and shareholders'
meetings;
21.4.8.4 all available copies of the memorandum and articles
of association;
21.4.8.5 all registers of members, directors, charges, and
any other statutory registers, fully entered up to the date of completion;
21.4.8.6 cheque books, deposit books, bank statements and
other banking books and records;
21.4.8.7 control over the financial, accounting and business
records, including copy taxation returns, assessments, and all other documents
and records held by each company relating to its business, assets, liabilities
and affairs;
21.4.8.8 title deeds and records of ownership relating to the
assets of the Company and each subsidiary, including all leases, licences,
authorities and permits in respect of the business and including the share scrip
in respect of the shares held by the Company in the subsidiaries as specified in
Recital B and in respect of the shares to be acquired by the Company as
specified in Recital C;
21.4.8.9 insurance policies held by the Company and each
subsidiary;
21.4.8.10 the trust deed, and all books, records, taxation
returns, relating to each superannuation fund of the Company and each of its
subsidiaries;
21.4.8.11 the Deed of Indemnity in accordance with clause 15;
21.4.8.12 service agreements in accordance with clause 16;
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21.4.8.13 the Vendors' authority to receive the balance
purchase price and a direction as to its payment.
21.4.8.14 the deed referred to in clause 32.
Meeting of directors
21.5 The Vendors will cause meetings of the directors of the Company and of each
of its subsidiaries to be held at the time and place of completion, in order to:
21.5.1 accept the resignations of the relevant directors, secretary and
public officer;
21.5.2 appoint the Purchaser's nominees as directors, secretary and
public officer of each company;
21.5.3 approve the Purchaser as a member of the Company and resolve to
register the transfers of shares subject to the transfers being stamped with
payment of stamp duty;
21.5.4 authorise the new arrangements for operating each company's bank
accounts. Debts relating to Company and its subsidiaries and Vendors
21.6 21.6.1 If any moneys are due by the Vendors or the Guarantors to the
Company or any of its subsidiaries at the time of completion, the entire debt is
payable by the Vendors or the Guarantors as the case may be to the creditor
company on completion and the creditor company shall execute a release
discharging the Vendors or the Guarantors as the case may be from liability at
the date of completion.
21.6.2 If any moneys are due by the persons or companies nominated in
Table 25 of Schedule 5 to the Company or any of its subsidiaries at the time of
completion, the entire debt shall be paid by the Vendors either as debtor or as
agent for the debtor (as the case may be) to the creditor company on completion
and the creditor company shall execute a release discharging the Vendors from
any liability at the date of completion.
21.6.3 Any moneys due by the Company or any of its subsidiaries to one
another or to the Vendors or to the Guarantors or any of them shall be paid by
the debtor company on completion as set out in Table 23 to Schedule 5, and the
Vendors and Guarantors shall on completion execute a release discharging the
debtor company as the case may be from liability at the date of completion.
21.6.4 Any monies due by the Company or any of its subsidiaries to the
persons or companies nominated in Table 24 to Schedule 5 shall be paid by the
debtor Company on completion.
21.6.5 The amount of all professional and other fees or outgoings of a
non-deductible character incurred or expended by the Company and each of its
subsidiaries on behalf of the Vendors or the Guarantors with its accountants and
lawyers or otherwise in respect of negotiations towards the exchange of this
agreement, (otherwise than for preparation of accounts and reports required by
this agreement), litigation entered into prior to the date hereof and the
obtaining of advice in relation to previous negotiations between the parties and
in respect of this Agreement and not already adjusted in the last accounts, must
be paid by the Vendors or the Guarantors as the case may be to the Company on
completion.
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21.6.6 The amount of each debt due to the Company or each of its
subsidiaries and unpaid at completion which is at completion or shall later
become overdue by more than 180 days, to the extent not already provided against
in the last accounts, shall, at the time of completion, or within seven (7) days
of the date upon which each such debt shall later become overdue by more than
180 days (as the case may be), be paid by the Vendors to the Purchaser and each
such debt shall thereby be assigned to the Vendors as tenants in common in equal
shares, and the Vendors shall be responsible for the collection of the same for
their own benefit and in that event the Purchaser will co-operate with the
Vendors and use its best endeavours to assist the Vendors in collecting such
debts. The Purchaser shall cause the Company to do and sign all such things and
documents of assignment and notice as reasonably required by the Vendors to
effect the said assignments.
21.6.7 DELETED.
Guarantees
21.7 The Purchaser agrees to indemnify the Vendors and the Guarantors against
any liability arising after the date of completion of this agreement under any
guarantees which have been entered into by one or more of the Vendors or the
Guarantors for the obligations of the Company or any of its subsidiaries and
which have been made in the ordinary course of business and which remain in
force after completion.
Purchaser's obligations on completion
21.8 On completion the Purchaser will deliver to the Vendors:-
21.8.1 a nomination of the person whom the Purchaser desires to be the
directors, secretary and public officer of each of the Company and its
subsidiaries and their written consent to accept nomination for those offices;
21.8.2 bank cheques for the balance purchase price (plus or minus
adjustments) to the Vendors or as the Vendors may direct;
21.8.3 any other documents, authorities or undertakings expressly
provided in this Agreement.
PATMORE LOAN PROVISION
21.9.1 The parties acknowledge:
21.9.1.1 At the date of this Agreement Patmore owns one ordinary share
in the capital of ACS.
21.9.1.2 The remaining shares in ACS are owned by BCE.
21.9.1.3 The parties have entered into this Agreement for sale of
shares in BCE on the basis that on or prior to completion of this Agreement BCE
will own the whole of the issued capital in ACS.
21.9.1.4 To this intent the Company is on or prior to completion
purchasing from Patmore one ordinary share in the capital of ACS for the
consideration of A$1,443,067.00.
21.9.2 On completion of the purchase by BCE of the ACS share as referred to in
clause
21.9.1.4 above Patmore will direct the payment of A$600,000 being part of the
consideration
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referred to in clause 29.1.9.4 above in favour of the Purchaser. The parties
shall cause BCE to pay such sum by bank cheque to the Purchaser on completion
21.9.3 The A$600,000 of such directed consideration in clause 21.9.2 above shall
then be owing by the Purchaser to Patmore. Patmore and the Purchaser agree that
the terms of repayment of the said loan shall be as set out in the loan
agreement set out in schedule 7(b) and the said loan shall for all purposes be
the same as the loan under such loan agreement.
