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(1)
BLUE STAR GROUP PTY LIMITED
ACN 074 868 901
VENDOR
NATIONAL OFFICE PRODUCTS LIMITED
ACN 064 777 224
PURCHASER
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AGREEMENT FOR SALE AND PURCHASE OF
SHARES IN FILING EFFICIENCY PTY LIMITED
(ACN 001 386 689)
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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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i
CONTENTS
<TABLE>
<S> <C>
1. INTERPRETATION............................................................................................1
2. SALE AND PURCHASE.........................................................................................5
3. PURCHASE PRICE............................................................................................5
4. PAYMENT...................................................................................................5
5. PRE-COMPLETION MATTERS....................................................................................6
6. COMPLETION................................................................................................8
7. WARRANTIES...............................................................................................11
8. POST-COMPLETION PROVISIONS...............................................................................13
9. MISCELLANEOUS PROVISIONS.................................................................................13
SIGNATURES........................................................................................................ 16
FIRST SCHEDULE.....................................................................................................17
ACCOUNTS*...............................................................................................17
SECOND SCHEDULE....................................................................................................21
WARRANTIES*.............................................................................................21
THIRD SCHEDULE.....................................................................................................37
DISCLOSURES*............................................................................................37
FOURTH SCHEDULE....................................................................................................38
PREMISES*...............................................................................................38
FIFTH SCHEDULE.....................................................................................................39
TRADE MARKS*............................................................................................39
SIXTH SCHEDULE.....................................................................................................40
EMPLOYEES*..............................................................................................40
SEVENTH SCHEDULE...................................................................................................41
SUPERANNUATION SCHEME TRUST DEED*.......................................................................41
EIGHTH SCHEDULE....................................................................................................42
DEED OF TAX INDEMNITY AND WARRANTY*.....................................................................42
NINTH SCHEDULE.....................................................................................................53
MATERIAL ADVERSE EVENT*.................................................................................53
TENTH SCHEDULE.....................................................................................................54
MATERIAL CONTRACTS*.....................................................................................54
</TABLE>
* Omitted - will furnish to the Commission upon request.
<PAGE>
AGREEMENT dated 2000
PARTIES
BLUE STAR GROUP PTY LIMITED ACN 074 868 901 ("VENDOR")
NATIONAL OFFICE PRODUCTS LIMITED ACN 064 777 224 ("PURCHASER")
INTRODUCTION
A. Filing Efficiency Pty Limited ACN 001 386 689 ("COMPANY") is a company
incorporated in New South Wales, Australia, with two fully paid
ordinary shares on issue.
B. The Vendor is the registered and beneficial owner of all the shares in
the Company ("SHARES").
C. The Vendor has agreed to sell and the Purchaser has agreed to purchase
the Shares on the terms and conditions contained in this agreement.
AGREEMENT
1. INTERPRETATION
1.1 In this agreement, unless the context otherwise requires:
"ACCOUNTS" means the audited financial statements of the Company and
its Subsidiary for the year ended on and as at 29 April 2000, true
copies of which are annexed as the first schedule.
"AGREED RATE" in relation to any amount means the aggregate of:
(a) the average rate as displayed on the New Zealand 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 10.45 am (New Zealand time) on
the day on which interest commences to accrue in respect of
the amount under this agreement; and
(b) 3%.
"AUSTRALIAN GAAP" means accounting principles and practices which are
generally accepted in Australia.
"BUSINESS" means [the sale and distribution of lateral filing systems
and related technology and products at or from the Premises];
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
registered banks are open for business in Melbourne and Auckland.
<PAGE>
2
"BUSINESS RECORDS" means all records of, and information relating to,
the Company and its Subsidiary or necessary for, operating and
conducting the Business including, without limitation, financial
records dealing with production, manufacture, supply and return of
products, customers and suppliers; documentation and accounts, staff
and wage records, fixed asset registers, stock registers, systems
controls and procedures, real property and intellectual property
records, environmental studies, reports and records and statutory
records which the Company or its Subsidiary is required to maintain,
together with all media containing all such records and information.
"COMPLETION" means completion of the sale and purchase of the Shares in
accordance with section 6 or, as the context may require, the point in
time at which such Completion takes place.
"COMPLETION BALANCE SHEET" in relation to the Company, has the meaning
given to that expression 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.
"DEFAULT RATE" means the aggregate of 2% per annum and the Agreed Rate.
