EXHIBIT 2.2
PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED
DGHA PERSONS AND TRUSTS
SEARCH INVESTMENT NV
XXXXXX CHEMICAL AUSTRALIA PTY LIMITED
MARSUPIAL L.L.C.
MARSUPIAL-II L.L.C.
SODA ASH (L) BHD
MANAGER SHAREHOLDERS AND
IMC GLOBAL INC.
SALE AND PURCHASE AGREEMENT
PENRICE GROUP OF COMPANIES
XXXXXXXX LEGAL
Lawyers
Xxxxx 00
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx XXX 0000
Tel: (61+2) 0000 0000
Fax: (61+2) 0000 0000
Ref: KMS:HAR08004
TABLE OF CONTENTS
Clause Page
1. INTERPRETATION
2
1.1 Definitions
2
1.2 General
5
1.3 Vendor Obligations
6
1.4 Reasonableness of costs
6
1.5 Schedules and Annexures
7
2. CONDITION PRECEDENT TO AGREEMENT
7
2.1 Ministerial Consent
7
2.2 Reasonable Best Efforts
7
3. AGREEMENT TO SELL AND BUY
7
3.1 Sale and Purchase
7
3.2 No Encumbrances
7
3.3 Title, Property and Risk
7
3.4 Rights Under HCA Equity Documents
7
3.5 DGHA Repurchase Agreement
8
4. PURCHASE PRICE
8
4.1 Total Purchase Price
8
5. CONDITIONS PRECEDENT TO CLOSING
9
5.1 Conditions Precedent to Obligations of Vendors
9
5.2 Conditions Precedent to Obligations of the Buyer
10
5.3 Termination Rights
12
5.4 Effect of Termination
12
5.5 Consequences of Termination
13
5.6 Termination of Merger
13
5.7 Partly Paid Company Shares
13
6. CLOSING
13
6.1 Time and Place of Closing
13
6.2 Obligations of each Vendor at Closing
13
6.3 Obligations of the Buyer at Closing
15
6.4 Interdependency
15
7. SUPERANNUATION
15
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
15
8.1 Organisation of the Company and the Subsidiaries;
Authority15
8.2 Capitalisation of the Company; Ownership
16
8.3 Subsidiaries of the Company
16
8.4 Ability to Carry Out the Agreement
16
8.5 Consents and Approvals
17
8.6 Financial Statements
17
8.7 Title to Properties; Absence of Liens
18
8.8 Litigation
18
8.9 Compliance with Law
19
8.10 Contracts
19
8.11 Brokers and Intermediaries
20
8.12 Tax Matters
20
8.13 Employee Benefits/Superannuation
21
8.14 Intellectual Property
22
8.15 Environmental Matters
23
8.16 Absence of Certain Changes
24
8.17 Employees, Labour Matters, etc
25
8.18 Affiliate Transactions
26
8.19 Availability of Assets and Legality of Use
26
8.20 Insurance
26
8.21 Disclaimer of Other Representations and Warranties;
Knowledge; Disclosure
26
9. REPRESENTATIONS AND WARRANTIES OF VENDORS
27
9.1 Representations and Warranties of DGHA Persons
27
9.2 Representations and Warranties of Prudential
29
9.3 Representations and Warranties of Search
31
9.4 Representations and Warranties of the Manager
Shareholders32
9.5 Disclaimer of Other Representations and Warranties;
Knowledge;
Disclosure
33
9.6 Representations and Xxxxxxxxxx
00
00. REPRESENTATIONS AND WARRANTIES OF THE BUYER
34
10.1 Organisation and Authority of the Buyer
34
10.2 Ability to Carry Out the Agreement
34
10.3 Consent and Approvals
35
10.4 Financial Ability to Perform
35
10.5 Brokers and Intermediaries
35
10A. BUYER'S OPTION
35
10A.1 Exercise of Option
35
11. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE
BUYER
35
11.1 Access and Information
35
11.2 Regulatory Filings
36
11.3 Conduct of Business
36
11.4 Dividends; Changes in Stock
36
11.5 Satisfaction of Conditions
36
11.6 Employee Matters
37
11.7 Tax Matters
37
11.8 Announcement
38
12. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN
ACKNOWLEDGMENTS
38
12.1 Non-survival of Representations and Warranties
38
12.2 Information
38
13. COSTS AND STAMP DUTY
39
13.1 Costs Generally
39
14. LIQUIDATED DAMAGES
39
15. NOTICES
39
15.1 Method of Giving Notices
39
15.2 Time of Receipt
40
15.3 Address of Parties
40
16. GENERAL
41
16.1 Amendment
41
16.2 Waiver
41
16.3 Entire agreement
42
16.4 Severability
42
16.5 No Assignment
42
16.6 Further Assurance
42
16.7 Counterparts
42
16.8 Attorneys
42
17. LAW AND JURISDICTION
42
17.1 Governing Law
42
17.2 Submission to Jurisdiction
43
17.3 Status of Prudential
43
SALE AND PURCHASE AGREEMENT made as of 11 December, 1997
PARTIES:
PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED, a British Virgin
Islands
company having its registered office at PO Box 71, Craigmuir
Xxxxxxxx, Road Town, Tortola, British Virgin Islands, in its
capacity as general partner of Prudential Asia Private
Equity
Limited Partnership, a Cayman Islands exempted limited
partnership
(XXXX);
PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED, in its capacity as
manager of certain assets of and attorney-in-fact for The
Prudential Insurance Company of America (PICA) (Prudential
Asset
Management Asia Limited, collectively in its capacity as
general
partner of XXXX and as manager of certain assets of and
attorneyin-
fact for PICA, is referred to herein as Prudential);
DGHA PERSONS AND TRUSTS described in Schedule 1 (DGHA
Persons);
SEARCH INVESTMENT NV of Xxxxxxxxxx 00, xxx 0, X-0000,
Xxxxxxxxx,
Xxxxxxx (Search);
XXXXXX CHEMICAL AUSTRALIA PTY LIMITED (ACN 072 639 902) of
c/- D.
