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BLUE STAR GROUP PTY LIMITED
ACN 074 868 901
BLUE STAR CORPORATE PTY LIMITED
ACN 074 810 905
BOOKLAND PTY LIMITED
ACN 008 736 801
AUSTRALIAN TONER CARTRIDGE CO. PTY LIMITED
ACN 007 345 084
VENDORS
NATIONAL OFFICE PRODUCTS LIMITED
ACN 064 777 224
PURCHASER
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AGREEMENT FOR SALE
AND PURCHASE OF BUSINESS ASSETS
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Solicitors to Blue Star Group Pty Ltd Solicitors to Boise Cascade Office
Russell McVeagh Products Corporation
Auckland Norton Gledhill
Melbourne
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CONTENTS
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INTRODUCTION.................................................................1
1. INTERPRETATION..........................................................2
2. SALE AND PURCHASE OF ASSETS.............................................9
3. PURCHASE PRICE..........................................................9
4. PAYMENT AND ASSUMPTION OF LIABILITIES..................................10
5. PRE-COMPLETION OBLIGATIONS.............................................11
6. RISK...................................................................14
7. COMPLETION OBLIGATIONS.................................................14
8. POST-COMPLETION PROVISIONS.............................................17
9. WARRANTIES AND RIGHTS OF PURCHASER.....................................19
10. EMPLOYEES..............................................................20
11. MISCELLANEOUS PROVISIONS...............................................21
SIGNATURES..................................................................23
FIRST SCHEDULE..............................................................25
ACCOUNTS*........................................................25
SECOND SCHEDULE.............................................................29
BUSINESS PREMISES*...............................................29
THIRD SCHEDULE..............................................................30
PLANT AND EQUIPMENT*.............................................30
FOURTH SCHEDULE.............................................................31
INTELLECTUAL PROPERTY RIGHTS*....................................31
FIFTH SCHEDULE..............................................................32
WARRANTIES*......................................................32
SIXTH SCHEDULE..............................................................45
ALLOCATION OF PURCHASE PRICE*....................................45
SEVENTH SCHEDULE............................................................46
DISCLOSURES*.....................................................46
EIGHTH SCHEDULE.............................................................52
DOMAIN NAMES*....................................................52
NINTH SCHEDULE..............................................................53
[BLANK]* (no document included)..................................53
TENTH SCHEDULE..............................................................54
EMPLOYEES*.......................................................54
SUPERANNUATION SCHEME TRUST DEED*................................53
TWELFTH SCHEDULE............................................................55
MATERIAL CONTRACTS*..............................................55
THIRTEENTH SCHEDULE.........................................................57
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MATERIAL ADVERSE EVENTS*.........................................57
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* Omitted - will furnish to the Commission upon request.
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AGREEMENT dated 2000
PARTIES
BLUE STAR GROUP PTY LIMITED ACN 074 868 901 ("BSG"),
BLUE STAR CORPORATE PTY LIMITED ACN 074 810 905 ("BSC"),
BOOKLAND PTY LIMITED ACN 008 736 801 ("BPL"),
AUSTRALIAN TONER CARTRIDGE CO. PTY LIMITED ACN 007 345 084 ("ATC")
("VENDORS")
NATIONAL OFFICE PRODUCTS LIMITED ACN 064 777 224 ("PURCHASER")
INTRODUCTION
A. The Vendors carry on the following businesses:
(a) BSG and BSC operate under the trading names of:
(i) Blue Star Office which is registered as a
business name in Victoria (1354830G), New South
Wales (U6854114), Western Australia (0220677Y),
South Australia (0421028J), Tasmania (114676B),
Australian Capital Territory (F00087039),
Northern Territory (67976B) and Queensland
(BN6626890) and Goodman Cannington Prince which
is registered as a business name in Victoria
(1309681T), and which are suppliers of
commercial stationery and office products on
contract or to corporate or commercial
customers;
(ii) State Supply (which is registered as a business
name in Victoria (1121358S) and the Australian
Capital Territory (F00090494) and SPS Supply
which is registered as a business name in
Tasmania (110608B), and which are predominantly
suppliers of commercial stationery and office
products to the government and education sectors
in Victoria and Tasmania respectively;
(iii) Blue Star Education which is registered as a
business name in Victoria (1353888H), New South
Wales (U3686222), South Australia (0420759K),
Western Australia (0220388M), Queensland
(BN6682820), Australian Capital Territory
(F00086980), the Northern Territory (67873B) and
Tasmania (112630B), which is a supplier of
educational books and supplies predominantly in
Western Australia;
(iv) Compact Computer Supplies which is registered as
a business name in New South Wales (U4229937),
and which is a specialist reseller of IT
supplies and remanufacturer and recycler of
toner cartridges.
(b) BPL carries on business under its corporate name and is a
supplier of educational books and supplies in Western
Australia;
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2
(c) ATC carries on business under its corporate name and is a
specialist reseller of IT supplies and remanufacturer and a
recycler of toner cartridges.
B. Each Vendor has agreed to sell and the Purchaser has agreed to
purchase certain assets of each Vendor's business, and assume certain
liabilities relating to those businesses, on the terms and conditions
contained in this agreement.
AGREEMENT
1. INTERPRETATION
1.1 DEFINITIONS: In this agreement, unless the context otherwise
requires:
"ACCOUNTS" means the financial statements of the Vendors relating to
the Businesses for the year ended on the Balance Date, a copy of
which is annexed as the first schedule.
"ACCRUALS" means, in respect of each Vendor, liabilities of the
Vendor incurred exclusively in the ordinary course of conducting that
Vendor's Business (including, without limitation, liabilities to
other business divisions of the Vendor but only to the extent they
are trade liabilities incurred on arms length commercial terms) which
have not fallen due for payment on or before Completion, but shall
not include any of the amounts included under or any of the
indebtedness or liability referred to in paragraphs (a) and (b) of
the definition of "Assumed Liabilities".
"ADVANCE RECEIPTS" means, in respect of each Vendor, payments
received by the Vendor to the extent they relate to or are in respect
of goods or services supplied or to be supplied by that Vendor's
Business after the Completion Date and all other payments received by
the Vendor in respect of the Vendor's Business to the extent that the
burden resulting from such receipt is borne or is to be borne by the
Business after the Completion Date.
"AGREED RATE" in relation to any amount payable under this agreement
means the aggregate of:
(a) the average rate as displayed on the Reuters Monitor Screen
(in Auckland, New Zealand) page BKBM (or any successor page
displaying substantially the same information) under the
heading "FRA" for bank accepted bills having a term of
three months, at or about 10.45am (New Zealand time) on the
day on which interest commences to accrue in respect of
that amount; and
(b) 3%.
"ASSETS" means in respect of each Vendor
(a) the Goodwill;
(b) the Plant and Equipment;
(c) the Vehicles;
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3
(d) the Stock;
(e) the Book Debts;
(f) the Prepayments;
(g) the Other Receivables; and
(h) the Intellectual Property Rights;
of that Vendor.