SHAREHOLDERS AGREEMENT WITH RINGWAY SHAREHOLDERS
22.1 The Vendors shall use their best endeavours to procure on or before
completion a Shareholders Agreement on the part of Paul Jeffrey Owen, Peter
Gordon Scifleet and Bruce Douglas Incoll as shareholders in Ringway Pty Limited
ACN 003 581 897.
22.2 Such agreement shall be in the form of the draft deed in Schedule 8 to this
Agreement.
22.3 The Vendors shall use their best endeavours to cause the deed in accordance
with Schedule 8 to be prepared and executed by Paul Jeffrey Owen, Peter Gordon
Scifleet and Bruce Douglas Incoll and the Company before completion and handed
over to the Purchaser on completion.
PARTIES' CONDUCT AFTER COMPLETION
Further assurance
23.1 The Vendors and the Guarantors agree that after completion each of them
will execute such instruments and deeds and perform such acts as will be
reasonably necessary to carry out the provisions of this Agreement and the
transactions contemplated by this Agreement.
Provision of information by Vendors
23.2 For the period of five (5) years after completion, the Vendors and the
Guarantors will promptly provide to the Purchaser or to persons nominated by the
Purchaser, including to the directors and the auditor of the Company, such
information and explanation relating to the affairs of the Company prior to
completion as is reasonably required by the Purchaser for the purpose of
litigation or disputes involving the Company and third parties, and to satisfy
the requirements of taxation and other authorities.
Access to Company's records
23.3 The Purchaser agrees to ensure that the Company will permit the Vendors,
and the Vendors' authorised agent, for the period of five (5) years after
completion, at reasonable times, to inspect and at the Vendors' expense to
obtain copies of the Company's financial and business records, relating to the
period of seven (7) years before completion, if reasonably required by the
Vendors for taxation purposes or for litigation between the Vendors and parties.
24.1 In this clause:-
24.1.1 "Damages for breach of contractual warranty" shall mean the damages
for breach of warranties contained in this Agreement as referred to in clause 13
and shall include contractual warranties relating to each of the Company and
each of its subsidiaries;
24.1.2 "Damages for breach of product warranty" shall mean the damages for
breach of warranties described in clauses 4.1 and 4.2 of the Deed of Indemnity
set out in
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Schedule 2 to this Agreement, and shall include warranties under agreements made
by or in respect of products manufactured, sold, distributed or installed by the
Company and each of its subsidiaries.
24.2 No action or proceeding shall be instituted by the Purchaser against any
other party to this Agreement for damages for breach of contractual warranty or
for damages for breach of product warranty unless and until the amount of any
claim for such damages (and in respect of more than one claim the aggregate of
the amounts of such claims for damages) shall exceed A$250,000.
24.3 In all circumstances the Purchaser will bear and be responsible for the
threshold of A$250,000 forming part of damages for breach of contractual
warranty and damages for breach of product warranty referred to in clause 24.2.
24.4.1 In the event the Purchaser makes a claim for breach of contractual
warranty on the basis that one or more assets of the Company have a lesser value
than that attributed by the last accounts and the audited financial statements
of the subsidiaries for the period ending 30th June 1996 ("the balance sheet")
and such claim is ultimately proven and damages are payable by the Vendors or
Guarantors to the Purchaser then payment shall be delayed pending the Vendors or
Guarantors electing by notice in writing to the Purchaser, to call for an
assessment ("the assessment") of all assets valued in the balance sheet.
24.4.2 The Purchaser's accountants and the Vendors' and/or Guarantors'
accountants shall jointly carry out the assessment and shall be entitled to have
regard to knowledge subsequent to 30 June 1996 bearing on the value of assets as
at 30th June 1996. In the event that the Purchaser's accountants and the
Vendors' and/or Guarantors' accountants are unable to agree on the outcome of
the assessment then such disagreement shall be regarded as a dispute for the
purposes of clause 29.1 hereof and clause 29 hereof shall operate in relation to
such dispute.
24.4.3 The assessment shall take into account the amount of any damages payable
to the Purchaser under clause 24.4.1 above, which shall then be reduced by the
amount that the assessment shows is the net surplus of all other assets in the
balance sheet over the book value thereof in the balance sheet, and such reduced
amount (if any) shall then subject to clause 13.12.3 be payable by the Vendors
and/or Guarantors.
CONSEQUENCES OF TERMINATION
25. If this Agreement is terminated by the Purchaser upon the Vendors' breach of
an essential term or by the Purchasers acceptance of the Vendors repudiation of
this Agreement or for breach of any warranty contained in this Agreement, the
Purchaser is entitled to recover from the Vendors:-
25.1 return of any money paid by the Purchaser on account of the purchase
price; and
25.2 all direct legal and accounting costs and the expenses incurred by the
Purchaser to acquire financing in entering into this agreement and in respect of
such breach.
26. If the Vendors terminate this Agreement due to the Purchaser's breach of an
essential term or by virtue of the Vendors' acceptance of the Purchaser
repudiation of this Agreement, the Vendors are entitled:-
26.1 to retain or to resell the Vendors' shares in the Company; and
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26.2 to recover from the Purchaser all direct legal and accounting costs
incurred by the Vendor in entering into this Agreement and in respect of such
breach.
RESCISSION OF AGREEMENT
Consequences of rescission
27.1 If this Agreement is rescinded by either party pursuant to an express right
to rescind contained in this Agreement:-
27.1.1 it is a rescission ab initio and the parties shall be restored, as
far as possible, to the position as if they had not entered into this Agreement;
27.1.2 any money, including interest, paid by the Purchaser towards the
purchase price, shall be refunded to the Purchaser;
27.1.3 each party will bear its own costs and expenses of entering into and
participating in this Agreement and the rescission;
27.1.4 neither party will be liable to the other party for any damages or
claims under or relating to this Agreement.
