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BLUE STAR GROUP LIMITED
VENDOR
BOISE CASCADE OFFICE PRODUCTS NZ LIMITED
PURCHASER
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AGREEMENT FOR SALE AND PURCHASE
OF SHARES IN
NEW ZEALAND OFFICE PRODUCTS LIMITED AND
CROXLEY STATIONERY LIMITED
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Solicitors to Blue Star Group Limited Solicitors to Boise Cascade Office
Russell McVeagh Products (NZ) Limited
Wellington & Auckland Quigg Partners
Wellington
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CONTENTS
1. INTERPRETATION.......................................................2
2. SALE AND PURCHASE....................................................6
3. PURCHASE PRICE.......................................................7
4. PAYMENT..............................................................7
5. PRE-COMPLETION MATTERS...............................................7
6. COMPLETION..........................................................11
7. WARRANTIES..........................................................14
8. ACCESS TO BUSINESS RECORDS..........................................16
9. MISCELLANEOUS PROVISIONS............................................16
SIGNATURES..............................................................19
FIRST SCHEDULE..........................................................20
Accounts*....................................................20
SECOND SCHEDULE.........................................................24
Warranties*..................................................24
THIRD SCHEDULE..........................................................45
Disclosures*.................................................45
FOURTH SCHEDULE.........................................................55
Premises*....................................................55
FIFTH SCHEDULE..........................................................56
Trade Marks*.................................................56
SIXTH SCHEDULE..........................................................58
Employees*...................................................58
SEVENTH SCHEDULE........................................................60
Superannuation Scheme Trust Deed*............................60
EIGHTH SCHEDULE.........................................................61
Deed of Tax Indemnity and Warranty*..........................61
NINTH SCHEDULE..........................................................75
Material Adverse Event*......................................75
TENTH SCHEDULE..........................................................47
Material Contracts*..........................................47
ELEVENTH SCHEDULE.......................................................48
Affidavit*...................................................48
* Omitted - will furnish to the Commission upon request.
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AGREEMENT dated 2000
PARTIES
BLUE STAR GROUP LIMITED ("VENDOR")
BOISE CASCADE OFFICE PRODUCTS NZ LIMITED ("PURCHASER")
INTRODUCTION
A. New Zealand Office Products Limited ("NZOP") AK 412914 is a company
incorporated in New Zealand with 500,000 fully paid ordinary shares
on issue. Croxley Stationery Limited ("CROXLEY") AK 507932 is a
company incorporated in New Zealand and with 5,000,100 fully paid
ordinary shares on issue (together the "COMPANIES" and individually a
"COMPANY").
B. The Vendor is the registered and beneficial owner of all the shares
in the Companies ("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 Companies
and their Subsidiaries for the year ended on and as at 29 April 2000,
true copies of which are annexed as the first schedule.
"ACT" means the Income Tax Act 1994.
"ADMINISTRATION ACT" means the Tax Administration Act 1994.
"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
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10.45 am on the day on which interest commences to accrue
in respect of the amount under this agreement; and
(b) 3%.
"AFFIDAVIT" means the affidavit in the form described in the Eleventh
Schedule.
"BUSINESS" means:
(a) the supply of stationary and office products (including
packaging, computer consumables and furniture) and related
products on a contract basis to corporate or commercial
customers at or from the Premises;
(b) the importation, manufacture and wholesale distribution of
stationery and related office 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.
"BUSINESS RECORDS" means all records of, and information relating to,
the Companies and their Subsidiaries 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 Companies are 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 Companies, 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.
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"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 $7,500,000.
"GROUP" means the Companies and all present and former subsidiary
companies and entities of the Companies incorporated in New Zealand
or elsewhere at the Completion Date or at any prior time.
"NZ GAAP" means generally accepted accounting practice as defined in
the Financial Reporting Act 1993 consistently applied to each of the
Companies.
"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 National Office Products Limited in relation to
the assets and undertaking of certain businesses; and
(b) Blue Star Group Pty Limited and National Office Products
Limited in relation to the shares of Filing Efficiency Pty
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
related to that party within the meaning of sections 2(3) of the
Companies Act 1993.
"SHARES" includes any shares in the Companies issued pursuant to
clause 5.4.
"SUBSIDIARY" has the meaning set out in section 5 of the Companies
Act 1993.
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"TAX AUTHORITY" means the Commissioner of Inland Revenue and the
Inland Revenue Department any other governmental or local
governmental authority or instrumentality responsible for Tax within
and outside of New Zealand.