"ASSUMED LIABILITIES" means, in respect of each Vendor:
(a) all amounts owing by that Vendor to creditors of that
Vendor's Business (including, without limitation, amounts
owing to other business divisions of that Vendor but only
to the extent they are incurred on arms length commercial
terms) in respect of goods or services supplied or provided
to that Vendor on credit up to Completion exclusively in
the ordinary course of conducting its Business but does not
include:
(i) any indebtedness or liability relating to
Taxation; or
(ii) any indebtedness or liability relating to
borrowings or any other financial accommodation
or any other direct or indirect (including
contingent) obligation relating thereto (but
excluding arrangements relating to consignment
stock and arrangements relating to Leased
Plant); or
(iii) any other indebtedness or liability which is not
provided for in the Completion Balance Sheet;
(b) the amount of accrued and accruing holiday pay, long
service leave and other entitlements at Completion in
respect of employees of that Vendor engaged in that
Vendor's Business who agree to transfer their employment to
the Purchaser;
(c) the amount of Accruals;
(d) the amount of Advance Receipts.
"AUSTRALIAN GAAP" means accounting standards, principles and
practices which are generally accepted in Australia (including the
Australian Accounting Concepts, Australian Accounting Standards,
Approved Accounting Standards and all other standards acceptable to
the Australian Accounting Research Foundation which are operative as
at the date of this agreement).
"AUTHORITY" means and includes every minister, department of state,
government authority, regional council, territorial authority or
other statutory authority having jurisdiction or authority to perform
or exercise functions or powers under or pursuant to any statute.
"BALANCE DATE" means 29 April 2000.
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"BOOK DEBTS" means, in respect of each Vendor, all amounts due to
that Vendor from debtors of that Vendor's Business at the Completion
Date in respect of goods or services supplied or provided by that
Vendor on credit up to the Completion Date exclusively in the
ordinary course of conducting its Business.
"BUSINESS" means, in respect of each Vendor, the business referred to
in paragraph A of the Introduction that is carried on by that Vendor.
"BUSINESS CONTRACTS" means, in respect of each Vendor, contracts and
other arrangements entered into by that Vendor before the Completion
Date exclusively in the ordinary course of conducting that Vendor's
Business (including contracts or arrangements relating to the
Business Premises and the Leased Plant of that Vendor) but not
including the Paperwealth Sale Agreement, the Paperwealth Supply
Agreement, contracts of employment or contracts of insurance.
"BUSINESS DAY" means a day (other than a Saturday, Sunday or public
holiday) on which registered banks are open for business in Melbourne
and Auckland.
"BUSINESS NAMES" means Canberra Wholesale Stationers which is
registered in the Australian Capital Territory (F00082614) United
Stationers which is registered as a business name in Queensland
(BN 6213893), Hoger Office Supplies which is registered as a business
name in South Australia (0314436T), DAC Stationery which is
registered as a business name in Victoria (B1405700x), Officemaster
Stationery which is registered as a business name in Queensland
(BN 6944024), Officemaster which is registered as a business name in
Queensland (BN 2501788), ATC IT Supplies which is registered as a
business name in Victoria (1338224L), New South Wales (U2121341),
Queensland (BN6580890), Australian Capital Territory (F00086030),
South Australia (0417472W), Toner Australia which is registered as a
business name in New South Wales (U4815825), and, in respect of each
Vendor, the names (including corporate names) referred to in
paragraph A of the Introduction under which that Vendor carries on
its Business, other than the names Blue Star Office and Blue Star
Education which are to be licensed to the Purchaser pursuant to
section 11 of the Master Sale and Purchase Agreement.
"BUSINESS PREMISES" means, in respect of each Vendor, the premises
specified in the second schedule as relating to that Vendor.
"BUSINESS RECORDS" means, in respect of each Vendor, all records of,
and information relating to or for operating and conducting, the
Business of that Vendor including (but without limitation)
agreements, deeds and other documents, books and records and
information of, or in connection with, transactions, manufacture and
supply of goods or provision of, services, return of goods, stock
ledgers, customer and supplier lists, accounts, quotations, asset
registers, staff and wages records, systems management documentation,
correspondence, systems controls and procedures, real property and
intellectual property records, environmental studies, reports and
records and statutory records relating to the Business which that
Vendor is required to maintain, together with all media containing
any such records or information, other than such records or
information which relate generally to that Vendor and not exclusively
to its Business.
"COMPLETION" means completion of the sale and purchase of the Assets
in accordance with section 7.
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5
"COMPLETION BALANCE SHEET" in relation to the Businesses, has the
meaning given to it in the Master Sale and Purchase Agreement.
"COMPLETION DATE" means the later to occur of:
(a) 29 September 2000; and
(b) the last day of the month following the fifteenth Business
Day after the satisfaction of the last of the conditions in
section 7 of the Master Sale and Purchase Agreement.
"CONTAMINANT" means a substance or effect which may make a place or
its Environment:
(a) unsafe for a person or animal to occupy;
(b) less able to support plant life; or
(c) otherwise environmentally degraded.
"DEFAULT RATE" means the aggregate of 2% per annum and the Agreed
Rate.
"DISCLOSURE SCHEDULE" means the seventh schedule which details the
various disclosures made by the Vendors.
"DOMAIN NAMES" means, in respect of each Vendor, the domain names and
websites specified in the eighth schedule as relating to that Vendor.
"ENVIRONMENTAL LAW" means any law or regulation relating or
pertaining to the Environment or the health or safety of the public
or workers.
"ENVIRONMENT" means the environment or surroundings including
(without limitation) air (including, without limitation, air within
buildings or natural or man-made structures, whether above or below
ground), water (including, without limitation, territorial, coastal
and inland waters and natural water and drains and sewers) and land
(including, without limitation, sea bed or river bed under any water
as described above, surface land and sub-surface land).
"ESCROW AGENT" has the meaning set out in clause 5.1 of the Master
Sale and Purchase Agreement.
"ESCROW FUND" means $2,300,000.
"GAAP" has the same meaning as in the Master Sale and Purchase
Agreement.
"GOODWILL" means, in respect of each Vendor, the goodwill and trading
reputation of that Vendor's Business at the date of this Agreement
and at the Completion Date and the benefit of and all that Vendor's
right title and interest in and to, and rights and benefits under:
(a) the relevant Business Contracts;
(b) the relevant Domain Names and Business Names;
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6
(c) all relevant licensing arrangements for the manufacture,
distribution or marketing of goods or provision of services
used exclusively in that Vendor's Business at the date of
this Agreement and at the Completion Date;
(d) the relevant Business Records;
(e) all customer and supplier relationships with that Vendor's
Business at the date of this Agreement and at the
Completion Date;
(f) the relevant Licences;
(g) all rights (including, without limitation, covenants
relating to restraint of trade and warranties) under
contracts entered into by the relevant Vendor, or otherwise
vested in the relevant Vendor, in respect of the purchase
of businesses or business assets at the date of this
Agreement and at the Completion Date.
"GST LAW" has the meaning given to that term in A New Tax System
(Goods and Services Tax) Act 1999, or, if that Act does not exist for
any reason means any Act imposing or relating to the imposition or
administration of a goods and services tax in Australia and any
regulation made under that Act.
"INTELLECTUAL PROPERTY RIGHTS" means, in respect of each Vendor, the
registered trade marks, trade mark applications, trade names, brands,
logos, formulae, techniques, know-how, trade secrets, specifications,
designs, patents, patent applications, copyright, software programs
and other intellectual property rights owned or used by the Vendor
exclusively in its Business at the date of this Agreement and at the
Completion Date including, without limitation, the intellectual
property rights specified in the fourth schedule as relating to that
Vendor.