Clause inapplicable to termination
27.2 This clause does not apply to the termination of this Agreement by either
party, for breach, for repudiation or for breach of warranty.
EVENTS OF DEFAULT
28.1 The following provisions of this agreement shall, without affecting the
essentiality of any other provisions of this Agreement under the general law, be
deemed to be essential terms of this agreement:-
clause 2.4 Benefit of agreement not assignable
clause 3 Share allotment
clause 9 Manner of payment of purchase price
clause 9.1 Loan Agreement
Clauses 9.6 letter of comfort and Guarantor's accounts
clause 10.1 Adjustments on completion
clause 16.1 Service agreements with Guarantors
Clause 19.3 Management and conduct of business until completion
clause 21.4 Deliverables on completion
clause 21.5 Meeting of directors
clause 21.9 Deed of Loan Agreement
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clause 31 Guarantee
28.2 A party may terminate this agreement by notice in writing to the other
within fourteen (14) days of receiving Notice of an event of default.
28.3 The following are events of default:-
28.3.1 if another party is a natural person: if that person shall be made
bankrupt or shall assign his estate to the benefit of creditors or shall enter
into an arrangement under Part X of the Bankruptcy Act 1966;
28.3.2 if another party is a corporation if the corporation shall have a
liquidator appointed or a petition presented seeking its winding up or an
administrator appointed under Part 5.3A of the Corporations Law;
28.3.3 if a party shall commit a breach of a non-essential term of this
agreement and such non-essential term being able to be remedied, that party
shall not have effected its remedy within thirty (30) days of being given a
notice requiring remedy of that breach;
28.3.4 if breach of a non-essential term of this agreement shall be a
continuing breach and the party in breach shall not have remedied that breach
within thirty (30) days of being given notice requiring its remedy;
28.3.5 breach of a non-essential term of this Agreement which is not
capable of being remedied by the party committing the same.
28.3.6 breach of an essential term of this Agreement.
MEDIATION
Settlement of disputes by Mediation
29.1 In the event of there being any dispute between one or more of the parties,
before or after completion, relating to or arising out of this Agreement,
including its construction, effect, the rights and obligations of the parties,
the performance, breach, rescission or termination of this Agreement, the
entitlement of any party to damages or compensation and the amount of that
entitlement (called "dispute"), the dispute shall be and is hereby referred to a
Mediator, to be agreed upon by the parties or such of them as shall be in
dispute or in the absence of agreement to a person nominated for the purpose by
the President for the time being of The Law Society of New South Wales, in
accordance with the procedure set out in clauses 29.3 to 29.5 below.
29.2 Unless a party to this Agreement has complied with paragraphs 29.2 to 29.5
inclusive, that party may not commence court proceedings relating to any dispute
arising from this Agreement except where that party seeks urgent interlocutory
relief in which case that party need not comply with this clause before seeking
such relief. Where a party to this Agreement fails to comply with paragraphs
29.2 to 29.5 inclusive any other party to the Agreement in dispute with the
party so failing to comply need not comply with this clause before commencing
court proceedings relating to that dispute.
29.3 Any party to this Agreement claiming that a dispute has arisen under this
Agreement between any of the parties to this Agreement shall give written notice
to the other party or parties in dispute designating as its representative in
negotiations relating to the dispute a person with authority to settle the
dispute and each other party given written notice shall promptly give
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notice in writing to the other parties in dispute designating as its
representative in negotiations relating to the dispute a person with similar
authority.
29.4 The designated persons shall, within ten days of the last designation
required by paragraph 29.3, following whatever investigations each deems
appropriate, seek to resolve the dispute.
29.5 If the dispute is not resolved within the following ten days (or within
such further period as the representatives may agree is appropriate) the parties
in dispute shall within a further ten days (or within such further period as the
representatives may agree is appropriate) seek to agree on a process for
resolving the whole or part of the dispute through mediation and on:-
29.5.1 The procedure and timetable for any exchange of documents and other
information relating to the dispute;
29.5.2 Procedure rules and a timetable for the conduct of the mediation;
29.5.3 Whether the parties should seek the assistance of a dispute
resolution organisation.
29.6 The parties acknowledge that the purpose of any exchange of information or
documents or the making of any offer of settlement pursuant to this clause 29 is
to attempt to settle the dispute between the parties. No party may use any
information or documents obtained through the dispute resolution process
established by this clause 29 for any other purpose than an attempt to settle a
dispute between that party and other parties to this Agreement.
29.7 Compliance with the provisions of clauses 29.1 and 29.3 to 29.5 inclusive
is a condition precedent to any party commencing court proceedings as referred
to in clause 29.2.
SERVICE OF NOTICES
Service in accordance with this clause
30.1 Any notice, document or demand (called "notice") under this Agreement may
be served in accordance with this clause.
Written notice
30.2 The notice shall be in writing, signed by the party giving it or by that
party's solicitor.
Service of notice
30.3 The notice shall be served on the another party or on that party's
solicitor. Service on one of the Vendors or the Guarantors shall be deemed
service on all of the Vendors or Guarantors.
Particulars for service
30.4 Particulars for the service of notices are:-
Vendors: Eightzigbarb Pty Ltd,
Y.F.B.Investments Pty Ltd
Irene Investments Pty Ltd and Patmore Enterprises Pty. Limited
Address: 39 Queen Street Auburn, NSW 2144
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Vendors' solicitor: Esplins
Address: Level 6, 261 George Street,
SYDNEY 2000
Facsimile: (02) 9251 3090
DX: 346, SYDNEY
Purchaser: Continental Conveyor & Equipment Pty Limited
Address: 145 Bridge Street,
MUSWELLBROOK 2333
Purchaser's solicitor: Thompson Norrie
Address: 9 Church Street,
MAITLAND 2320
Facsimile: (049) 33 6399
DX: 21605, MAITLAND
Guarantors: Messrs Peter John Baird, John Robert Clack, Mark
David Elliott and Stephen James Page.