Xxxxxx Xxxxxx & Associates, Inc., 00xx Xxxxx, 000 Xxxx
Xxxxxx, Xxx
Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America (Company);
MARSUPIAL L.L.C. of c/- D. Xxxxxx Xxxxxx & Associates, Inc.,
00xx
Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of
America (Marsupial);
MARSUPIAL-II L.L.C. of c/- D. Xxxxxx Xxxxxx & Associates,
Inc.,
00xx Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxxxx
Xxxxxx of
America (Marsupial-II);
SODA ASH (L) BHD (a company incorporated in Malaysia with
registration No. LL00648) of c/- Prudential Asset Management
Asia
Limited, a British Virgin Islands company having its
registered
office at XX Xxx 00, Xxxxxxxxx Xxxxxxxx, Xxxx Tow, Tortola,
British Virgin Islands (Soda Ash);
MANAGER SHAREHOLDERS described in Schedule 2 (Manager
Shareholders); and
IMC GLOBAL INC. (a corporation organised under the laws of
Delaware) of 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx
Xxxxxx of America (Buyer) or at the Buyer's option, IMC
Australia
Merger Sub (a corporation organised under the laws of
Delaware) of
0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America.
WHEREAS
Each Vendor is the registered holder of the Sale Stock
with
the power to dispose of the legal and beneficial interests
in the
relevant Sale Stock.
Each Vendor has agreed to sell and the Buyer has agreed
to
buy the Sale Stock on the terms and conditions set out in
this
agreement.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
In this agreement, unless the context otherwise
requires:
Accounting Principles means the accounting principles,
policies and procedures of the Company and its
Subsidiaries,
as employed by each such Company, which are in
conformity
with GAAP;
Affiliate means, with respect to any Person, any other
Person
directly or indirectly Controlling, Controlled by, or
under
common Control with, such other Person;
Affiliate Transactions shall have the meaning set forth
in
clause 8.18;
Agreement and Plan of Merger means the agreement and
plan of
merger dated on or around the date hereof among Xxxxxx
Chemical Group, Inc., Buyer and a wholly owned
subsidiary of
the Buyer;
Business Day means a day on which banks are open for
general
banking business in New York and Sydney;
Closing shall have the meaning set forth in clause
6.1;
Closing Date shall have the meaning set forth in clause
6.1;
Commissioner means the Commissioner of Taxation or any
person acting on his behalf;
Company Benefits shall have the meaning set forth in
clause 11.6;
Company Shares means shares of $1.00 par value in the
capital
of the Company;
Confidentiality Agreement shall have the meaning set forth
in
clause 11.1;
Control (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly
or
indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through
ownership of voting securities, by contract or otherwise;
Deed of Consent means the deed of consent dated 12 December
1996 among the Company, Search, Penrice Soda Products Pty
Ltd
and Chase Securities Australia Limited;
Deed of Covenant means the deed of covenant dated 12
December
1996 among Marsupial, Marsupial-II, Soda Ash, Search and the
Company;
DGHA Management Agreement means the management agreement
dated 29 March 1996 among the Company, Penrice Soda Products
Pty Ltd and D. Xxxxxx Xxxxxx & Associates, Inc.;
Effective Time shall have the meaning given in the Agreement
and Plan of Merger;
Employees shall have the meaning set forth in clause 8.17;
Employment Share Plan means the employee share plan adopted
by the Company on 29 March 1996 as amended;
Encumbrances shall have the meaning set forth in clause 8.7;
Environmental Law means any federal, state, local or foreign
statute, law or regulation, in effect on the date hereof
relating to pollution or protection of the environment,
health or safety;
Final Termination Date shall be June 30, 1998 or such later
date as may be agreed upon in writing by the parties to the
Agreement and Plan of Merger and by the parties to this
agreement;
GAAP shall mean generally accepted accounting principles in
Australia;
Governmental Entity shall mean any federal, state, local or
foreign government or any court, administrative agency or
commissions or other governmental authority or agency,
domestic or foreign;
Hazardous Materials means any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic
substances, petroleum products (including crude oil or any
fraction thereof), defined or regulated as such in or under
any Environmental Law;
HCA Equity Documents means the HCA Shareholders Agreement;
Employee Share Plan; PAMA Option Agreement, Upstream
Letter;
DGHA Management Agreement; HCG Services Agreement; Deed of
Consent and Deed of Covenant;
HCA Shareholders Agreement means the shareholders agreement
dated 29 March 1996 as amended among the Company, Marsupial,
Marsupial-II, Soda Ash and Search;
HCG Services Agreement means the services agreement dated 29
March 1996 among the Company, Penrice Soda Products Pty Ltd
and Xxxxxx Chemical Group, Inc.;
IMC Australia Merger Sub means an entity that is wholly