"LEASED PLANT" means, in respect of each Vendor, the plant and
equipment leased by that Vendor under a Material Contract.
"LICENCES" means, in respect of each Vendor, the licences, approvals,
permits and authorisations issued by any Authority as relating to
that Vendor.
"MASTER SALE AND PURCHASE AGREEMENT" means the master sale and
purchase agreement entered into on or about the date of this
agreement between the Vendors, the Purchaser and certain other
parties containing various provisions relating to this agreement and
the Other Sale and Purchase Agreements.
"MATERIAL ADVERSE EVENT" means any of the events listed in the
thirteenth schedule.
"MATERIAL CONTRACTS" means the contracts listed in the twelfth
schedule.
"MATERIAL REGISTRABLE LEASES" means such of the Material Contracts
that are registered or registrable property leases.
"OTHER RECEIVABLES" means, in respect of each Vendor, amounts (other
than Book Debts and Prepayments) owing or to become owing to that
Vendor at the Completion Date exclusively in the ordinary course of
conducting its Business.
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7
"OTHER SALE AND PURCHASE AGREEMENTS" means the sale and purchase
agreements entered into on or about the date of this agreement
between:
(a) Blue Star Group Limited and the Purchaser in relation
to the shares of New Zealand Office Products Limited and
Croxley Stationery Limited; and
(b) Blue Star Group Pty Limited and the Purchaser in relation
to the shares of Filing Efficiency Pty Limited.
"PAPERWEALTH SALE AGREEMENT" means the agreement dated 29 May 2000
between Blue Star Group Pty Limited and Spicers Paper Limited
relating to the sale of shares in Paperwealth Pty Limited
(ACN 000125931).
"PAPERWEALTH SUPPLY AGREEMENT" means the agreement dated 29 May 2000
between Spicers Paper Limited as supplier and the Vendors (other than
Australian Toner Cartridge Co. Pty Limited) as purchasers.
"PLANT AND EQUIPMENT" means, in respect of each Vendor, the items
(other than Vehicles) specified in the third schedule as relating to
that Vendor.
"PREPAYMENTS" means, in respect of each Vendor, the goods, services,
rights and benefits arising from any payments made by that Vendor
before the Completion Date exclusively in the ordinary course of
conducting its Business in respect of:
(a) goods or services to be supplied or provided to that Vendor
exclusively in relation to its Business, where such goods
or services have not been supplied or provided as at the
Completion Date; or
(b) any other recurring expenditure, whether imposed by
contract, law or otherwise, exclusively referable to that
Vendor's Business and to a period after the Completion
Date,
to the extent that the benefits resulting from the payment will be
received by the Purchaser after the Completion Date.
"PURCHASE PRICE" means the purchase price payable by the Purchaser
for the Assets specified in clause 3.1.
"REMEDIAL WORK" means the removing, remedying, cleaning-up, abating,
containing or ameliorating on a temporary or permanent basis the
presence or effect of hazardous substances in the Environment to the
standards approved by competent authorities to avoid the occurrence
or recurrence of any liability under any Environmental Laws.
"RELATED COMPANY" means, in relation to a party, a company which is a
related body corporate as defined in the Australian Corporations Law.
"SPICERS" means Spicers Paper Limited (ACN 007 228 113), as party
to the Paperwealth Sale Agreement and the Paperwealth Supply
Agreement.
"STOCK" means, in respect of each Vendor, the raw materials,
consumables, stores, promotional and packaging materials, components,
work in progress and finished goods
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owned by that Vendor and used exclusively by that Vendor in carrying
on its Business and which are held by or on behalf of that Vendor at
its Business Premises or elsewhere, or in transit to that Vendor, at
the Completion Date.
"SUBSTANCE" includes (without limitation) any solid, liquid, gas,
noise, or electro-magnetic or other radiation.
"TRANSACTIONS" means the transactions recorded in this agreement.
"VEHICLES" means, in respect of each Vendor, the motor vehicles
specified in the third schedule as relating to that Vendor.
"WARRANTIES" means the warranties and undertakings set out in the
fifth schedule.
1.2 INTERPRETATION: In this agreement, unless the context otherwise
requires:
(a) words importing one gender include the other genders;
(b) the singular includes the plural and vice versa;
(c) references to a month or a year are references to a
calendar month or year, as the case may be;
(d) references to dates and times are to dates and times in
Melbourne Australia;
(e) references to currency are to Australian currency;
(f) reference to the best of the Vendor's knowledge and belief
or similar expression means that actual knowledge of the
Vendor's employees at the general manager level or higher.
(g) a word or term defined in the Corporations Law has the
same meaning in this agreement;
(h) a reference to the Vendors is a reference to each of the
companies within the term Vendors on a joint and several
basis and all warranties, representations, indemnities,
covenants, agreements and obligations given or entered into
by each company is given jointly and severally [provided
that where one of the Vendors is a "shell" company and
wishes to be released from obligations hereunder to effect
a dissolution or winding up, then the relevant Vendor may
request a release from the Purchaser and the Purchaser may
not unreasonably withhold the granting of such release on
the condition that there is at least one Vendor of
substance remaining and that the release will not prejudice
the position of the Purchaser.
1.3 FURTHER INTERPRETATION: In this agreement:
(a) a reference to a Vendor and the Purchaser is a reference
also to their respective successors, and also, in the case
of the Purchaser, to the permitted assigns of the
Purchaser;
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9
(b) a reference to a "PERSON" includes an individual, firm,
company, corporation or unincorporated body of persons, or
any Authority, in each case whether or not having separate
legal personality, and a reference to a "COMPANY" includes
a person;
(c) headings are for convenience only and do not affect
interpretation;
(d) references to sections, clauses and schedules are
references to sections, clauses and schedules of this
agreement unless specifically stated otherwise;
(e) a reference to a statute or other law includes regulations
and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them.
2. SALE AND PURCHASE OF ASSETS
2.1 AGREEMENT TO SELL: Each Vendor shall sell (as beneficial owner) and
the Purchaser shall purchase the Assets of that Vendor in accordance
with this agreement and the Master Sale and Purchase Agreement.
2.2 OTHER ASSETS: The parties agree that it is their intention that the
Purchaser is acquiring all of the assets of the Business owned by the
Vendor or any Related Company of the Vendor. Should any assets of the
Business be discovered not to be owned or controlled by the Purchaser
within the period 2 years from Completion Date then the Vendor shall
ensure, and shall procure any Related Company to ensure, that such
assets are transferred immediately into the name and control of the
Purchaser at nil consideration, provided that if any of those assets
were not included in the Completion Balance Sheet, at a value
determined (if any) on the same basis as assets of the same kind in
the Completion Balance Sheet or, if not, at a consideration to be
agreed and if not of the same kind then at a value determined by
GAAP, and if GAAP does not cover the valuation of such asset at a
fair value, then determined by an expert in accordance with clause
6.12 of the Master Sale and Purchase Agreement. All costs and
expenses incurred to ensure full compliance with this clause shall be
met by the Vendor other than in relation to such determination under
clause 6.12, the costs of which will be split between the relevant
Vendors (as to half) and the Purchaser (as to half).