Address: As set out on page 1 to this Agreement
Guarantors' solicitor: Esplins
Address: Level 6, 261 George Street,
SYDNEY 2000
Facsimile: (02) 9251 3090
DX: 346, SYDNEY
Additional or altered address
30.5 Any party may advise another party of an additional or an altered address
for the service of notices, which is within the State of New South Wales and is
not a post office box or poste restante.
Modes of service
30.6 A notice may be served:-
30.6.1 by delivering it to the party or to the party's solicitor at the
address shown in clause 30.4 or notified under clause 30.5 (called "the party's
address") and leaving it with the party, the solicitor or some other person
accepting the notice on behalf of either of them;
30.6.2 by sending it by pre-paid post, correctly addressed, to the party's
address;
30.6.3 by transmitting it on a business day by facsimile to the party's
solicitor's facsimile receiving facility indicated in clause 30.4;
30.6.4 by delivering it to the party's solicitors through the Document
Exchange in which the solicitor has receiving facilities as indicated in clause
30.4.
Time of service
30.7 A notice is considered to have been served:-
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30.7.1 at the time of delivery;
30.7.2 on the third business day after the day on which it is posted, the
first business day being the day of posting;
30.7.3 on the business day on which the notice is received by the
recipient's facsimile receiving facility;
30.7.4 on the third business day after the day on which the notice is
delivered by the send to the Document Exchange in which the recipient has the
receiving facilities indicated in clause 30.4 and is placed in the correct box
for dispatch to the recipient's facility at that Document Exchange, the first
Business day being the day of delivery by the sender to the Document Exchange.
GUARANTEE FOR VENDORS' OBLIGATIONS
Guarantee
31.1 In consideration of the Purchaser entering into this Agreement to purchase
the Vendors' shares, the Guarantors, at the request of the Vendors, jointly and
severally agree to guarantee to the Purchaser:-
31.1.1 the performance and observance by the Vendors and each of them, of
each of the Vendors' obligations under this Agreement, before, on and after
completion of the sale;
31.1.2 the accuracy of all warranties and representations in this agreement
made jointly or severally by or on behalf of the Vendors or of persons
representing one or more of the Vendors jointly or severally either in the
Agreement or to induce the Purchaser to enter into or to complete this
Agreement;
31.1.3 the payment of any money by all or any of the Vendors to the
Purchaser, to the Company or to any third party, in accordance with this
Agreement.
Continuing guarantee
31.2 This is a continuing guarantee and is irrevocable until discharged pursuant
to the terms of this guarantee.
Guarantors' obligation to pay
31.3 In the event of any breach by one or more of the Vendors covered by this
guarantee, the Purchaser may proceed to recover the amount claimed as a debt or
as damages from any one or more of the Guarantors without having instituted
legal proceedings against one or more of the Vendors and without first
exhausting the Purchaser's remedies against the Vendors.
Further assurance
31.4.1 Principal obligations
The obligation of each Guarantor is a principal obligation and not
ancillary or collateral to any other obligation.
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31.4.2 Obligations absolute and unconditional
The obligation of each Guarantor is absolute and unconditional
and the liability of each Guarantor under this guarantee extends to and will not
be abrogated, prejudiced, affected or discharged (either in whole or in part) by
any one or more of the following:-
31.4.2.1 any modification of the liability of the Vendors under
this Agreement;
31.4.2.2 the release, amendment, variation, replacement or
discharge (either in whole or in part) of; or an agreement to release, amend,
vary, replace or discharge (either in whole or in part) the Vendors'
obligations, whether or not these matters are formalised in writing and whether
or not the Guarantors are aware of , or consents to these matters;
31.4.2.3 the granting of time, credit or any other indulgence or
concession to the Vendors, the Guarantors or any other person by the Purchaser
with or without the knowledge or consent of the Guarantors;
31.4.2.4 any compounding, compromise, release, discharge,
abandonment, assignment, transfer, waiver, exchange, relinquishment, variation
or renewal of the Vendors' obligations or other arrangements now or from time to
time in force between the Vendors and the Purchaser or any other persons, with
or without knowledge or consent of the Guarantors;
31.4.2.5 any judgement or rights which the Purchaser may have or
exercise against the Vendors, the Guarantors or any other person;
31.4.2.6 the Vendors' obligations or any part thereof, or the
Guarantors' obligations or any part thereof, being or becoming wholly or
partially illegal, void, voidable, defective, informal or unenforceable, whether
by reason of any statute (including without limitation, any statute of
limitation) or for any other reason whatever by which the liability of the
Vendors or the liability of the Guarantors would, but for this paragraph, have
been discharged or otherwise adversely affected;
31.4.2.7 any of the Guarantors being released or ceasing to be
bound by this guarantee;
31.4.2.8 the delay or failure of the Purchaser to enforce this
guarantee or the giving of any release or waiver by the Purchaser under this
guarantee or the making of any arrangement or compromise by the Purchaser with
any one or more of the Guarantors;
31.4.2.9 the Purchaser becoming a party to, or becoming bound by,
any compromise, assignment of property, scheme of arrangement, compromise of
debts or scheme of reconstruction by or relating to the Vendors or the
Guarantors or any one or more of them or the acceptance by the Purchaser of any
dividend or sum of money thereunder;
31.4.2.10 the winding up or bankruptcy of the Vendors, the
Guarantors or any one or more of them;
31.4.2.11 the liability of the Guarantors ceasing for any cause
whatever, including, without limitation, the Guarantors or any one of them being
or becoming incompetent to give this guarantee;
31.4.2.12 the death, lunacy or incapacity of any one or more of
the Guarantors;
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37
31.4.2.13 completion of the sale of shares;
31.4.2.14 the fact that the Vendors or any one of them may enter
into transactions with or incur obligations to the Purchaser without the
knowledge or consent of or notice to the Guarantors; or
31.4.2.15 any other fact, circumstance or thing whatever which,
but for this provisions, could or might operate to abrogate, prejudice, affect
or discharge (either in whole or in part) this guarantee.