owned
by the Buyer;
Information Memorandum shall have the meaning set forth in
clause 8.21;
Intellectual Property shall have the meaning set forth in
clause 8.14;
Manager Company Shares means 552 partly paid A preference
Company Shares;
Marsupial means Marsupial LLC;
Marsupial-II means Marsupial-II LLC;
Material Adverse Effect shall have the meaning ascribed to
such term in the Agreement and Plan of Merger;
Marsupial Membership Interest means a membership interest as
defined in the Amended and Restated Limited Liability
Company
Agreement establishing Marsupial;
Marsupial-II Membership Interest means a membership interest
as defined in the Amended and Restated Limited Liability
Company Agreement establishing Marsupial-II;
Merger shall have the meaning given in the Agreement and
Plan
of Merger;
PAMA Option Agreement means the PAMA option agreement dated
29 March 1996 among Soda Ash, Marsupial, Marsupial-II,
Xxxxxx
Chemical Group, Inc. and D. Xxxxxx Xxxxxx & Associates,
Inc.;
Permitted Encumbrances shall have the meaning set forth in
clause 8.7;
Person means an individual, corporation, partnership, trust
or unincorporated organisation or a government or any agency
or political subdivision thereof;
Property and Properties shall have the meaning set forth in
clause 8.15;
Purchase Price means US$54,000,000.00;
Records means originals and copies, in machine readable or
printed form, of all books, files, reports, records,
correspondence, documents and other material of the Company
and the Subsidiaries;
Reference Balance Sheet shall have the meaning set forth in
clause 8.6;
Reference Balance Sheet Date shall have the meaning set
forth
in clause 8.6;
Returns means all returns, reports, estimates, information
returns and statements of any nature with respect to Taxes;
Sale Stock means in respect of the Manager Shareholders the
Manager Company Shares, in respect of Search the Search
Company Shares, in respect of the DGHA Persons the Marsupial
Membership Interests and the Marsupial-II Membership
Interests and in respect of Prudential as general partner of
XXXX, 211 Soda Ash Shares and 211/261 of the Soda Ash
Indebtedness and, in respect of Prudential as the manager of
certain assets of, and attorney-in-fact for, PICA, 50 Soda
Ash Shares and 50/261 of the Soda Ash Indebtedness;
Search Company Shares means 8,272 B preference Company
Shares;
Significant Business shall have the meaning ascribed to such
term in the Agreement and Plan of Merger;
Soda Ash means Soda Ash (L) BHD;
Soda Ash Indebtedness means all indebtedness owed by Soda
Ash
to Prudential as general partner of XXXX and as manager of
certain assets of, and attorney-in-fact for, PICA, as of
Closing;
Soda Ash Shares means 261 shares of US$1.00 each in the
capital of Soda Ash ;
Stockholder Entity means each of Marsupial, Marsupial-II and
Soda Ash;
Subsidiaries means each of the subsidiaries of the Company
and any corporation, joint venture, partnership or other
entity of which the Company, directly or indirectly, owns or
controls shares (or other equity interests) representing
more
than fifty per cent (50%) of the general voting power under
ordinary circumstances of such entity and Subsidiary means
any of those subsidiaries;
Superannuation Fund means the Penrice Soda Products
Superannuation Fund established by trust deed dated
8 June 1989;
Superannuation Law means any law relating to superannuation
which applies or has at any time applied to or in respect of
the Company including the Superannuation Guarantee
(Administration) Xxx 0000 (Cth) and the Superannuation
Industry (Supervision) Xxx 0000 (Cth);
Tax means any present or future tax, levy, impost,
deduction,
charge, duty or withholding of whatever kind, whether direct
or indirect and whether arising under the Tax Act or
otherwise, including income tax, capital gains tax,
recoupment tax, land tax, sales tax, payroll tax, tax
instalment deduction, fringe benefits tax, group tax, profit
tax, interest tax, property tax, undistributed profits tax,
withholding tax, municipal rates, stamp duty, import duty
(and any related interest, penalty, fine or expense in
connection with any of them) levied or imposed by any
Governmental Entity;
Tax Act means the Income Tax Assessment Xxx 0000
(Cth);
Tax Assessment means any assessment of any Tax by any
Tax
Authority;
Tax Authority means in respect of any Tax, the person
who
administers the imposition and collection of that Tax
and
includes the Commissioner;
Upstream Letter means the letter dated on or about 12
December 1996 among Prudential, Search Capital Partners
Limited and the DGHA Persons; and
Vendor means Prudential, as general partner of XXXX, in
respect of 211 Soda Ash Shares, Prudential as the
manager of
certain assets of, and attorney-in-fact for, PICA, in
respect
of 50 Soda Ash Shares, DGHA Persons in respect of the
Marsupial Membership Interests and the Marsupial-II
Membership Interests, Search in respect of the Search
Company
Shares and the Manager Shareholders in respect of the
Manager
Company Shares.