"DISCLOSURE SCHEDULE" means the Third Schedule which details the
various disclosures made by the Vendor.
"ESCROW AGENT" has the meaning set out in clause 5.1 of the Master Sale
and Purchase Agreement.
"ESCROW FUND" means $200,000.00.
"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.
"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).
"INCOME TAX ASSESSMENT ACT" means the Income Tax Assessment Act 1936 or
the Income Tax Assessment Act 1997 of the Commonwealth of Australia or
both as the context requires.
<PAGE>
3
"MASTER SALE AND PURCHASE AGREEMENT" means the master sale and purchase
agreement dated on or about the date of this agreement between the
Vendor, 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 ninth
schedule.
"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 Pty Limited, Blue Star Corporate Pty Limited,
Bookland Pty Limited and Australian Toner Cartridge Co Pty
Limited and the Purchaser in relation to the assets and
undertaking of certain businesses; and
(b) Blue Star Group Limited and the Purchaser in relation to the
shares of New Zealand Office Products Limited and Croxley
Stationery Limited.
"PREMISES" means the premises described in the Fourth Schedule.
"PURCHASE PRICE" means the consideration for the purchase of the Shares
specified in clause 3.1.
"RELATED COMPANY" means, in relation to a party, a company which is a
related body corporate as defined in the Australian Corporations Law.
"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.
"SHARES" includes any shares in the Company issued pursuant to clause
5.4.
"SUBSIDIARY" has the meaning set out in section 9 of the Australian
Corporations Law.
"SUBSTANCE" includes (without limitation) any solid, liquid, gas,
noise, or electro-magnetic or other radiation.
"TAX DEED" means the deed of tax indemnity and warranty in the eighth
schedule.
"TAX LAW" has the meaning given to "taxation law" in the Administration
Act together with any other legislation imposing Tax or administering
the collection of Tax affecting the Group, or any equivalent law in any
jurisdiction outside Australia.
"TAXATION WARRANTY" means each of the matters warranted in clause 16 of
the Second Schedule of this agreement.
"TAXATION", "TAX" and "TAXES" each has the meaning given to that
expression in the Master Sale and Purchase Agreement.
"TRANSACTION" means the transaction recorded in this agreement.
<PAGE>
(4)
"WARRANTIES" means the warranties contained in the Second Schedule.
1.2 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 monetary amounts are references to the currency
of Australia;
(e) references to dates and times are to dates and times in
Australia;
(f) reference to the best of the Vendor's knowledge and belief or
similar expression means the 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) words and expressions defined in the Tax Deed have the same
meaning when used in this agreement;
(i) words and expressions defined in the Master Sale and Purchase
Agreement have the same meaning when used in this agreement.
1.3 In this agreement:
(a) a reference to the Vendor or 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;
(b) a reference to a "PERSON" includes an individual, firm,
company, corporation or unincorporated body of persons, or any
state or government or any agency thereof (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 shall 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.
<PAGE>
(5)
2. SALE AND PURCHASE
2.1 SALE AND PURCHASE: The Vendor shall sell as beneficial owner, and the
Purchaser shall purchase, the Shares together with all rights attaching
thereto on the terms and conditions in 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 Company or
its Subsidiary 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 Company or its Subsidiary (as nominated by 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 agreed as to the value then determined (on the above
valuation policy) 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 equally between the Vendor (as to half)
and the Purchaser (as to half).
3. PURCHASE PRICE
3.1 CONSIDERATION: Subject to clause 5.4 the consideration for the purchase
of the Shares is, subject to adjustment in accordance with the
provisions of the Master Sale and Purchase Agreement, $2,111,000.
4. PAYMENT
4.1 PAYMENT: Subject to compliance by the Vendor with clause 6, the
Purchaser shall pay to the Vendor in cash, on the Completion Date, the
amount referred to in clause 3.1 less the Escrow Fund, with any
subsequent adjustment being made in accordance with the Master Sale and
Purchase Agreement.
4.2 ESCROW FUND: Subject to compliance by the Vendor with clause 6, he
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 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.
<PAGE>
(6)
4.4 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 Vendor
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 Vendor's other rights or remedies under this
agreement or otherwise in respect of such default.