DISTRIBUTORSHIP AGREEMENT
32.1 On or before completion of this Agreement the parties will cause
CONTINENTAL CONVEYOR & EQUIPMENT COMPANY L.P. a limited partnership having its
registered office at Winfield Alabama in the United States of America and PRINCE
ACE CORPORATION (Philippines) to enter into a distributorship agreement in
accordance with the draft form of Distributorship Agreement in Schedule 4
hereto.
32.2 Completion of this Agreement is conditional upon the execution of the
Distributorship Agreement referred to in clause 32.1 above, the form of which
shall have been submitted to the Vendors at least seven days prior to
completion, by each of the parties to such Deed, and on fully executed copies of
such deeds being handed over by the Vendors to the Purchaser and on completion.
33. Purchase Finance
33.1 The Purchaser is obtaining finance from an independent third party lending
institution ("the financier") up to maximum amounts as set out in clause 33.3
below, to finance its aquisition of the share capital of the Company and to
provide working capital for the Company and its subsidiaries ("financial
arrangements").
33.2 The financier shall be National Australia Bank Limited, Australia & New
Zealand Banking Group Limited, Commonwealth Bank of Australia Limited, Westpac
Banking Corporation or such other lending institution as the Vendors may approve
in writing.
33.3 This Agreement is conditional upon the Purchaser obtaining on or before
5.00pm on 22 November 1996 written advice of approval from the financier of the
financial arrangements and the terms of those arrangements as set out below:
33.3.1 Loan funds in an amount of not less than A$4,000,000 to be secured
to the financier by first registered charge over the shares to be acquired by
the Purchaser pursuant to this Agreement and;
33.3.2 Further loan funds in an amount of not less than A$5,000,000 to be
secured to the financier by first registered mortgage over the assets and
undertaking of the Company and its subsidiaries
33.3.3 the term over which such loans must be repaid shall be ten (10)
years
33.3.4 The interest rate applicable to such loans shall not exceed a fixed
rate of nine per centum (9%) per annum.
33.3.5 Approval and execution by the financier of the priority agreements
as set out in Schedules 9 and 10 hereto.
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38
33.3.6 Such other terms as shall be commercially reasonable and acceptable
to the Purchaser.
33.4 The Purchaser shall within seven (7) days of the date of this Agreement,
lodge finance applications for the loans set out above, with the financial
institutions specified in clause 33.2 above and shall furnish the particulars
reasonably required by those financial institutions for consideration of those
applications.
33.5 The Purchaser shall use its best endeavours to select and finalise the
financial arrangements with the financier as soon as practicable and use its
best endeavours to obtain approval and execution of the priority agreements in
accordance with clause 33.3.5 hereof.
33.6 In the event that the Purchaser shall not receive notice of approval of the
financial arrangements as set out in clause 33.3 above on or before 5pm on 22
November 1996, then the Purchaser shall notify the Vendors in writing served
within three (3) business days after that time:-
33.6.1 That the Purchaser has elected to waive the benefit of this clause;
or
33.6.2 That the Purchaser has elected to rescind this Agreement.
33.7 If the Purchaser elects to waive the benefit of this clause under subclause
33.6.1, completion of this Agreement shall occur within fifteen (15) business
days after the date of service of such notice of waiver on the Vendors;
33.8 If the Purchaser fails to serve the Vendor with any notification under
clause 33.6 above within the period of three (3) business days specified in that
paragraph, the Vendors may give notice in writing to the Purchaser within three
(3) business days after the expiration of that time, and before such finance
approval has been obtained, electing to rescind this Agreement, failing which
this Agreement shall become binding and unconditional.
33.9 If the Purchaser elects to rescind this Agreement under clause 33.6.2, or
if the Vendors elect to rescind this Agreement under clause 33.8, the provisions
of clause 27 of this Agreement shall apply in respect of such rescission.
33.10 If this Agreement shall be rescinded under clause 33.6.2 or under clause
33.8, then the Purchaser agrees that it will hold for and on behalf of the
Vendors as hereinafter specified, the benefit of any contracts tendered or
entered into jointly by the parties prior to the date of such rescission, unless
the other party to such contract or contracts shall otherwise direct. This
clause 33.10 shall be interpreted so as to allow each of the Purchaser on the
one hand and the Vendors on the other hand (operating under the auspices of any
of ACE, BCE or ACS) to receive the revenues from such contracts based upon the
proportion of services on equipment each contributes to the total customer
order.
-38-
39
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the date
first within written.