1.2 General
In this agreement, unless the context otherwise
requires:
(a) a reference to any legislation or legislative
provision includes any statutory modification or
reenactment
of, or legislative provision substituted for, and any
subordinate legislation issued under, that legislation
or legislative provision;
(b) the singular includes the plural and vice
versa;
(c) a reference to an individual or person
includes a
corporation, partnership, joint venture, association,
authority, trust, state or government and vice versa;
(d) a reference to any gender includes all
genders;
(e) a reference to a recital, clause, schedule,
annexure or exhibit is to a recital, clause, schedule,
annexure, or exhibit of or to this agreement;
(f) a reference to a party is a reference to a
party to
this agreement and includes that party's executors,
administrators, successors and permitted assigns;
(g) where an expression is defined, another part
of
speech or grammatical form of that expression has a
corresponding meaning;
(h) a reference to a bankruptcy or winding up
includes
bankruptcy, winding up, liquidation, dissolution,
becoming an
insolvent under administration (as defined in section 9
of
the Corporations Law), being placed in receivership and
the
occurrence of anything analogous or having a
substantially
similar effect to any of those conditions or matters
under
the law of any applicable jurisdiction, and to the
procedures, circumstances and events which constitute
any of
those conditions or matters
(i) where an expression is defined anywhere in
this
agreement, it has the same meaning throughout;
(j) a reference to any instrument (such as a deed,
agreement or document) is to that instrument (or, if
required
by the context, to a part of it) as amended, novated,
substituted or supplemented at any time and from time to
time
provided that no such amendment, novation, substitution
or
supplement shall have any affect for purposes of this
agreement unless approved in writing by all parties
hereto;
(k) subsidiary has the meaning given to it in
Division
6 of Part 1.2 of the Corporations Law;
(l) including and similar expressions are not and
must
not be treated as words of limitation;
(m) a reference to dollars or $ is to the currency
of
Australia;
(n) the table of contents and headings are for
convenience only and do not affect interpretation; and
(o) the Soda Ash Shares and the Soda Ash
Indebtedness
are held by Prudential in its capacity as General
Partner of
XXXX and in its capacity as Manager of certain assets of
and
attorney-in-fact for PICA.
1.3 Vendor Obligations
(a) An agreement, representation or warranty in favour
of
two or more Persons is for the benefit of them
jointly
and severally.
(b) An agreement, representation or warranty on the
part of
the Vendor binds each of them severally and not
jointly
and severally. No Vendor is responsible for the
obligations of any of the other Vendors.
1.4 Reasonableness of costs
Where any costs are to be incurred by one party and
borne by
another under this agreement, those costs must be
reasonable
and proper.
1.5 Schedules and Annexures
The schedules and annexures form part of this
agreement.
2. CONDITION PRECEDENT TO AGREEMENT
2.1 Ministerial Consent
This agreement (other than clause 13) shall be of no
force or
effect unless and until:
(a) the Buyer has obtained the consent of the Minister
under
Section 87 of the Mining Xxx 0000 (SA).
(b) The Treasurer of the Commonwealth of Australia
ceasing
to have power under the Foreign Acquisitions and
Takeovers Xxx 0000 to make any order prohibiting
the
implementation of the transactions contemplated by
this
agreement by reason either of the lapse of time or
the
Treasurer having decided (and notified the
affected
party accordingly) that the government of the
Commonwealth of Australia has no objection to the
transactions contemplated by this agreement.
2.2 Reasonable Best Efforts
The Buyer shall use its reasonable best efforts to
procure
the fulfilment of the conditions in clause 2.1. If the
conditions are not fulfilled by the Closing Date, then
the
provisions of clauses 5.4 and 5.5 shall apply.
3. AGREEMENT TO SELL AND BUY
3.1 Sale and Purchase
The Vendor agrees to sell and transfer to the Buyer and
the
Buyer agrees to buy from the Vendor, on the terms and
conditions of this agreement, the Sale Stock.
3.2 No Encumbrances
The Sale Stock must be transferred free from any
Encumbrance
or third party interest and with all benefits, rights
and
entitlements (including dividend rights) attached or
accruing
to them on and from the date of this agreement and
otherwise
on the terms and conditions of this agreement.
3.3 Title, Property and Risk
The title to, property in and risk in respect of the
Sale
Stock:
(a) until Closing remains solely with the Vendor; and
(b) passes to the Buyer on and from Closing
3.4 Rights Under HCA Equity Documents
Each of the Vendors, Marsupial, Marsupial-II and Soda
Ash
hereby waives any rights it may have under the HCA
Equity
Documents in connection with the disposal of the Sale
Stock
to the Buyer as contemplated by this agreement.