"TAX DEED" means the deed of tax indemnity and warranty entered into
on or around the date of this agreement in the form prescribed in the
eighth schedule.
"Tax Law" includes any legislation, regulation or rules governing or
relating to Taxation or a Tax Authority.
"TAXATION", "TAX" and "TAXES" have the meaning given to those
expressions in the Master Sale and Purchase Agreement.
"Tax Warranties" means clause 16 of the second schedule as warranted
by clause 7.
"TRANSACTIONS" means the transactions recorded in this agreement.
"WARRANTIES" means the warranties contained in the second 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 monetary amounts are references to the
currency of Australia;
(e) references to dates and times are to dates and times in
New Zealand
(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) words and expressions defined in the eighth schedule to
this agreement have the same meaning when used in this
agreement;
(h) words and expressions defined in the Master Sale and
Purchase Agreement have the same meaning when used in this
agreement.
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1.3 FURTHER INTERPRETATION: 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.
2. SALE AND PURCHASE
2.1 SALE AND PURCHASE: The Vendor shall sell, 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 Companies
within the period two years from Completion Date then the Vendor
shall, and shall procure any Related Company, that such assets are
transferred immediately into the name and control of the Companies
(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 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 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
equally between the Vendor (as to half) and the Purchaser (as to
half).
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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, One hundred
and sixty two million, eight hundred and eighty one thousand dollars
($162,881,000).
3.2 LOWEST PRICE: The Purchase Price is the lowest price that the parties
would have agreed upon for the Shares under the rules relating to the
accrual treatment of income and expenditure in the Income Tax Act
1994, and on that basis no income or expenditure arises under those
rules.
4. PAYMENT
4.1 PAYMENT: 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: 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 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.
4.4 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:
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(a) the Companies and their Subsidiaries 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 them 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 they are a party)), minute books,
records, the register of members and other
statutory registers and books;
(iii) maintain their respective 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 business 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 respective
officers or directors, involving in any way the
respective businesses or their assets;
(vi) ensure any assets or contracts of the Business,
not in the name of a Company, are transferred
to be in the name of the appropriate Company;
(vii) awaiting NZ Post Direct Joint Venture winding
up documentation;
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(b) the Companies 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 names, or issue any
securities;
(ii) subject to any contractual entitlement to the
contrary as of right and without any agreement
or consent of either of the Companies, 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 Companies;
(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 parties
Related or associated with the Vendor;
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(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 clauses 5.1(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 Companies shall provide the Purchaser
and its duly authorised representatives (including its professional
and financial advisors) with (i) monthly financial 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 Companies as the Purchaser may reasonably
request during the Companies' normal operating hours to their
respective Business Records and their assets to familiarise the
Purchaser with the businesses of the Companies and their Subsidiaries
provided that the exercise of such rights do not unreasonably
interfere with the day to day conduct of the businesses of the
Companies and their Subsidiaries.
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 businesses of the Companies, which the
Purchaser has obtained from those Companies 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.
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5.4 PAYMENTS TO AND BY COMPANIES: Prior to, or contemporaneously with,
Completion, the Vendor:
(a) with the prior written consent of the Purchaser which shall
not be withheld if there is no adverse impact on or
prejudice to the Companies or the Purchaser, may procure
the Companies and their Subsidiaries to declare and pay
dividends to the Vendor out of the cash reserves of the
Companies;
(b) shall repay to the Companies and their Subsidiaries any
moneys owing by the Vendor or any of its Related Companies
to the Companies and their Subsidiaries 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 Companies and their Subsidiaries 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 Companies or the Purchaser),
any debts owing to the Vendor or any of its Related
Companies by the Companies and their Subsidiaries, 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;
Any payments made by the Companies or their Subsidiaries pursuant to
clauses 5.4(a) and 5.4(c) shall reduce the Purchase Price payable by
an amount equal to the aggregate amount paid pursuant to clauses
5.4(a) and 5.4(c).
5.5 ARMIDALE INDUSTRIES LIMITED: The obligations of the Vendor under
clauses 5.1 and 5.2 shall apply in relation to Armidale Industries
Limited only to the extent that it is within the legal power of the
Vendor to procure compliance with those obligations as the ultimate
holder of 65% of the shares in that company.