3. PURCHASE PRICE
3.1 PURCHASE PRICE: The purchase price for the Assets is (subject to
adjustment in accordance with the provisions of the Master Sale and
Purchase Agreement) the aggregate of:
(a) The sum of $48,108,000; and
(b) The amount of Assumed Liabilities included in the
Completion Balance Sheet in accordance with clause 6.5(b)
of the Master Sale and Purchase Agreement.
3.2 PURCHASE PRICE ALLOCATION: The purchase price is allocated as
follows:
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10
(a) For Plant and Equipment the amount included in the
Completion Balance Sheet in accordance with clause 6.5(b)
of the Master Sale and Purchase Agreement;
(b) For Vehicles the amount included in the Completion Balance
Sheet in accordance with clause 6.5(b) of the Master Sale
and Purchase Agreement;
(c) For Stock, the amount included in the Completion Balance
Sheet in accordance with clause 6.5(b) of the Master Sale
and Purchase Agreement;
(d) For Book Debts, the amount included in the Completion
Balance Sheet in accordance with clause 6.5(b) of the
Master Sale and Purchase Agreement;
(e) For Prepayments, the amount included in the Completion
Balance Sheet in accordance with clause 6.5(b) of the
Master Sale and Purchase Agreement;
(f) For Other Receivables, the amount included in the
Completion Balance Sheet in accordance with clause 6.5(b)
of the Master Sale and Purchase Agreement;
(g) [Blank]
(h) For Goodwill, the balance of the Purchase Price.
3.3 ALLOCATION: As between each state and territory, the purchase price
shall be allocated in the manner set out in the sixth schedule. The
parties acknowledge that the allocation in the sixth schedule has
been determined by the Purchaser and is the sole responsibility of
the Purchaser and if such allocation is not accepted by an Authority
whether for assessment of stamp duty or otherwise, any resulting
cost, liability or exposure shall be the sole responsibility of the
Purchaser.
3.4 GST: Each of the Vendors and the Purchaser agree that each of the
Transactions constitutes the supply of a going concern for the
purposes of subdivision 38-J of the GST Law and that that supply is
"GST free" for the purposes of the GST Law. The Purchaser warrants
that it is "registered" for the purposes of the GST Law. If it is
ascertained or determined that the Transactions do not constitute
supplies of a going concern within the meaning of the GST Law and GST
has application to any supply made under or in connection with this
agreement, each relevant Vendor may, in addition to any amount or
consideration expressed as payable elsewhere in this agreement,
recover from the Purchaser and additional amount on account of GST,
such amount to be calculated by multiplying the amount or Purchase
Price payable by the Purchaser for the relevant supply by the
prevailing GST rate provided that the Vendor provides to the
Purchaser a tax invoice stating the amount of GST and the
consideration for the relevant supply which complies with the GST
Law.
4. PAYMENT AND ASSUMPTION OF LIABILITIES
4.1 PAYMENT: Subject to compliance by the Vendor with clause 7, the
Purchaser shall pay to BSG in cash, on the Completion Date, the
amount referred to in clause 3.1(a) less the Escrow Fund, which
amount BSG is authorised to receive on behalf of the Vendors, and is
subject to subsequent adjustment in accordance with the Master Sale
and Purchase Agreement.
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11
4.2 ESCROW FUND: Subject to compliance by the Vendor with clause 7, the
Purchaser shall on Completion pay to the Escrow Agent the Escrow Fund
to be held in accordance with section 5 of the Master Sale and
Purchase Agreement.
4.3 ASSUMED LIABILITIES: On Completion, the Purchaser shall assume all
the obligations of the Vendors in respect of the Assumed Liabilities
and shall pay all amounts payable in respect of the Assumed
Liabilities as and when they fall due but only to the extent they are
included in the Completion Balance Sheet in accordance with clause
6.5(b) of the Master Sale and Purchase Agreement. The Purchaser shall
indemnify each Vendor against all liability incurred by that Vendor
by reason of any breach by the Purchaser of its obligations under
this clause 4.3.
4.4 CLEAR PAYMENTS: The Purchaser shall pay all amounts payable under
this agreement:
(a) free of any restriction or condition;
(b) free of and (except to the extent required by law) without
any deduction or withholding on account on any tax; and
(c) without any deduction or withholding on account of any
other amount, whether by way of set-off, counterclaim or
otherwise.
4.5 PURCHASER DEFAULT INTEREST: If the Purchaser defaults for any reason
in payment of any amount on the due date (time being strictly of the
essence), the Purchaser shall, upon demand, pay to the Vendors
interest at the Default Rate calculated on a daily basis on the
amount so unpaid from the due date until payment in full, but without
prejudice to any of the Vendors' other rights or remedies under this
agreement or otherwise in respect of such default.
5. PRE-COMPLETION OBLIGATIONS
5.1 POSITIVE OBLIGATIONS OF VENDORS: Pending Completion, each Vendor
shall, except to the extent that the Purchaser otherwise agrees (such
agreement not to be unreasonably withheld), or as expressly permitted
by this agreement:
(a) operate and conduct that Vendor's Business in the normal
course in accordance with the business practices employed
by that Vendor as at the date of this agreement;
(b) properly keep and maintain all necessary books of account
(reflecting in a true and fair manner, in accordance with
their respective accounting policies as at the date of the
agreement all transactions effected by it (or to which it
is a party));
(c) maintain that Vendor's Assets and Business Premises as
required under the Business Contracts and in as good a
state of operating condition and repair as at the date of
this agreement, except for ordinary depreciation and fair
wear and tear;
(d) maintain in full force and effect all existing insurances
in respect of that Vendor's Business and Assets;
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12
(e) promptly notify the Purchaser of any law suits, claims,
proceedings (other than normal debt collections) involving
claims for more than $30,000 per claim, investigations or
adverse events which may occur, be threatened, brought,
asserted or commenced against it, its directors or
employees, involving or affecting that Vendor's Business or
its Assets; and
(f) ensure any assets or contracts of that Vendor's Business
that are not in the name of the Vendor are transferred to
be in the name of the Vendor.
5.2 NEGATIVE OBLIGATIONS OF VENDORS: Pending completion each Vendor shall
not, except to the extent that the Purchaser otherwise agrees (such
agreement not to be unreasonably withheld), or as expressly permitted
by this agreement:
(a) subject to any contracted entitlement to the contrary as of
right and without any agreement or consent of any of the
Vendors, alter, in any material respect, any of the
conditions of employment of employees engaged in that
Vendor's Business in force as at the date of this agreement
where the individual base remuneration of those employees
exceeds $100,000 per annum or where any of those conditions
of employment are contained in a collective employment
agreement or contract provided that this provision shall
not apply to alterations to the conditions of employment of
any other person whose remuneration does not exceed
$100,000 per annum and where such alterations are
consistent with the employment policy and practice of the
relevant Vendors;
(b) give any guarantee or indemnity in respect of the
liabilities of any other person;
(c) create any encumbrance over that Vendor's Assets (other
than any title retention arrangements arising in the
ordinary course of conducting that Vendor's Business);
(d) dispose of any of that Vendor's Assets other than disposals
of stock in the ordinary course of business or disposals in
the ordinary course of conducting its Business and being at
a market value less than $100,000 per asset;
(e) create or incur any indebtedness (whether actual or
contingent) other than incurring of trade indebtedness in
the ordinary course of business or incurring an
indebtedness less than $100,000 in value in the ordinary
course of business;
(f) make or permit to occur any material change to the prices
or terms and conditions of supply of any products or
services other than in the ordinary course of conducting
that Vendor's Business and not being to a Related Company
or associate of the Vendor;
(g) make any material change to its products or services, other
than in the ordinary course of conducting that Vendor's
Business;
(h) acquire any assets other than acquiring stock in the
ordinary course of business or acquisitions in the ordinary
course of conducting that Vendor's Business and being at a
market value less than $100,000 per asset;
<PAGE>
13
(i) enter into any capital expenditure commitments other than
any commitments arising in the ordinary course of business
and involving a financial commitment at a market value less
than $100,000 per commitment;
(j) enter into a property lease commitment other than any such
commitments arising in the ordinary course of business and
involving a financial commitment annually less than
$100,000 per commitment;
Provided that the obligations described in clauses 5.1 and 5.2 above
shall be deemed to have commenced in respect of negative covenants
from 25 August 2000.