THE COMMON SEAL of )
EIGHTZIGBARB PTY LIMITED )
ACN 075 261 497 was hereunto )
affixed by authority of the ) /s/ Peter J. Baird
directors in the presence of )
a Director whose signature )
appears opposite and: )
Secretary
THE COMMON SEAL of )
Y.F.B. INVESTMENTS PTY )
LIMITED ACN 075 261 488 )
was hereunto affixed by )
authority of the directors ) /s/ John Clack
in the presence of a Director )
whose signature appears )
opposite and: )
Secretary
THE COMMON SEAL of )
IRENE INVESTMENTS PTY )
LIMITED ACN 075 261 479 )
was hereunto affixed by )
authority of the directors ) /s/ Mark Elliott
in the presence of a Director )
whose signature appears )
opposite and: )
Secretary
THE COMMON SEAL of )
PATMORE ENTERPRISE PTY )
LIMITED ACN 075 261 470 was )
hereunto affixed by authority of ) /s/ Stephen Page
the Directors in the presence of a )
Director whose signature appears )
opposite and: )
Secretary
-39-
40
SIGNED SEALED AND )
DELIVERED by the said )
PETER JOHN BAIRD ) /s/ Peter J. Baird
in the presence of: )
SIGNED SEALED AND )
DELIVERED by the said )
MARK DAVID ELLIOTT ) /s/ Mark Elliott
in the presence of: )
SIGNED SEALED AND )
DELIVERED by the said )
JOHN ROBERT CLACK ) /s/ John Clack
in the presence of: )
SIGNED SEALED AND )
DELIVERED by the said )
STEPHEN JAMES PAGE ) /s/ Stephen Page
in the presence of: )
THE COMMON SEAL of )
CONTINENTAL CONVEYOR & )
EQUIPMENT PTY LIMITED )
ACN 059 870 058 was hereunto )
affixed by authority of the ) /s/ G. Williams
directors in the presence of )
a Director whose signature )
appears opposite and: )
Secretary
-40-
41
THIS SECOND SUPPLEMENTARY DEED is made the 6th day of December one thousand
nine hundred and ninety six
BETWEEN
EIGHTZIGBARB PTY LIMITED ACN 075 261 497 a duly incorporated company having its
registered office at C/- 39 Queen Street, Auburn in the State of New South Wales
2144, Y.F.B. INVESTMENTS PTY LIMITED ACN 075 261 488 a duly incorporated company
and having its registered office at C/- 39 Queen Street, Auburn, 2144 in the
said State and IRENE INVESTMENTS PTY LIMITED ACN 075 261 479 a duly incorporated
company having its registered office at C/- 39 Queen Street, Auburn, 2144 in the
said State (called "Vendors") of the first part
AND
PETER JOHN BAIRD of 133 Australia Avenue, Umina, 2257, in the said State, MARK
DAVID ELLIOTT of 65 Taylor Street, Woy Woy, 2256, in the said State, JOHN ROBERT
CLACK of 161 Australia Avenue, Umina, 2257 in the said State, STEPHEN JAMES PAGE
of 28 Dumfries Court, Eaglemount Heights, Mackay, 4740, in the State of
Queensland and PATMORE ENTERPRISE PTY LIMITED ACN 075 261 470 a duly
incorporated company having its registered office at C/- 39 Queen Street, Auburn
in the State of New South Wales (called "Guarantors") of the second part
AND
CONTINENTAL CONVEYOR & EQUIPMENT PTY LIMITED ACN 059 870 058 a duly incorporated
company having its registered office at 145 Bridge Street, Muswellbrook in the
said State (called "Purchaser") of the third part
RECITALS
A. By Deed made on 8 November 1996 between the same parties as are the parties
to this Deed ("the Share Sale Agreement") the parties of the first part as
Vendors at the request of the parties of the second part as Guarantors agreed
with the party of the third part as Purchaser for the sale and purchase of
certain shares in BCE Holdings Pty Limited ACN 003 525 988 ("the Company") and
otherwise on the terms and conditions set out in the Share Sale Agreement.
B. By a Supplementary Deed made between the parties on 22 November 1996 ("the
Supplementary Deed")certain provisions of the Share Sale Agreement were varied.
C. The parties have subsequently agreed that the time and date fixed by clause
33.6 of the Share Sale Agreement as subsequently varied by the Supplementary
Deed shall be further amended as hereafter appears.
D. The parties have further subsequently agreed that the date on which
completion of the Share Sale Agreement is to be effected as a non-essential
provision as contained in clause 21.1 of the Share Sale Agreement as amended by
Supplementary Deed shall be further amended as hereafter appears.
42
E. The parties have further subsequently agreed as to other amendments as
hereinafter appears.
OPERATIVE PART
Interpretation provisions
1. Words and expressions contained in this Deed shall have the same meaning as
ascribed to those words and expressions as set out in clause 1 of the Share Sale
Agreement.
2. This Second Supplementary Deed is supplemental to the Share Sale Agreement
and to the Supplementary Deed both of which are to be read and interpreted as
amended by the provisions of this Deed.
3. Clause 33.1 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed as follows:-
3.1 By deleting from clause 33.1 "an independent third party lending
institution" and inserting in its place "one or more of the lending institutions
referred to in clause 33.2".
4. Clause 33.2 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed as follows:-
4.1 By adding in the third line after "Westpac Banking Corporation" the
words "Bank One (United States)".
5. Clause 33.3 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in the place of the terms of clause 33.3 in the Share Sale Agreement and
the Supplementary Deed:-
"33.3 This Agreement is conditional upon the Purchaser obtaining on or
before 5.00pm on 8 December 1996 written advice of approval from the financier
of the financial arrangements and the terms of those arrangements as set out
below:-
33.3.1 Loan funds of an amount of not less than A$4,000,000 to be
secured up to a maximum of A$4,000,000 to the financier by first registered
charge over the shares to be acquired by the Purchaser pursuant to this
Agreement;
33.3.2 Further loan funds in an amount of not less than A$5,000,000
to be secured up to a maximum of A$5,000,000 to the financier by first
registered mortgage over the assets and undertaking of the Company and its
subsidiaries;
33.3.3 The term over which such loans must be repaid shall be ten
(10) years;
-2-
43
33.3.4 The interest rate applicable to such loans shall not exceed a
fixed rate of nine per centum (9%) per annum;
33.3.5 Approval and execution by the financier of the priority
agreements as set out in Schedules 9 and 10 hereto; and
33.3.6 Such other terms as shall be commercially reasonable and
acceptable to the Purchaser."
6. Clause 33.6 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in place of the terms of Clause 33.6 in the Share Sale Agreement and the
Supplementary Deed:-
"33.6 In the event that the Purchaser shall not receive notice of approval
of the financial arrangements as set out in clause 33.3 above on or before 5pm
on 8 December 1996, then the Purchaser shall notify the Vendors in writing
served within three (3) business days after that time:-
33.6.1 That the Purchaser has elected to waive the benefit of this
clause; or
33.6.2 That the Purchaser has elected to rescind this Agreement."
7. The Share Sale Agreement is hereby amended and shall have effect between the
parties on or from the date of this Deed by the addition to the Share Sale
Agreement of the following clauses:
33.12.1 Notwithstanding the provisions of clause 21.6 or the 5th Schedule
to the Share Sale Agreement or any other provision of the Share Sale Agreement
the Vendors agree that the finance facilities particularised in Table 4 to
Schedule 5 to the Share Sale Agreement and the corporate securities and the
personal guarantees supporting those finance facilities will not be discharged
and released on completion but will remain in place notwithstanding such
completion. The Purchaser covenants that the Purchaser and the Company and its
subsidiaries shall cause those finance facilities to be repaid and the
securities and the personal guarantees to be discharged and released within ten
(10) business days after completion. The Vendors consent to the foregoing
subject only to the receipt of the indemnity referred to in clause 33.12.2
hereof.