5. PRE-COMPLETION MATTERS
5.1 PRE-COMPLETION OBLIGATIONS: Pending Completion, the Vendor has and
shall procure that:
(a) the Company and its Subsidiary will, except to the extent that
the Purchaser otherwise approves (such approval not to be
unreasonably withheld), or as permitted by this agreement
including but not limited to maintaining stock levels,
collection of debtor's accounts and payments to trade
creditors:
(i) operate and conduct their businesses in the normal
course of business in accordance with the business
practices employed by it as at the date of this
agreement;
(ii) 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 them (or to which it is a party)), minute
books, records, the register of members and other
statutory registers and books;
(iii) maintain their assets in as good a state of operating
condition and repair as they are on the date of this
agreement, except for ordinary depreciation and fair
wear and tear;
(iv) maintain in full force and effect all existing
insurances in respect of their businesses and assets;
(v) promptly notify the Purchaser of any law suits,
claims, proceedings (other than in respect of normal
debt collection and those involving claims for less
than $30,000.00), investigations or adverse events
which may occur, be threatened, brought, asserted or
commenced against them, their officers or directors,
involving in any way their businesses or their
assets; and
(vi) ensure any assets or contracts of the Business that
are not in the name of the Company or its Subsidiary
are transferred to be in the name of the Company.
(b) the Company and its Subsidiary will not, without the prior
written consent of the Purchaser (such consent not to be
unreasonably withheld) or as permitted by this agreement:
(i) make any alterations to their existing constitutions
or name, or issue any securities;
<PAGE>
(7)
(ii) subject to any contractual entitlement to the
contrary as of right and without any agreement or
consent of either the Company or its Subsidiary,
alter any of the conditions of employment of their
respective directors, officers or employees 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 base
remuneration does not exceed $100,000 per annum and
where such alterations are consistent with the
employment policy and practice of the relevant
company;
(iii) give any guarantees or indemnities in respect of the
liabilities of any other person;
(iv) create any encumbrance over their respective assets
(other than any title retention arising in the
ordinary course of business);
(v) acquire or dispose of any of their respective assets
or undertakings other than acquisitions or disposals
of stock in the ordinary course of business or
acquisitions or disposals in the ordinary course of
business and being at a market value less than
$100,000 per asset;
(vi) create or incur any indebtedness (whether actual or
contingent) other than the incurring of trade
indebtedness in the ordinary course of business or
incurring an indebtedness less than $100,000 in value
per obligation in the ordinary course of business;
(vii) make or permit to occur any change in any material
respect to the prices or terms and conditions of
supply of any of their respective products or
services other than in the ordinary course of
business and not being to a Related Company or
associate of the Vendor;
(viii) make any material change to their respective
products or services, other than in the ordinary
course of business;
(ix) enter into any capital expenditure commitments other
than any commitments arising in the ordinary course
of business and incurring a financial commitment at a
market value less than $100,000 per commitment;
(x) 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 paragraphs (a) and (b) above
shall be deemed to have commenced in respect of negative covenants from
25 August 2000.
5.2 INFORMATION PRIOR TO COMPLETION: In the period up to Completion, the
Vendor shall procure that the Company and its Subsidiary shall provide
the Purchaser and its duly authorised representatives (including its
professional and financial advisors) with (i) monthly financial
<PAGE>
(8)
statements of the 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
the Business and operations of the Company and its Subsidiary as the
Purchaser may reasonably request during their normal operating hours to
the Business Records and their assets to familiarise the Purchaser with
the businesses of the Company and its Subsidiary provided that the
exercise of such rights does not unreasonably interfere with the day to
day conduct of the Company and its Subsidiary.
5.3 RETURN OF INFORMATION: If this agreement is terminated for any reason,
the Purchaser shall promptly return to the Vendor all copies of the
Business Records, and all other written or recorded information
relating to the business of the Company and its Subsidiary, which the
Purchaser has obtained from the Company or its Subsidiary or the Vendor
or their representatives, 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 to not affect the provisions of any other
confidentiality agreement between the parties.