3.5 DGHA Repurchase Agreement
The Company and Marsupial-II agree, and Marsupial, Soda
Ash,
Search, the DGHA Persons and Prudential acknowledge,
that the
provisions of clause 2(c) of the DGHA Repurchase
Agreement
dated 29 March 1996 among the Company and Marsupial II
(DGHA
Repurchase Agreement) will apply to the transactions
contemplated by this agreement notwithstanding that any
Exit
Event (as defined in the DGHA Repurchase Agreement) may
occur
in the period set out in clause 2(b) of the DGHA
Repurchase
Agreement.
4. PURCHASE PRICE
4.1 Total Purchase Price
The consideration payable for the Sale Stock is as
follows:
(a) to DGHA Persons in respect of the Marsupial
Membership Interests in the aggregate amount of
US$3,938,081 payable to each such person in
accordance
with the percentage interest indicated across from
that
name on Schedule 1 plus, if the Closing shall not
have
occurred on or before 1 April, 1998 a proportional
amount, measured on a month by month basis, equal
to the
result of the following formula: X((P/365)Y),
where X
is the number of days after 31 March, 1998 that
the
Closing
shall occur, P is the Applicable Interest Rate and
Y is
US$3,938,081. As used herein, the term
"Applicable
Interest Rate" shall mean, for the period from 1
April,
1998 through April 30, 1998, 15%, for the period
from 1
May, 1998 through 31 May, 1998, 17% and for the
period
commencing 1 June, 1998, 19%;
(b) to DGHA Persons in respect of the Marsupial-II
Membership Interests in the aggregate amount of
US$3,805,841 payable to each such person in
accordance
with the percentage interest indicated across from
that
name on Schedule 1 plus, if the Closing shall not
have
occurred on or before 1 April, 1998, a
proportional
amount, measured on a month by month basis, equal
to the
result of the following formula: X((P/365)Y),
where X
is the number of days after 31 March, 1998 that
the
Closing shall occur, P is the Applicable Interest
Rate
and Y is US$3,805,841;
(c) to Prudential in respect of the Soda Ash Shares
and the
Soda Ash Indebtedness, US$33,639,901 plus, if the
Closing shall not have occurred on or before 1
April,
1998, an amount, measured on a month by month
basis,
equal to the result of the following formula:
X((P/365)Y), where X is the number of days after
31
March, 1998 that the Closing shall occur, P is the
Applicable Interest Rate and Y is US$33,639,901;
(d) to Search in respect of the Search Company Shares,
US$10,035,677 plus, if the Closing shall not have
occurred on or before 1 April, 1998, an amount,
measured
on a month by month basis, equal to the result of
the
following formula: X((P/365)Y), where X is the
number
of days after 31 March, 1998 that the Closing
shall
occur, P is the Applicable Interest Rate and Y is
US$10,035,677; and
(e) to the Manager Shareholders in respect of the
Manager
Company Shares in the aggregate US$669,692 payable
to
each such person in accordance with the
shareholding
indicated across from that name on Schedule 2
plus, if
the Closing time shall not have occurred on or
before
April 1, 1998, a proportional amount, measured on
a
month by month basis, equal to the result of the
following formula: X((P/365)Y), where X is the
number
of days after March 31, 1998 that the Closing
shall
occur, P is the Applicable Interest Rate and Y is
US$669,692. For the avoidance of doubt the
parties
acknowledge that this payment is additional to
that set
forth in clause 6.3(b).
5. CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Obligations of Vendors
The obligation of the Vendors to consummate the
transactions
described in clause 6 hereof is subject to the
fulfilment of
each of the following conditions prior to or at the
Closing:
(a) Representations and Warranties
None of the representations and warranties of the
Buyer
contained or referred to herein that is qualified
as to
materiality shall be untrue or incorrect in any
respect
and at the Effective Time such representations and
warranties shall be true and correct as though
made at
the Effective Time, except for changes specifically
permitted by this agreement or resulting from any
transaction expressly consented to in writing by the
Company; none of such representations or warranties
that
are not so qualified shall be untrue or incorrect in
any
material respect and at the Effective Time such
representations and warranties shall be true and
correct
in all material respects as though made at the
Effective
Time, except for changes specifically permitted by this
agreement or resulting from any transaction expressly
consented to in writing by the Company.
(b) Agreements
The Buyer shall have performed and complied in all
material respects with all its undertakings and
agreements required by this agreement to be performed
or
complied with by the Buyer prior to or at the Closing.
(c) No Injunction
No injunction, restraining order or decree of any
nature
of any court or governmental or regulatory authority
shall exist against the Buyer, the Company, any
Subsidiary or any of their respective Affiliates, or
any
of the principals, officers or directors of any of
them,
that restrains, prevents or materially changes the
transactions contemplated hereby.