33.12.2 Prior to completion the Purchaser will procure the indemnity of
Continental Conveyor & Equipment Company L.P. in favour of the Guarantors in a
form reasonably acceptable to the Guarantors indemnifying the Guarantors from
any liability howsoever arising in connection with the finance facilities
referred to in Clause 33.12.1 hereof.
33.12.3 This clause 33.12 shall not merge on completion and shall enure
thereafter for the benefit of the Guarantors."
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44
8. In all other respects the parties hereby confirm the provisions of the Share
Sale Agreement.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the date
first within written.
THE COMMON SEAL of )
EIGHTZIGBARB PTY LIMITED )
ACN 075 261 497 was hereunto affixed )
by authority of its director, )
PETER JOHN BAIRD whose signature ) /s/ Peter J. Baird
appears opposite the only Director )
and the only Secretary of the Company )
and who attests the affixing of the )
Common Seal in the capacity of sole )
director and sole secretary of the )
Company )
Secretary
THE COMMON SEAL of )
Y.F.B. INVESTMENTS PTY LIMITED )
ACN 075 261 488 was hereunto affixed )
by authority of its director, )
JOHN ROBERT CLACK whose ) /s/ John Clack
signature appears opposite the only )
Director and the only Secretary of )
the Company and who attests the affixing )
of the Common Seal in the capacity )
of sole director and sole secretary )
of the Company )
Secretary
-4-
45
THE COMMON SEAL of )
IRENE INVESTMENTS PTY LIMITED )
ACN 075 261 479 was hereunto affixed )
by authority its director, )
MARK DAVID ELLIOTT whose ) /s/ Mark Elliott
signature appears opposite the only )
Director and the only Secretary of )
the Company and who attests the affixing )
of the Common Seal in the capacity )
of sole director and sole secretary )
of the Company )
Secretary
THE COMMON SEAL of )
PATMORE ENTERPRISE PTY )
LIMITED ACN 075 261 470 was )
hereunto affixed by authority of its )
director, STEPHEN JAMES PAGE ) /s/ Stephen Page
whose signature appears opposite the )
only Director and the only Secretary )
of the Company and who attests the )
affixing of the Common Seal in the )
capacity of sole director and sole )
secretary of the Company )
Secretary
SIGNED SEALED AND DELIVERED )
by the said PETER JOHN BAIRD ) /s/ Peter J. Baird
in the presence of: )
SIGNED SEALED AND DELIVERED )
by the said MARK DAVID ELLIOTT ) /s/ Mark Elliott
in the presence of: )
SIGNED SEALED AND DELIVERED )
by the said JOHN ROBERT CLACK ) /s/ John Clack
in the presence of: )
-5-
46
SIGNED SEALED AND DELIVERED )
by the said STEPHEN JAMES PAGE ) /s/ Stephen Page
in the presence of: )
THE COMMON SEAL of )
CONTINENTAL CONVEYOR & )
EQUIPMENT PTY LIMITED )
ACN 059 870 058 was hereunto affixed ) /s/ G. Williams
by authority of the directors in the )
presence of a Director whose signature )
appears opposite and: )
Secretary
-6-
47
THIS SUPPLEMENTARY DEED is made the 22nd day of November one thousand nine
hundred and ninety six
BETWEEN
EIGHTZIGBARB PTY LIMITED ACN 075 261 497 a duly incorporated company having its
registered office at C/- 39 Queen Street, Auburn in the State of New South Wales
2144, Y.F.B. INVESTMENTS PTY LIMITED ACN 075 261 488 a duly incorporated company
and having its registered office at C/- 39 Queen Street, Auburn, 2144 in the
said State and IRENE INVESTMENTS PTY LIMITED ACN 075 261 479 a duly incorporated
company having its registered office at C/- 39 Queen Street, Auburn, 2144 in the
said State (called "Vendors") of the first part
AND
PETER JOHN BAIRD of 133 Australia Avenue, Umina, 2257, in the said State, MARK
DAVID ELLIOTT of 65 Taylor Street, Woy Woy, 2256, in the said State, JOHN ROBERT
CLACK of 161 Australia Avenue, Umina, 2257 in the said State, STEPHEN JAMES PAGE
of 28 Dumfries Court, Eaglemount Heights, Mackay, 4740, in the State of
Queensland and PATMORE ENTERPRISE PTY LIMITED ACN 075 261 470 a duly
incorporated company having its registered office at C/- 39 Queen Street, Auburn
in the State of New South Wales (called "Guarantors") of the second part
AND
CONTINENTAL CONVEYOR & EQUIPMENT PTY LIMITED ACN 059 870 058 a duly incorporated
company having its registered office at 145 Bridge Street, Muswellbrook in the
said State (called "Purchaser") of the third part
RECITALS
A. By Deed made on 8 November 1996 between the same parties as are the parties
to this Deed ("the Share Sale Agreement") whereby the parties of the first part
as Vendors at the request of the parties of the second part as Guarantors agreed
with the party of the third part as Purchaser for the sale and purchase of
certain shares in BCE Holdings Pty Limited ACN 003 525 988 ("the Company") and
otherwise on the terms and conditions set out in the Share Sale Agreement.
B. By its clause 33, the Share Sale Agreement was conditional upon the Purchaser
obtaining written advice of approval of financial arrangements as is more
particularly in that clause set out on or before 5pm on 22 November 1996.
C. The parties have subsequently agreed that the period fixed by clause 33 of
the Share Sale Agreement shall be extended as herein set out.
D. Clause 21 of the Share Sale Agreement provided for the fixing of a date of
completion of the Share Sale Agreement.
E. The parties have otherwise agreed as to the date on which completion of the
Share Sale Agreement shall be effected as a non-essential provision of that
Agreement as herein set out.
48
F. The Vendors and Patmore have entered into this Deed in order to verify and
confirm execution of the Share Sale Agreement in compliance with the provisions
of Section 240 (7B)(c) of the Corporations Law.
G. The parties have agreed to clarify of clause 10.1.4.2 of the Share Sale
Agreement as herein set out.