5.4 PAYMENTS TO AND BY COMPANY: Prior to, or contemporaneously with,
Completion, the Vendor:
(a) with the prior written consent of the Purchaser which shall
not be unreasonably withheld if there is no adverse impact on
or prejudice to the Company, its Subsidiary or the Purchaser,
may procure the Company to declare and pay dividends to the
Vendor out of cash reserves of the Company;
(b) shall repay to the Company or its Subsidiary any moneys owing
by the Vendor or any of its Related Companies to the Company
or its Subsidiary except amounts owing on trading account in
the normal course of business;
(c) with the prior written consent of the Purchaser which shall
not be unreasonably withheld to the extent of available funds
held by the Company and its Subsidiary for such purpose, may
procure to be repaid to the Vendor and its Related Companies
any moneys owing on any account;
(d) may capitalise, subject to the consent of the Purchaser (which
consent shall not be withheld if there is no adverse impact on
or prejudice to the Company, its Subsidiary or the Purchaser),
any debts owing to the Vendor or any of its Related Companies
by the Company and its Subsidiary, upon the basis that any
shares resulting from such capitalisation must be fully paid
up and will be transferred to the Purchaser at completion for
no additional consideration;
<PAGE>
9
Any payments made by the Company or its Subsidiary pursuant to
clauses 5.4(a) and (c) shall reduce the Purchase Price payable by an
amount equal to the aggregate amount paid pursuant to clauses 5.4(a)
and (c).
6. COMPLETION
6.1 TIME FOR COMPLETION: Subject to the provisions of the Master Sale and
Purchase Agreement, completion of the sale and purchase of the Shares
shall take place not later than 2pm on the Completion Date at the
offices of Russell McVeagh, solicitors to the Vendor, and
contemporaneously with completion of the Other Sale and Purchase
Agreements. The obligations of the Vendor and the Purchaser at
Completion under this agreement are respectively conditional upon
contemporaneous completion of the Other Sale and Purchase Agreements.
6.2 VENDOR'S OBLIGATIONS AT COMPLETION: At Completion, the Vendor shall:
(a) deliver to the Purchaser a transfer of the Shares to the
Purchaser or its nominee duly executed by the Vendor in
registrable form;
(b) deliver to the Purchaser the share certificate for the Shares
or a certificate by a director of the Company that no share
certificate has been issued for the Shares;
(c) deliver to the Purchaser evidence of the passing by the board
of directors of the Company of a valid resolution approving
the transfer of the Shares and directing that the name of the
Purchaser be entered in the share register of the Company upon
production of the transfer to the Company duly executed;
(d) deliver to the Purchaser the Business Records;
(e) deliver to the Purchaser resignations in writing of the
directors of the Company and its Subsidiary, together with
acknowledgements that they have no claims whatsoever against
the Company or its Subsidiary including that no moneys are
owing to them on any account;
(f) deliver to the Purchaser evidence satisfactory to the
Purchaser that Company and its Subsidiary have been released
from guarantees, indemnities and similar obligations referable
to negative pledge and other banking arrangements of the
Vendor and its Related Companies;
(g) deliver to the Purchaser evidence reasonably satisfactory to
the Purchaser that the Vendor and Related Companies have
repaid any monies owed to the Company and its Subsidiary and
evidence reasonably satisfactory to the Purchaser that the
Company and its Subsidiary owe no monies to or have any
liabilities to the Vendor or any Related Companies;
(h) cause a meeting of the present directors of the Company and
its Subsidiary to be held at which the directors shall:
<PAGE>
10
(i) revoke all mandates to bankers and give authority in
favour of the persons notified by the Purchaser to
operate the bank accounts of the Company and its
Subsidiary;
(ii) revoke all powers of attorney granted by either the
Company or its Subsidiary;
(iii) appoint such persons as the Purchaser may notify to
be the directors of the Company and its Subsidiary
and secretary of the Company and its Subsidiary; and
hand to the Purchaser the original resolutions of directors;
(i) hand to the Purchaser memoranda of satisfaction or discharge
of all charges and other liabilities (including contingent
liabilities) of the Company or its Subsidiary (excluding in
respect of normal trade creditor debts of the Company or its
Subsidiary incurred in the ordinary course of business);
(j) hand to the Purchaser the written consent of any person or
authority which may be required to the transfer of the Shares
and whose consent is required under clause 7.1 of the Master
Sale and Purchase Agreement;
(k) hand to the Purchaser the Constitutions of the Company and its
Subsidiary and, if notified, vote the Shares in favour of a
special resolution amending the Constitution of the Company in
the manner notified by the Purchaser;
(l) take such other reasonable steps as are notified to enable the
Purchaser to assume ownership and control of the Company and
its Subsidiary;
(m) hand to the Purchaser the Tax Deed, in duplicate, duly signed