5.3 PREPARATION OF TRANSFER DOCUMENTS: The Vendor shall co-operate to
supply the Purchaser, upon request, with such information and
documents as may be reasonably required by the purchaser to allow it
to prepare all assignment, consents, change of ownership forms,
relinquishments, releases, discharges, ASIC forms and other documents
("TRANSFER DOCUMENTS") required to be delivered by each Vendor to the
Purchaser on Completion pursuant to clause 7.2(c). The Purchaser
shall, at its cost, prepare in draft form all Transfer Documents and
submit them to the relevant Vendor not later than 10 Business Days
after sufficient details and copies of relevant documents were
supplied by the Vendors to the Purchaser to allow the Purchaser to
prepare those Transfer Documents. The Vendors and the Purchaser shall
thereafter use their best endeavours respectively to agree on the
form of such documents prior to the Completion Date and the Vendors
shall have them signed by all necessary third parties prior to the
Completion Date.
5.4 INFORMATION PRIOR TO COMPLETION: In the period up to Completion, each
Vendor shall provide the Purchaser and its duly authorised
representatives (including its professional and financial advisers)
with (i) monthly financial statements of that Vendor's Business on a
timely basis; and (ii) reasonable access and make available for
inspection and copying by the Purchaser and its duly authorised
representatives all documentation relating to that Vendor's Business
and operations of the Vendor as the Purchaser may reasonably request
during that Vendor's normal operating hours to that Vendor's Business
Records and Assets to familiarise the Purchaser with that Vendor's
Business provided that the exercise of such rights does not
unreasonably interfere with the day to day conduct of that Vendor's
Business.
5.5 RETURN OF INFORMATION: If this agreement is terminated for any
reason, the Purchaser shall promptly return to each Vendor all copies
of the relevant Vendor's Business Records, and all other written or
recorded information relating to that Vendor's Business, which the
Purchaser has obtained from that Vendor, and thereafter each party:
(a) shall maintain confidentiality in respect of all
information provided by the other party prior to or
following execution of this agreement; and
(b) shall not use any such information for any purpose or
disclose any such information to any other person without
the prior written consent of the party from whom the
information was obtained.
The provisions of this clause do not affect the provisions of any
other confidentiality agreement between the parties or their Related
Companies relating to the Transactions.
<PAGE>
14
6. RISK
6.1 RISK UNTIL COMPLETION: The Assets of each Vendor shall remain at the
risk of that Vendor until
Completion.
6.2 DAMAGE PRIOR TO COMPLETION OF ASSETS: If any of the Assets of a
Vendor are lost, destroyed or damaged prior to Completion and the
loss, destruction or damage has not been made good by the Completion
Date, that Vendor and the Purchaser shall complete the sale and
purchase of that Vendor's Assets upon the basis that the relevant
Assets shall be excluded from the sale, subject to any rights of the
Purchaser under section 9.
7. COMPLETION OBLIGATIONS
7.1 TIME FOR COMPLETION: Subject to the provisions of the Master Sale and
Purchase Agreement, completion of the sale and purchase of the Assets
shall take place not later than 2pm on the Completion Date at the
offices of Russell McVeagh, solicitors to the Vendors and
contemporaneously with completion of the Other Sale and Purchase
Agreements. The obligations of the Vendors and the Purchaser at
Completion under this agreement are respectively conditional upon
contemporaneous completion of the Other Sale and Purchase Agreements.
7.2 VENDORS OBLIGATION ON COMPLETION: At Completion:
(a) title to the Assets of each Vendor shall vest in the
Purchaser;
(b) each Vendor shall give to the Purchaser control or
possession of that Vendor's Assets which, of their nature,
permit control or possession of them to be given;
(c) each Vendor shall, except to the extent that the Purchaser
has otherwise directed in writing prior to Completion,
deliver the following to the Purchaser (which, in the case
of agreements and other documents, shall be executed by the
relevant Vendor and any party or parties thereto other than
the Purchaser and, where registrable, shall be in
registrable form and accompanied by all documents of or
evidencing ownership):
(i) An assignment to the Purchaser of each lease of
the Vendor's Business Premises (other than in
respect of Business Premises for which the
Purchaser does not provide an assignment)
together with the consent of the lessor under
the lease and any other person having an
interest in the relevant Business Premises
(whether as lessee, owner, mortgagee or
otherwise) to the assignment of the lease and to
the grant of the lease and evidence of
registration of the Material Registrable Leases
that are registered as at the date hereof.
(ii) Assignments to the Purchaser of such of the
Vendor's other Business Contracts (if any) as
the Purchaser may, pursuant to clause 7.3,
elect.
(iii) Such copies of the Vendor's Business Contracts
at the Business Premises and consents to the
Business Material Contracts for which
<PAGE>
15
consent is required under clause 7.1 of the
Master Sale and Purchase Agreement.
(iv) Assignments to the Purchaser of the Vendor's
Intellectual Property Rights.
(v) Certificates of registration and change of
ownership forms for the Vendor's Vehicles duly
completed by the Vendor.
(vi) Duly executed memoranda of satisfaction or
discharge of all charges, security interests and
other liabilities (including contingent
liabilities) of the Vendor in respect of the
Vendor's Assets and duly executed ASIC forms of
notification of release or discharge.
(vii) All other documents and things necessary to
transfer to the Purchaser legal title to,
beneficial ownership of and possession of the
Assets and the Business of that Vendor or which
the Purchaser may (by notice in writing to the
Vendor not less than 5 Business Days before the
Completion Date) reasonably require.
(viii) All Business Records of the Vendor, other than
such records or information as that Vendor is
required by law to retain in its possession in
which case the Vendor shall deliver to the
Purchaser a copy of each retained document.
(ix) If applicable, certificates of registration for
the Business Names (including, without
limitation, a certificate of registration of
Bookland as a business name in Western Australia
and a certificate of registration of Australian
Toner Cartridge as a business name in each State
and Territory of Australia) and evidence of
registration of the Domain Names and change of
ownership forms for the Business Names and
Domain Names.
(x) Assignments to the Purchaser of all Licences
which are transferable to the Purchaser and, if
requested by the Purchaser, a relinquishment of
any Licence which is not transferable to the
Purchaser and originals of all Licences.
(xi) All registration certificates and other
documents of title to any of the Assets.
(xii) Assignments to the Purchaser of all Book Debts
and Other Receivables of the Vendor.