OPERATIVE PART
Interpretation provisions
1. Words and expressions contained in this Deed shall have the same meaning as
ascribed to those words and expressions as set out in clause 1 of the Share Sale
Agreement.
2. This Deed is supplemental to the Share Sale Agreement which is to be read and
interpreted as amended by the provisions of this Deed.
3. Clause 33.3 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in the place of the terms of clause 33.3 in the Share Sale Agreement:-
"33.3 This Agreement is conditional upon the Purchaser obtaining on or
before 5.00pm on 2 December 1996 written advice of approval from the financier
of the financial arrangements and the terms of those arrangements as set out
below:-
33.3.1 Loan funds in an amount of not less than A$4,000,000 to be secured
up to a maximum of $4,000.000.00 to the financier by first registered charge
over the shares to be acquired by the Purchaser pursuant to this Agreement and;
33.3.2 Further loan funds in an amount of not less than A$5,000,000 to be
secured up to a maximum of $5,000,000.00 to the financier by first registered
mortgage over the assets and undertaking of the Company and its subsidiaries.
33.3.3 the term over which such loans must be repaid shall be ten (10)
years.
33.3.4 The interest rate applicable to such loans shall not exceed a fixed
rate of nine per centum (9%) per annum.
33.3.5 Approval and execution by the financier of the priority agreements
as set out in Schedules 9 and 10 hereto.
33.3.6 Such other terms as shall be commercially reasonable and acceptable
to the Purchaser."
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49
4. Clause 33.6 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in place of the terms of Clause 33.6 in the Share Sale Agreement:-
"33.6 In the event that the Purchaser shall not receive notice of approval
of the financial arrangements as set out in clause 33.3 above on or before 5pm
on 2 December 1996, then the Purchaser shall notify the Vendors in writing
served within three (3) business days after that time:-
33.6.1 That the Purchaser has elected to waive the benefit of this
clause; or
33.6.2 That the Purchaser has elected to rescind this Agreement."
5. Clause 21.1 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in place of the terms of Clause 21.1 in the Share Sale Agreement:-
"21.1 Completion of this agreement shall occur not later than 5 pm
on 13 December 1996. In respect of the time hereby fixed for completion, time is
not of the essence of this Agreement. The due diligence shall be completed on or
prior to 2 December 1996 or such later date as to which the parties may agree in
writing. If completion does not occur on that date, either party may on or after
the next business day serve on the other party a notice requiring completion to
occur on a business day which is not less than ten (10) business days after the
date when notice is received by the recipient of the notice, and service of such
notice renders such date specified in that notice an essential time for
completion. In the event that the due diligence is not completed by 2 December
1996, then the Vendors may rescind this Agreement by notice in writing to the
Purchaser."
6. Clause 10.1.4.2 of the Share Sale Agreement is hereby amended and shall have
effect between the parties on or from the date of this Deed in the following
terms in place of the terms of clause 10.1.4.2 in the Share Sale Agreement:-
"10.1.4.2 satisfaction of the requirements of Gosford City Council in
relation to encroachment (approx. 5 metres) by improvements on the Somersby
property on to Somersby Falls Road and in relation to the issue of a Certificate
under Section 172 of the Local Government Act 1993 in respect of that property;"
7. In all other respects the parties hereby confirm the provisions of the Share
Sale Agreement.
8. Each of the Vendors and Patmore Enterprise Pty Limited hereby confirm and
verify the execution of the Share Sale Agreement on the part of each of the
Vendors and Patmore Enterprise Pty Limited as a deed.
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50
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the date
first within written.
THE COMMON SEAL of )
EIGHTZIGBARB PTY LIMITED )
ACN 075 261 497 was hereunto affixed )
by authority of its director, )
PETER JOHN BAIRD whose signature ) /s/ Peter J. Baird
appears opposite the only Director )
and the only Secretary of the Company )
and who attests the affixing of the )
Common Seal in the capacity of sole )
director and sole secretary of the )
Company )
Secretary
THE COMMON SEAL of )
Y.F.B. INVESTMENTS PTY LIMITED )
ACN 075 261 488 was hereunto affixed )
by authority of its director, )
JOHN ROBERT CLACK whose ) /s/ John Clack
signature appears opposite the only )
Director and the only Secretary of )
the Company and who attests the affixing )
of the Common Seal in the capacity )
of sole director and sole secretary )
of the Company )
Secretary
-4-
51
THE COMMON SEAL of )
IRENE INVESTMENTS PTY LIMITED )
ACN 075 261 479 was hereunto affixed )
by authority its director, )
MARK DAVID ELLIOTT whose ) /s/ Mark Elliott
signature appears opposite the only )
Director and the only Secretary of )
the Company and who attests the affixing )
of the Common Seal in the capacity )
of sole director and sole secretary )
of the Company )
Secretary
THE COMMON SEAL of )
PATMORE ENTERPRISE PTY )
LIMITED ACN 075 261 470 was )
hereunto affixed by authority of its )
director, STEPHEN JAMES PAGE ) /s/ Stephen Page
whose signature appears opposite the )
only Director and the only Secretary )
of the Company and who attests the )
affixing of the Common Seal in the )
capacity of sole director and sole )
secretary of the Company )
Secretary
SIGNED SEALED AND DELIVERED )
by the said PETER JOHN BAIRD ) /s/ Peter J. Baird
in the presence of: )
SIGNED SEALED AND DELIVERED )
by the said MARK DAVID ELLIOTT ) /s/ Mark Elliott
in the presence of: )
SIGNED SEALED AND DELIVERED )
by the said JOHN ROBERT CLACK ) /s/ John Clack
in the presence of: )
-5-
52
SIGNED SEALED AND DELIVERED )
by the said STEPHEN JAMES PAGE ) /s/ Stephen Page
in the presence of: )
THE COMMON SEAL of )
CONTINENTAL CONVEYOR & )
EQUIPMENT PTY LIMITED )
ACN 059 870 058 was hereunto affixed ) /s/ G. Williams
by authority of the directors in the )
presence of a Director whose signature )
appears opposite and: )
Secretary
-6-