by the Vendor;
(n) hand to the Purchaser the Licence, in duplicate, duly signed
by the Vendor;
(o) hand to the Purchaser the certificates of incorporation and
common seals of the Company and its Subsidiary all
certificates of registration, documents of title and other
documents evidencing ownership of the assets of the Company
and its Subsidiary and a copy of any power of attorney under
which this agreement or any document referred to in or
contemplated by this agreement has been executed by the Vendor
or a Related Company, certified to be a true and complete copy
of the original by an Australian solicitor;
(p) hand to the Purchaser the consent of the lessor under each
lease of the Premises and any other person having an interest
in the Premises (whether as lessee, owner, mortgagee or
otherwise) to the sale and transfer of the Shares to the
Purchaser and to grant of the lease and evidence of
registration of the lease if it is registerable and, if the
Company or its Subsidiary is a party to any other agreement or
deed which may be adversely affected by the sale and transfer
of the Shares, the consent of each other party to that
agreement or deed to the sale and transfer of the Shares;
<PAGE>
11
(q) hand to the Purchaser or its nominee all the due diligence
data (or a copy thereof) made available to the Purchaser;
(r) hand to the Purchaser evidence to its reasonable satisfaction
that the Company and its Subsidiary have been released and
discharged from all of their obligations under or in respect
of:
(i) the guarantees and indemnities to Citibank Limited
and Citibank NA dated on or around 23 June 1999;
(ii) the deed of cross guarantee and indemnity dated 23
April 1998 lodged with the Australian Securities
and Investments Commission; and
(iii) all other guarantees, indemnities, letters of
credit and other similar liabilities given,
assumed or procured by or on behalf of the Company
or its Subsidiary in respect of the obligations of
another person.
6.3 INSURANCE: The Purchaser acknowledges that, on and from Completion,
all insurance policies of the Vendor and its Related Companies will
cease to apply to the Company and its Subsidiary and the Vendors
shall procure the Company and its Subsidiary shall receive a refund
for the unexpired term of the insurance policies or be billed only
for their share of the cost of the insurance policies up to
Completion. The Purchaser further acknowledges that:
(a) although the Company and its Subsidiary will be entitled to
the benefit (if any) of any claims referable to the claims
made policies (being the D & O and statutory liability
policies) ("CLAIMS MADE POLICIES") which have been notified to
the insurer by or on behalf of the Company and its Subsidiary
prior to Completion Date (to the extent those claims are shown
as assets of the Company or its Subsidiary in the Completion
Balance Sheet), and which remain unpaid by that date, the
Company and its Subsidiary will not otherwise be entitled to
receive after Completion Date any benefit under any Claims
Made Policies of the Vendor and its Related Companies; and
(b) it will be responsible for arranging new insurance policies
(if any) in respect of the Company and its Subsidiary.
In respect of claims on insurance policies of the Company and its
Subsidiary (notwithstanding their non-renewal) the Vendor shall provide
all reasonable assistance and information to assist the Company or its
Subsidiary prosecuting such claims at the cost of the Company and its
Subsidiary.
6.4 PAYMENT BY PURCHASER: Upon compliance by the Vendor with the provisions
of clause 6.2, the Purchaser shall comply with the provisions of clause
4.1 and 4.2 and have signed the Licences in duplicate.
6.5 PURCHASER TO PAY STAMP DUTY: The Purchaser shall, within all applicable
statutory timeframes, pay all stamp duty and registration costs in
relation to this agreement and on the transfer of the Shares where so
required by the laws of any jurisdiction. The Vendor 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 Shares in any
jurisdiction. The Vendor shall be liable for any
<PAGE>
12
stamp duty and registration costs in relation to any contract or
instrument to which the Company or its Subsidiary is a party in respect
of any period ending on or before Completion or which is required to be
paid or registered on or before Completion.
7. WARRANTIES
7.1 WARRANTIES: The Vendor acknowledges and agrees that the Purchaser has
entered into this agreement in reliance on, and subject to, the
Warranties and the Vendor warrants, represents and undertakes to the
Purchaser, and their successors in interest in the terms set out in the
Second Schedule.
7.2 WRITTEN DISCLOSURES: Set out in the Third Schedule is a list of all
written disclosures made by the Vendor 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 made to the
Vendor prior to the execution of this Agreement.
7.3 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.
7.4 WARRANTIES ARE TRUE AND CORRECT: The Vendor further warrants,
represents to, undertakes and agrees 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.
7.5 PURCHASER RELIANCE ON WARRANTIES: The Vendor acknowledges that the
Purchaser has entered into this agreement on the basis of and in full
reliance on the Warranties.