(xiii) Written evidence that each of BPL and ATC has
changed its name to delete the reference to the
words "BOOKLAND" and "AUSTRALIAN TONER
CARTRIDGE" and an undertaking that the Vendor
and its Related Companies shall not use the name
Bookland, Australian Toner Cartridge or any
similar name in the future.
<PAGE>
16
(xiv) The licence agreements referred to in clause 11
of the Master Sale and Purchase Agreement.
(xv) All due diligence data (or a copy thereof)
made available to the Purchaser.
7.3 ASSIGNMENT OF RIGHTS: Each Vendor assigns to the Purchaser, with
effect from Completion:
(a) all of that Vendor's property and contractual rights in
that Vendor's Assets;
(b) the benefit of all rights of that Vendor (including any
warranty rights) against third parties relating to that
Vendor's Business or Assets.
Notwithstanding the provisions of this clause, the Purchaser may
elect to require the relevant Vendor to execute and deliver to the
Purchaser at Completion, pursuant to clause 7.2(c)(ii), assignments
in favour of the Purchaser of any Business Contracts by adopting the
procedure set out in clause 5.3.
7.4 PAYMENT BY PURCHASER: Upon compliance with the foregoing provisions
of this section, the Purchaser shall comply with the provisions of
clause 4.1 and 4.2.
7.5 PURCHASER TO PAY STAMP DUTY: The Purchaser shall, within all
applicable statutory time frames, pay all stamp duty and registration
costs in relation to this agreement and the transfers of the Assets
where so required by the laws of any jurisdiction. The Vendors shall
provide such statutory declarations and other written statements as
may be reasonably requested by the Purchaser from time to time in
order to satisfy any stamp duty authority as to the value of the
Business or Assets in any jurisdiction. The Vendors shall be liable
for any stamp duty and registration costs in relation to any Business
Contract in respect of any period ending on or before Completion
which is required by law to be paid or registered on or before
Completion. Each Vendor shall meet all the costs payable to
counterparties (and their professional advisors) under that Vendor's
Business Contracts, which are necessary to complete assignment of
those contracts to the Purchaser. The Purchaser shall indemnify each
Vendor against any breach of this clause by the Purchaser. The
Vendors shall indemnify the Purchaser against any breach of this
clause by a Vendor.
7.6 INSURANCE: The Purchaser acknowledges that, on and from Completion,
all insurance policies of the Vendors and their Related Companies
will cease to apply to the Businesses and the Assets. The Purchaser
further acknowledges that:
(a) although the Purchaser will be entitled to the benefit (if
any) of any claims referable to the claims made policies
(being statutory liability policies) ("CLAIMS MADE
POLICIES") which have been notified to the insurer by or on
behalf of the Vendors prior to Completion Date (to the
extent those claims are shown as assets of the Businesses
in the Completion Balance Sheet), and which remain unpaid
by that date, the Purchaser will not otherwise be entitled
to receive after Completion Date any benefit under any
Claims Made Policies of the Vendors and its Related
Companies; and
(b) it will be responsible for arranging new insurance policies
(if any) in respect of the Businesses and the Assets.
<PAGE>
17
In respect of claims or insurance policies applying to the Businesses
and Assets (notwithstanding their non-renewal) the Vendor shall
provide all reasonable assistance and information to assist the
Purchaser prosecuting such claims at the cost of the Purchaser. The
Vendors shall also use their best endeavours at the cost of the
Purchaser to pursue all claims referred to in clause 7.6(a) and shall
pay to the Purchaser the proceeds of all such claims forthwith after
they are paid by the insurer.
8. POST-COMPLETION PROVISIONS
8.1 RIGHTS AND OBLIGATIONS: With effect from Completion:
(a) the Purchaser shall have the benefit of each of the
Business Contracts, to the exclusion of the Vendors and may
exercise the rights of the Vendors under the Business
Contracts and the Vendors shall promptly pay to the
Purchaser any amount or account to the Purchaser for the
value of any other benefit they receive on or after
Completion under or in respect of the Business Contracts
and shall not exercise any right under the Business
Contracts unless requested to do so by the Purchaser;
(b) except to the extent prohibited by law the Purchaser shall
duly perform all the obligations in accordance with the
terms of the relevant Business Contracts of each Vendor
which arise under each of the relevant Business Contracts
after Completion except any additional obligation or
liability attributable to any breach by that Vendor prior
to Completion of any Business Contract;
(c) the Purchaser shall indemnify each Vendor against any loss
liability or cost arising from any failure by the Purchaser
to comply with the obligation in clause 8.1(b);
(d) to the extent the Purchaser is not permitted by law to
perform any obligation or to exercise a right under a
Business Contract or to do so would breach that contract,
the relevant Vendor shall perform the obligation or
exercise the right at the request and expense of the
Purchaser.
8.2 PURCHASER TO PROVIDE INFORMATION: Following Completion, the Purchaser
shall permit each Vendor such access to copies of the Business
Records as shall be reasonably requested to enable that Vendor to
complete Taxation returns and to comply with other statutory
obligations of that Vendor in relation to the relevant Business.
8.3 VENDOR TO PROVIDE INFORMATION: Following Completion, each Vendor
shall permit the Purchaser to have access to the relevant Business
Records of which the Vendor is required by law to retain in its
possession and to take copies thereof for the purpose of conducting
the Business or complying with other statutory obligations of the
Purchaser relating to the Business.
8.4 BUSINESS LIABILITIES: The Vendors shall continue to be responsible
for and indemnify and shall forever keep indemnified the Purchaser
against all liabilities of each Vendor under any of the Business
Contracts or in respect of any of the Businesses (whether arising due
to any act or omission of a Vendor on or before Completion or
otherwise) which are not:
(a) Assumed Liabilities; or
<PAGE>
18
(b) obligations under the Business Contracts required to be
performed by the Purchaser under this agreement after
Completion.
8.5 PAPERWEALTH AGREEMENTS:
(a) Following Completion the Purchaser shall use its best
endeavours to reach an agreement with Spicers whereby:
(i) Spicers' commercial objectives as reflected in
the Paperwealth Supply Agreement are met, and
the terms are commercially acceptable to the
Purchaser in the exercise of its reasonable
business judgement and BSG is released from any
obligation under the Paperwealth Supply
Agreement; and
(ii) Spicers agrees to terminate the Paperwealth
Supply Agreement and release BSG from its
obligation to repay to Spicers the Initial
Goodwill Payment pursuant to clause 5.5(c) of
the Paperwealth Sale Agreement,
and the Purchaser shall consult with BSG in endeavouring to
achieve satisfaction of these two above objectives.
(b) Despite clause 8.5(a), the Vendors indemnify and shall
forever keep indemnified the Purchaser against all claims,
losses and other liabilities made against or suffered or
incurred by the Purchaser as a consequence of any breach by
a Vendor of the Paperwealth Sale Agreement or Paperwealth
Supply Agreement. For the avoidance of doubt, this clause
8.5(b) is not subject to any disclosure in the seventh
schedule.
(c) If Spicers makes a claim against the Purchaser for which
the Purchaser is indemnified under clause 8.5(b)
("INDEMNIFIED CLAIM") then:
(i) the Purchaser shall notify BSG in writing and
provide to it details of the Indemnified Claim
as soon as reasonably practicable; and
(ii) the Purchaser shall not make any admission of
liability, agreement or compromise in relation
to the Indemnified Claim without BSG's consent,
which must not be unreasonably withheld.