(d) Consents
All material consents, approvals and authorisations of
Governmental Entities, and all material filings with
and
notifications of Governmental Entities or other
entities
which regulate the businesses of the Company, the
Subsidiaries or the Buyer, necessary on the part of the
Company, any Subsidiary or the Buyer, or their
respective Affiliates, to the execution and delivery of
this agreement and the consummation of the transactions
contemplated hereby are listed on Schedule 5.1(d), and
shall have been obtained or effected (and all
applicable
waiting periods, if any, including any extensions
thereof, under any applicable law, statute, regulation
or rule, if applicable, shall have expired or
terminated, as applicable).
(e) Miscellaneous Closing Deliveries
The Vendors shall have received each of the following:
(i) all documents, instruments and other closing
deliveries specified herein; and
(ii) such evidence as the Vendor may reasonably request
in order to establish:
(A) the corporate power and authority of the
Buyer
to consummate the transactions contemplated
by
this agreement; and
(B) compliance with the conditions of Closing set
forth herein; and
(iii) a certificate pursuant to section 206(6) of
the Corporations Law in connection with the
provision of financial assistance by the
Company as
contemplated by this agreement; and
(f) Closing of Merger
Closing under the Agreement and Plan of Merger
taking
place simultaneously with Closing under this
agreement.
5.2 Conditions Precedent to Obligations of the Buyer
The obligation of the Buyer to consummate the
transactions
described in clause 6 hereof is subject to fulfilment
of each
of the following conditions prior to or at the Closing:
(a) Representations and Warranties
(x) None of the representations and warranties of
the
Company contained or referred to herein that are
qualified as to Material Adverse Effect shall be
untrue
or incorrect in any respect and at the Effective
Time
such representations and warranties shall be true
and
correct at the Effective Time as though made at
the
Effective Time, except for changes therein
specifically
permitted by this agreement or resulting from any
transaction expressly consented to in writing by
the
Buyer; (y) none of such representations or
warranties
that is not so qualified shall be untrue or
incorrect in
such a manner as to cause a Material Adverse
Effect and
at the Effective Time such representations and
warranties shall be true and correct as though
made at
the Effective Time except for changes:
(i) specifically permitted by this agreement; or
(ii) resulting from any transaction expressly
consented
to in writing by the Buyer; or
(iii) that do not have a Material Adverse
Effect.
(it being understood that for purposes of
this
clause (y) qualifications in the
representation and
warranties as to materiality shall be
disregarded).
(b) Agreements
The Company shall have performed and complied in
all
respects with all of its undertakings and
agreements
required by this agreement to be performed or
complied
with by it prior to or at the Closing provided
that the
non-compliance of an undertaking or agreement,
other
than in the case of uncured or unremedied
noncompliance
with clause 11.4 at any time shall not constitute
a
failure of the condition contained in this clause
5.2(b)
if such non-compliance is not a material breach of
such
undertaking or agreement or if such noncompliance,
both
alone and in conjunction with all other such non-
compliances, has not had a Material Adverse
Effect.
(c) The Company's Certificate
The Buyer shall have been furnished with a
certificate
of an authorised officer of the Company, dated the
Closing Date, certifying to the effect that the
conditions contained in clauses 5.2(a), (b) and (f)
have been fulfilled.
(d) No Injunction
No injunction, restraining order or decree of any court
or governmental or regulatory authority shall exist
against the Buyer, the Company, any Subsidiary or any
of
their respect Affiliates, or any of the principals,
officers or directors or any of them, that restrains,
prevents or materially changes the transactions
contemplated hereby.
(e) Consents
All material consents, approvals and authorisations of
Governmental Entities, and all material filings with
and
notifications of Governmental Entities or other
entities
which regulate the businesses of the Company, the
Subsidiaries or the Buyer necessary on the part of the
Company, any Subsidiary or the Buyer, or their
respective Affiliates, to the execution and delivery of
this agreement and the consummation of the transactions
contemplated hereby are listed on Schedule 5.2(e), and
shall have been obtained or effected (and all
applicable
waiting periods, if any, including any extensions
thereof, under any applicable law, statute, regulation
or rule, shall have expired or terminated, as
applicable).
(f) No Material Adverse Change
Since the Reference Balance Sheet Date, except as set
forth on Schedule 5.2(f), there shall have been no
material adverse change in the financial condition or
results of operations of any Significant Business.
(g) Miscellaneous Closing Deliveries
The Buyer shall have received each of the following:
(i) all documents, instruments and other closing
deliveries specified herein; and
(ii) such evidence as the Buyer may reasonably request
in order to establish
(A) the corporate power and authority of the
Company to consummate the transactions
contemplated by this agreement; and
(B) compliance with the conditions of Closing set
forth herein; and
(iii) a certificate pursuant to section 206(6) of
the Corporations Law in connection with the
provision of financial assistance by the Company
as
contemplated by this agreement.
(h) HCA Equity Documents
The Buyer shall have received confirmation that the HCA
Equity Documents have been terminated with effect on
and
from Closing;
(i) Closing of Merger
Closing under the Agreement and Plan of Merger
taking
place simultaneously with Closing under this
agreement;
and
(j) Vendors' Certificate
The Buyer shall have been furnished with a
certificate
of an authorised signatory of each Vendor, dated
the
Closing Date, certifying to the effect that the
condition contained in clause 9.6 has been
fulfilled.