7.6 PRE-COMPLETION DISCLOSURE: The Vendor undertakes that it will
disclose forthwith in writing to the Purchaser any matter or thing
which may arise or become known by it after the date hereof and
prior to the Completion Date which is inconsistent with any of the
Warranties and which could reasonably affect the judgement of the
Purchaser proceeding with the acquisition of the Shares.
7.7 PURCHASER GIVE NOTICE: If the Purchaser becomes aware prior to
Completion of any breach or inaccuracy of any of such Warranties of the
kind referred to in clause 7.6 it must give notice to the Vendor of
such breach or inaccuracy.
7.8 NOTICE OF BREACH AND RIGHT OF TERMINATION: If the Purchaser receives a
notice pursuant to clause 7.6 or gives notice pursuant to clause 7.7
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 2 Business Days prior to
the Completion Date the Purchaser shall be entitled by notice to the
Vendor to terminate this agreement.
7.9 MATERIAL ADVERSE EVENT: Upon the happening of a Material Adverse Event
prior to Completion the Vendor shall immediately advise the Purchaser
in writing and the Purchaser
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13
may, without prejudice to any other remedy available to it, by notice
to the Vendor terminate this agreement.
7.10 VENDOR INDEMNITY: Without prejudice to the Purchaser's other remedies
at law or hereunder the Vendor shall indemnify and keep indemnified the
Purchaser and each of the Company and its Subsidiary (as the case may
be) 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 Vendor to perform its
obligations under this agreement except to the extent that
indemnification is for breach of the Taxation Warranties.
7.11 REDUCTION IN PURCHASE PRICE: Any payment made by the Vendor to the
Purchaser pursuant to this section 7 when made shall be deemed to
constitute a reduction of the Purchase Price.
7.12 QUALIFICATIONS AND LIMITATIONS: The Warranties are given subject to the
qualifications and limitations, together with the further rights of the
Vendor 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.
7.13 TAX PROTECTION: Without prejudice to the generality of Clause 7.1 the
Vendor shall indemnify and keep indemnified the Purchaser and the
Company and its Subsidiary (as the case may be) 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 the Taxation Warranties,
such claim for indemnification and the indemnification to be made
solely in accordance with and subject to the Tax Deed.
8. POST-COMPLETION PROVISIONS
8.1 INFORMATION FOLLOWING COMPLETION: Following Completion, the Purchaser
shall provide to the Vendor access to copies of the Business Records
and any other information relating to the Company and its Subsidiary as
may be reasonably requested to enable the Vendor to comply with any
statutory obligations and reporting requirements including, without
limitation, obligations in respect of taxation, accounting and
financial reporting.
9. MISCELLANEOUS PROVISIONS
9.1 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
Vendor 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.
9.2 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
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14
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):
VENDOR: Blue Star Group Pty 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
Unites States of America
Attention: Chief Financial Officer
Copy to: Legal Department
Boise Cascade Corporation
1111 W. Jefferson Street
Boise, Idaho 83728-0001
Unites States of America
Attention: General Counsel
9.3 ASSIGNMENT BY PURCHASER: The benefit of all obligations and Warranties
of the Vendor 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 Vendor as if named in this agreement as
the Purchaser and subject to such Subsidiary entering into
documentation reasonably satisfactory to the Vendor 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 Vendor 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.
9.4 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
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15
delivery of any document pursuant to this agreement, but will remain
enforceable to the fullest extent, notwithstanding any rule of law to
the contrary.
9.5 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.
9.6 COSTS: Each party shall bear its own costs and expenses incurred in
connection with the negotiation, preparation and implementation of
this agreement.
9.7 GOVERNING LAW: Except as provided in clause 9.7(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 Australian Asset Sale Agreement, or any matter
in the Master Sale and Purchase Agreement, such matter shall
be governed by the laws of Australia and, in respect thereof,
each party unconditionally and irrevocably submits to the
jurisdiction of the courts in Australia 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.
9.8 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.
9.9 ENTIRE AGREEMENT: This agreement, the Other Sale and Purchase Agreement
and the Master Sale and Purchase Agreements 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 Transaction, whether written or oral.
9.10 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.
9.11 PURCHASER WARRANTY: 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;
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16
(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
NATIONAL OFFICE PRODUCTS LIMITED by:
/s/ Darrell R. Elfeldt /s/ Matthew R. Broad
------------------------------------- -----------------------------------
Signature of Director Signature of Director/Secretary
DARRELL R. ELFELDT MATTHEW R. BROAD
------------------------------------- -----------------------------------
Name of Director Name of Director/Secretary