(d) Upon being notified of the Indemnified Claim, BSG shall
take over responsibility for contesting and resolving the
claim and shall consult with the Purchaser to ascertain
what steps, if any, are reasonable and appropriate to
contest the claim and the Purchaser shall:
(i) ensure that BSG is placed in a position, and
shall allow BSG, to dispute and resolve on
behalf of the Purchaser the claim; and
(ii) assist BSG as BSG may reasonably require in
disputing and resolving the claim.
(e) If BSG wishes to contest the Indemnified Claim on behalf of
the Purchaser, BSG must act reasonably and properly having
regard to the continuing business and
<PAGE>
19
reputation of the Purchaser and must not unduly infringe on
the time and demands of the Purchaser's executives,
employees and agents.
9. WARRANTIES AND RIGHTS OF PURCHASER
9.1 WARRANTIES: The Vendors acknowledge and agree that the Purchaser has
entered into this agreement in reliance on, and subject to, the
Warranties and the Vendors warrant, represent and undertake to the
Purchaser, and their successors in interest in the terms set out in
the fifth schedule.
9.2 WRITTEN DISCLOSURES: Set out in the seventh schedule is a list of all
written disclosures made by the Vendors up to the execution of this
agreement for the purposes of the transactions contemplated herein.
Any disclosures not referred to in the said schedule shall be deemed
for the purposes of this agreement not to be a disclosure or
representation made to the Purchaser prior to the execution of this
agreement.
9.3 WARRANTIES ARE SEPARATE: Each of the Warranties, shall be treated as
a separate warranty, representation, undertaking or agreement in
respect of each statement contained therein and the interpretation of
any statement contained therein shall not be restricted by reference
to or inference from any other statement contained therein.
9.4 WARRANTIES ARE TRUE AND CORRECT: The Vendors further warrant,
represent to, undertake and agree with the Purchaser that each of the
Warranties shall be true and correct, on the date of the signing of
this agreement, and on the Completion Date as if made on and as at
each of those dates.
9.5 PURCHASER RELIANCE ON WARRANTIES: The Vendors acknowledge that the
Purchaser has entered into this agreement on the basis of and in full
reliance on the Warranties.
9.6 PRE-COMPLETION DISCLOSURE: The Vendors undertake that they will
disclose forthwith in writing to the Purchaser any matter or thing
which may arise or become known by any of them after the date hereof
and prior to the Completion Date which is inconsistent with any of
the Warranties and which could reasonably affect the judgment of the
Purchaser to proceed with the acquisition of the Assets.
9.7 MATERIAL ADVERSE EVENT: Upon the happening of a Material Adverse
Event in a Business prior to Completion the Vendors shall immediately
advise the Purchaser in writing and the Purchaser may, without
prejudice to any other remedy available to it, by notice to the
Vendors terminate this agreement.
9.8 PURCHASER TO GIVE NOTICE: If the Purchaser becomes aware prior to
Completion of any breach or inaccuracy of any such Warranties of the
kind referred to in clause 9.6 it must give notice to the relevant
Vendor of such breach or inaccuracy.
9.9 VENDOR'S INDEMNITY: Without prejudice to the Purchaser's other
remedies at law or hereunder the Vendors shall indemnify and keep
indemnified the Purchaser in respect of and to the extent of any
damage, loss or expense claimed, incurred or suffered by reason of
any matter or thing at any time being found to be other than as
warranted, represented or agreed to in this agreement or any failure
by the Vendors to perform its obligations under this agreement.
<PAGE>
20
9.10 REDUCTION IN PURCHASE PRICE: Any payment made by the Vendors to the
Purchaser pursuant to this Clause 9 when made shall be deemed to
constitute a reduction of the Purchase Price.
9.11 QUALIFICATIONS AND LIMITATIONS: The Warranties are given subject to
the qualifications and limitations, together with the further rights
of the Vendors and the Purchaser (including the conduct of any
claims) in relation to the Warranties, set out in section 4 of the
Master Sale and Purchase Agreement.
9.12 NOTICE OF BREACH AND RIGHT OF TERMINATION: If the Purchaser receives
a notice pursuant to clause 9.6 or gives notice pursuant to clause
9.8 and such breach or inaccuracy is not remedied within a reasonable
period of time (having regard to the type of breach or inaccuracy)
after the date of the notice but in all cases two business days prior
to the Completion Date the Purchaser shall be entitled by notice to
the Vendor to terminate this agreement.
10. EMPLOYEES
10.1 OFFER OF EMPLOYMENT: Subject to clause 10.4, the Purchaser shall
prior to the Completion Date (but effective at Completion) offer
employment to all of the employees of each Vendor employed
exclusively in the Vendor's Business on terms and conditions which
taken as a whole are no less favourable than those at present enjoyed
by such employees, and the Vendors shall use their reasonable
endeavours to persuade all such employees to accept such offer of
employment.
10.2 RELEASE OF EMPLOYEES: At Completion each Vendor shall release the
employees of that Vendor who accept the Purchaser's offer of
employment made pursuant to clause 10.1 ("TRANSFERRING EMPLOYEES").
10.3 RECOGNITION OF SERVICE: Following Completion the Purchaser shall, in
respect of each Transferring Employee, treat service by any employee
with that Vendor and any prior owner(s) of that Vendor's Business (or
part thereof) as service with the Purchaser for all employment
related purposes.
10.4 PURCHASER'S INDEMNITY: If the Purchaser elects not to offer
employment to all of the employees of each Vendor in accordance with
clause 10.1, the Purchaser shall notify the relevant Vendor prior to
Completion and indemnify that Vendor against all liability in
relation to the payment of any severance, redundancy or like amounts
referable those employees in respect of whom the Purchaser has not
made offers of employment in accordance with clause 10.1 and who are
made redundant by the Vendor within one month after Completion.
10.5 SUPERANNUATION: The Vendors shall provide, and shall use all
reasonable endeavours to ensure the trustees of the superannuation
fund or funds under which the Transferring Employees are
beneficiaries and to which the Vendors contribute, provide to the
Purchaser and the trustees of any superannuation fund nominated by
the Purchaser, such information and assistance as may be reasonably
required by them to allow the Transferring Employees to become
members of the Purchaser's nominated superannuation fund and to
transfer some or all of their accrued benefits under their existing
superannuation fund or funds to the nominated fund or to allow the
Purchaser to continue to make contributions on
<PAGE>
21
behalf of the Transferring Employees to the existing superannuation
fund or funds in place of the Vendors.
10.6 VENDOR'S INDEMNITY: The Vendors indemnify and shall keep indemnified
the Purchaser against all claims, losses, costs or liabilities
arising due to any injury or illness of a Transferring Employee on or
before Completion or any subsequent injury or illness arising due to
any circumstances existing on or before Completion provided that this
provision is limited to claims actually filed or made by employees
prior to Completion.
11. MISCELLANEOUS PROVISIONS
11.1 ANNOUNCEMENTS: Except as may be required by law or by the listing
rules of any relevant stock exchange, no party may make any
announcement or disclosure as to the subject matter or any of the
terms of this agreement except in such form and manner, and at such
time, as the Vendors and the Purchaser agree. If party is required to
make any announcement or disclosure as to the subject matter or any
of the terms of this agreement, that party shall first give notice of
the requirement to the other party, shall consult with the other
party and shall endeavour to agree with the other party on the form
of disclosure or announcement to be made.