5.3 Termination Rights
This agreement may be terminated and abandoned at any
time
prior to the Effective Time:
(a) by the mutual written consent of the Buyer and all
of
the Vendors;
(b) by the Buyer or the Vendors, who together hold a
majority of the direct or indirect equity interest
in
the Company, if the transactions contemplated
hereby are
not consummated on the Final Termination Date;
(c) by the Buyer, if the Company or any Vendor shall
have
breached any of its representations, warranties or
obligations hereunder, but only if such breach is
continuing on the Final Termination Date and only
if
such breach shall have a Material Adverse Effect;
and
(d) by the Vendors acting unanimously, if the Buyer or
IMC
Australia Merger Sub shall have breached any of
its
representations or warranties or obligations
hereunder,
but only if such breach is continuing on the Final
Termination Date and only if such breach shall
have a
material adverse effect on the Buyer's ability to
perform its obligations under the agreement.
5.4 Effect of Termination
In the event of termination of this agreement by either
the
Vendors or the Buyer as provided in clause 5.3, this
agreement shall forthwith become void and there shall
be no
liability or obligation on the part of the Vendors or
the
Buyer or their respective officers or directors, except
with
respect to clauses 5.5, 8.11, 10.5, 13 and 14. No
termination of this Agreement under paragraphs (c) and
(d) of
clause 5.3 shall constitute a waiver of any rights of
the
party exercising such right of termination.
5.5 Consequences of Termination
If this agreement is terminated under clause 5.3 then,
in
addition to any other rights, powers or remedies
provided by
law:
(a) each party is released from its obligations to
further
perform this agreement except those imposing on it
obligations of confidentiality;
(b) each party retains the rights it has against any
other
party in respect of any past breach; and
(c) the Buyer must return to each Vendor or to the
Vendor's
representative all documents and other materials
in any
medium in its possession, power or control which
contain
information relating to the Company, or any
Subsidiary,
or any Stockholder Entity.
5.6 Termination of Merger
This agreement will terminate and shall forthwith
become void
in the event that the Agreement and Plan of Merger
terminates
for any reason and the provisions of clauses 5.4 and
5.5
will apply in that instance.
5.7 Partly Paid Company Shares
Marsupial, Marsupial-II, Soda Ash and Search agree to
cause
the rights attaching to the partly paid A preference
Company
Shares to be amended with effect on and from Closing so
that
the obligation to pay up all unpaid amounts is deferred
for a
period of 5 years, and must (without limitation):
(a) convene a shareholders meeting of the Company
accordingly; and
(b) vote in favour of a resolution effecting such
amendment.
6. CLOSING
6.1 Time and Place of Closing
The closing of the sale and purchase of Sale Stock
provided
for herein (Closing) will occur at the offices of
Xxxxxxxx
Legal at Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxx at
10.00am
(local time) on the date which is two (2) Business Days
following satisfaction of the conditions precedent in
clauses
2.1, 5.1 and 5.2 or at any other time or place agreed
in
writing by the parties (the date of the Closing being
the
Closing Date).
6.2 Obligations of each Vendor at Closing
(a) At Closing each Vendor (as appropriate) must
deliver to
the Buyer or its solicitors executed transfers and
other
appropriate transfer documentation in favour of
the
Buyer of all the Sale Stock together with the
share
certificates or stock certificates (as the case
may be)
or other evidence of or for the Sale Stock and any
consents which the Buyer reasonably requires to
obtain
registration of those transfers; and
(b) At Closing each Vendor (as appropriate) must use
reasonable best efforts to cause:
(i) the board of directors of the Company to
direct
that (subject to the payment of stamp duty)
the
transfer of the Search Company Shares and the
Manager Company Shares is registered;
(ii) the board of directors of Soda Ash to direct
that
the transfer of the Soda Ash Shares is
registered;
(iii) the delivery to the Buyer or its
solicitors of
the Records of each Company and Subsidiary
(which,
with the exception of common seals and
company
registers, may be done by leaving them at the
premises occupied by the relevant Company or
Subsidiary in the custody of any employee of
the
Company or any Subsidiary);
(iv) the delivery to the Buyer or its solicitors
of duly
completed and signed bank authorities
authorised by
the board of directors of each Company and
Subsidiary directed to the Company's bankers
authorising the operation of each of the
Company's
and the Subsidiary's bank accounts by
nominees of
the Buyer
(v) subject to the articles of association of
each
Company, Subsidiary and Soda Ash, the
appointment
to the board of directors of each Company,
Subsidiary and Soda Ash, of the Buyer's
nominees
and the resignation from those boards, on
terms
that the persons resigning have no claim
against
the relevant Company or Subsidiary or Soda
Ash for
past services, loss of office or wrongful
termination, of the then-existing directors
but so
that a properly constituted board of
directors is
in existence at all times;
(vi) the amendment of the Amended and Restated
Limited
Liability Company Agreement of, respectively,
Marsupial and Marsupial-II so as to cause the
Buyer
to own all of the Marsupial Membership
Interests
and Marsupial-II Membership Interests upon
consummation of the Closing; and
(vii) the appointment as secretary and public
officer of each Company and Subsidiary of the
Buyer's nominees and the resignation from
those
positions of the then-existing secretary and
public
officer in such form as the Buyer requires.