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 2 pm 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
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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 transfers of the Shares to the
Purchaser or its nominee duly executed by the Vendor in
registrable form;
(b) deliver to the Purchaser the share certificates for the
Shares or a certificate by a director of each of the
Companies that no share certificates have been issued for
the Shares;
(c) deliver to the Purchaser evidence of the passing by the
respective boards of directors of the Companies of valid
resolutions approving the transfers of the Shares and
directing that the name of the Purchaser be entered in the
share registers of those Companies upon production of the
transfers to those Companies duly executed;
(d) deliver to the Purchaser the Business Records other than
the Business Records of Armidale Industries Limited;
(e) deliver to the Purchaser resignations in writing of the
directors of the Companies and the Subsidiaries (except in
respect of those directors of the Subsidiaries who
represent shareholders of those subsidiaries other than the
Vendor), together with acknowledgements that they have no
claims whatsoever against the Companies or any of their
Subsidiaries including that no moneys are owing to them on
any account;
(f) deliver to the Purchaser evidence satisfactory to the
Purchaser that the Companies and their Subsidiaries 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 Companies and their
Subsidiaries and evidence reasonably satisfactory to the
Purchaser that the Companies and their Subsidiaries 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 Companies
to be held at which the directors shall:
(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 Companies;
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(ii) revoke all powers of attorney granted by either
of the Companies;
hand to the Purchaser the original of the resolution of
directors;
(i) hand to the Purchaser memoranda of satisfaction or
discharge of all charges of the Companies;
(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 7.1of the
Master Sale and Purchase Agreement;
(k) take such other reasonable steps as are notified to enable
the Purchaser to assume ownership and control of the
Companies not later than 5 Business Days prior to
Completion;
(l) hand to the Purchaser the Tax Deed, in duplicate, duly
executed by the Vendor and the Guarantor;
(m) hand to the Purchaser the Licence, in duplicate, duly
signed by the Vendor;
(n) hand to the Purchaser or its nominee all the due diligence
data (or a copy thereof) made available to the Purchaser;
(o) hand to the Purchaser an Affidavit signed by a director of
the Vendor;.
(p) hand to the Purchaser an amended Agreement Relating to
Joint Purchasing Agreements (in a form agreed by both
parties and cancelling the agreement between WGL Retail
Holdings Limited and New Zealand Office Products Limited
undated.
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 Companies and their Subsidiaries and the
Vendors shall procure the Companies and their Subsidiaries 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 Companies and their Subsidiaries 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
Companies and their Subsidiaries prior to Completion Date
(to the extent those claims are shown as assets of the
relevant Companies and their Subsidiaries
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in the Completion Balance Sheet), and which remain unpaid
by that date, the Companies and their Subsidiaries 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 Companies and their
Subsidiaries.
In respect of claims on insurance policies of the Companies
(notwithstanding their non-renewal) the Vendor shall provide all
reasonable assistance and information to assist the Companies
prosecuting such claims at the cost of the Companies.
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.
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 in respect of the Vendor.
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.
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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 to 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 judgment of the
Purchaser proceeding with the acquisition of the Shares.
7.7 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 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 two 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 a Material Adverse Event
prior to Completion the Vendor shall immediately advise the Purchaser
in writing and the Purchaser 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 Companies (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 Tax 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 each of
the Companies (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
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16
Tax Warranties, such claim for indemnification and the
indemnification to be made solely in accordance with and subject to
the terms of the Tax Deed.
8. ACCESS TO BUSINESS RECORDS
8.1 INFORMATION FOLLOWING COMPLETION: Following Completion, the Purchaser
shall provide to the Vendor access copies of the Business Records and
any other information relating to the Companies and their
Subsidiaries 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 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 Limited
Level 37, ANZ Tower
Albert Street
Auckland
New Zealand
Attention: General Counsel
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17
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
Boise Cascade Corporation
111 W. Jefferson Street
PO Box 50
Boise, Idaho 83728-0001
United 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
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18
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.
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
New Zealand:
(a) to the extent of any matter governed by the laws of New
Zealand, each party unconditionally and irrevocably submits
to the jurisdiction of the courts of New Zealand 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, such matter shall be governed by the laws of
the State of Victoria, Australia and, in respect thereof,
each party unconditionally and irrevocably submits to the
jurisdiction of the courts of the State of Victoria,
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 deeded 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
Agreements 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.
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
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19
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 form 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 LIMITED by:
/s/ David Ballantyne
-----------------------------------------------------
Signature of Authorised signatory
DAVID BALLANTYNE
-----------------------------------------------------
Name of Authorised signatory
BOISE CASCADE OFFICE PRODUCTS (NZ) LIMITED by:
/s/ Darrell R. Elfeldt
-----------------------------------------------------
Signature of Authorised signatory
DARRELL R. ELFELDT
-----------------------------------------------------
Name of Authorised signatory