11.2 NOTICES: If any party wishes to give to another party any notice,
claim, demand or other communication ("NOTICE") under or in
connection with this agreement, the Notice is sufficiently given or
served (but without prejudice to any other mode of service) if
addressed to that party and delivered to the address of that party
stated below (or to any other address notified by that party for
purposes of receiving Notices):
VENDORS: Blue Star Group Limited
Level 37, ANZ Tower
Albert Street
Auckland
New Zealand
Attention: General Counsel
Copy to: US Office Products Company
1025 Thomas Jefferson Street, NW
Suite 600 East
Washington, DC 20007
United States of America
Attention: General Counsel
PURCHASER: Boise Cascade Corporation
800 W. Bryn Mawr
Itasca, Illinois 60143
United States of America
Attention: Chief Financial Officer
Copy to: Legal Department
<PAGE>
22
Boise Cascade Corporation
1111 W. Jefferson Street
Boise, Idaho 83728-0001
Unites States of America
11.3 ASSIGNMENT BY PURCHASER: The benefit of all obligations and
Warranties of the Vendors under or pursuant to this agreement are
assignable by the Purchaser to any direct or indirect wholly-owned
subsidiary of the Purchaser upon the basis that such subsidiary is
entitled to enforce the same against the relevant Vendors as if named
in this agreement as the Purchaser and subject to such Subsidiary
entering into documentation reasonably satisfactory to those Vendors
whereby the Subsidiary agrees to be bound by the Master Sale and
Purchase Agreement. Notwithstanding any assignment by the Purchaser
pursuant to this clause, the Purchaser remains bound by the terms and
conditions of this agreement and shall as a principal obligor perform
and observe all the obligations of the Purchaser expressed or implied
in this agreement. The Vendors may grant any time or other indulgence
to, or compound with or release, the Purchaser's assignee from
payment or performance under this agreement without affecting the
liability of the Purchaser nor does the amalgamation, death or
winding up of any assignee affect such liability.
11.4 NO MERGER: The obligations and Warranties under this agreement, to
the extent not already performed at Completion, will not merge on
Completion, or on the execution and delivery of any document pursuant
to this agreement, but will remain enforceable to the fullest extent,
notwithstanding any rule of law to the contrary.
11.5 NO WAIVER: No waiver of any breach, or failure to enforce any
provision, of this agreement at any time by any party in any way
affects, limits or waives the right of such party thereafter to
enforce and compel strict compliance with the provisions of this
agreement.
11.6 RELEASE NOT TO PREJUDICE LIABILITY: Any liability of the Vendors to
the Purchaser under this agreement may in whole or in part be
released, compounded or compromised, or any time or indulgence may be
given, by the Purchaser in its absolute discretion, as regards the
Vendors under such liability without in any way prejudicing or
affecting the rights of the Purchaser against the others of them
under the same or a like liability, whether joint and several or
otherwise.
11.7 COSTS: Each party shall bear its own costs and expenses incurred in
connection with the negotiation, preparation and implementation of
this agreement.
11.8 GOVERNING LAW: Except as provided in clause 11.8(b), this agreement
shall be governed by, and construed in accordance with the laws of
the State of Victoria, Australia:
(a) To the extent of any matter governed by the laws of the
State of Victoria, Australia each party unconditionally and
irrevocably submits to the jurisdiction of the courts of
the State of Victoria, Australia in respect of all matters
arising out of this agreement and waives any right it may
have to object to an action being brought in those courts,
to claim that an action has been brought in an inconvenient
forum, or to claim that those courts do not have
jurisdiction.
(b) To the extent that any matter provided for in this
agreement relates to the Other Sale and Purchase
Agreements, except in relation to the sale of shares in
Filing Efficiency Pty Limited, or any matter in the Master
Sale and Purchase Agreement
<PAGE>
23
(including matters relating to the purchase price for the
Assets and any adjustment thereto), such matter shall be
governed by the laws of New Zealand and, in respect
thereof, each party unconditionally and irrevocably submits
to the jurisdiction of the courts in New Zealand and waives
any right it may have to object to an action being brought
in those courts, to claim that an action has been brought
in an inconvenient forum, or to claim that those courts do
not have jurisdiction.
11.9 COUNTERPARTS: This agreement may be executed in two or more
counterparts, each of which is deemed an original and all of which
constitute one and the same agreement. This agreement will be
effective upon the exchange by facsimile executed signature pages.
11.10 ENTIRE AGREEMENT: This agreement, the Other Sale and Purchase
Agreement and the Master Sale and Purchase Agreement record the
entire agreement between the parties, with respect to the subject
matter of such agreements and prevails over any earlier agreements,
arrangements and understandings, relating to the Transactions,
whether written or oral.
11.11 FURTHER ASSURANCE: The parties covenant with each other that each
party will from time to time sign, execute, procure, pass and do all
such further documents, acts, matters, resolutions and things as
shall be necessary or requisite for effecting the provisions of this
agreement.
11.12 PURCHASER WARRANTIES: The Purchaser warrants that:
(a) it has full power and authority to execute and perform this
agreement subject to the terms hereof and such execution
and performance do not contravene any contractual,
statutory or other obligation of the Purchaser of any
nature whatsoever;
(b) this agreement constitutes the legal and binding
obligations of the Purchaser enforceable against the
Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganisation, moratorium or similar laws now or hereafter
in effect, or by creditors' rights generally.
SIGNATURES
BLUE STAR GROUP PTY LIMITED by:
/s/ David Ballantyne /s/ Joseph T. Doyle
--------------------------------- ---------------------------------
Signature of Director Signature of Authorised Person
DAVID BALLANTYNE JOSEPH T. DOYLE
--------------------------------- ---------------------------------
Name of Director Name of Authorised Person
<PAGE>
24
BLUE STAR CORPORATE PTY LIMITED by:
/s/ David Ballantyne /s/ Joseph T. Doyle
--------------------------------- ---------------------------------
Signature of Director Signature of Authorised Person
DAVID BALLANTYNE JOSEPH T. DOYLE
--------------------------------- ---------------------------------
Name of Director Name of Authorised Person
BOOKLAND PTY LIMITED by:
/s/ David Ballantyne /s/ Joseph T. Doyle
--------------------------------- ---------------------------------
Signature of Director Signature of Authorised Person
DAVID BALLANTYNE JOSEPH T. DOYLE
--------------------------------- ---------------------------------
Name of Director Name of Authorised Person
AUSTRALIAN TONER CARTRIDGE CO. PTY LIMITED by:
/s/ David Ballantyne /s/ Joseph T. Doyle
--------------------------------- ---------------------------------
Signature of Director Signature of Authorised Person
DAVID BALLANTYNE JOSEPH T. DOYLE
--------------------------------- ---------------------------------
Name of Director Name of Authorised Person
NATIONAL OFFICE PRODUCTS LIMITED by:
/s/ Darrell R. Elfeldt /s/ Matthew R. Broad
--------------------------------- ---------------------------------
Signature of Director Signature of Secretary
DARRELL R. ELFELDT MATTHEW R. BROAD
--------------------------------- ---------------------------------
Name of Director Name of Secretary