(c) The Buyer may, not later than fourteen (14)
Business
Days prior to the Closing Date, give written
notice to
Prudential requiring Prudential to capitalise the
Soda
Ash Indebtedness with effect on and from Closing
and,
upon receipt of such notice, Prudential must take
all
steps necessary to convert the Soda Ash
Indebtedness to
share capital or amounts paid in respect of share
capital in Soda Ash in a manner which will have no
adverse tax consequences to Soda Ash and the
provisions
of this agreement applying to the transfer of Soda
Ash
Shares will be deemed to apply also to any share
capital
in Soda Ash issued in connection with the
conversion of
the Soda Ash Indebtedness.
6.3 Obligations of the Buyer at Closing
At Closing, the Buyer must:
(a) pay by telegraphic transfer in immediately
available
funds to each Vendor the Purchase Price as set out
in
clause 4.1; and
(b) pay in immediately available funds an aggregate
amount
of US$1,910,808 to the Manager Shareholders (to be
apportioned as agreed separately by way of letter)
plus,
if the Closing time shall not have occurred on or
before
1 April, 1998, an amount, measured on a month by
month
basis, equal to the result of the following
formula:
X((P/365)Y), where X is the number of days after
31
March, 1998 that the Closing shall occur, P is the
Applicable Interest Rate and Y is US$1,910,808 in
consideration for the Manager Shareholders hereby
agreeing to relinquish and waive all rights in
relation
to the issue by the Company of B ordinary Company
Shares.
6.4 Interdependency
The obligations of the parties in respect of Closing
are
interdependent. All things or actions required to be
done at
Closing will be treated as having taken place
simultaneously
and (unless the Vendor and the Buyer agree in writing
to the
contrary) no delivery or payment will be treated as
having
been made until all deliveries and payments due to be
made at
Closing have been made. Closing will be taken for all
purposes not to have occurred unless and until all
those
deliveries and payments have been made unless all of
the
parties agree in writing to the contrary.
7. SUPERANNUATION
Each Vendor must do everything reasonably required by
the
Buyer to put the Buyer or its nominee in the same
position at
Closing as regards control of or influence over the
administration of the Superannuation Fund as such
Vendor is
in on the date of this agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise set forth in any Schedule hereto,
the
Company represents and warrants to the Buyer with
respect to
itself and its Subsidiaries:
8.1 Organisation of the Company and the Subsidiaries;
Authority
The Company and each Subsidiary is a corporation duly
organised, validly existing and in good standing under
the
laws of its jurisdiction of organisation and has all
the
requisite corporate power and authority to carry on its
business as now being conducted and to own and use the
properties owned and used by it. Except as disclosed
on
Schedule 8.1, the Company and each of its Subsidiaries
is
qualified to do business in each jurisdiction in which
the
nature of its business requires it to be so qualified,
except
to the extent the failure to so qualify has not had,
and
would not reasonably be expected to have, a Material
Adverse
Effect. The execution and delivery of this agreement
and the
consummation of the transactions contemplated hereby
have
been duly authorised by all requisite corporate action
on the
part of the Company. Assuming the due authorisation,
execution and delivery hereof by the parties hereto
other
than the Company, this agreement has been duly executed
and
delivered by the Company and constitutes the valid,
binding
and enforceable obligation of the Company, except as
such
enforceability may be limited by bankruptcy,
insolvency,
reorganisation or similar laws affecting creditors'
rights
generally or by general equitable principles.
8.2 Capitalisation of the Company; Ownership
The authorised and issued capital of the Company is
set
forth on Schedule 8.2(a). Except as disclosed on
Schedule 8.2(a), all of the issued shares of the
Company are
duly authorised, validly issued and fully paid .
Except as
disclosed on Schedule 8.2(a) there are no outstanding
options, warrants or other rights of any kind to
acquire any
additional shares of the Company or securities
convertible
into or exchangeable for, or which otherwise confer on
the
holder thereof any right to acquire any such additional
shares, nor is the Company committed to issue any such
option, warrant, right or security. The legal
ownership of
the issued capital of the Company is as set forth on
Schedule
8.2(b).
8.3 Subsidiaries of the Company
Schedule 8.3 sets forth the Subsidiaries of the Company
and
the Company's equity interest in each such Subsidiary.
Except
as set forth on Schedule 8.3, all issued share capital
or
other equity interests of each Subsidiary owned by the
Company is owned free and clear of any and all liens,
claims,
security interests or options, except for restrictions
on
transfer under federal and state securities laws. All
shares
of each Subsidiary which is a corporation have been
validly
issued and are fully paid. There are no outstanding
options,
warrants or other rights of any kind to acquire any
additional shares of any Subsidiary or securities
convertible
into or exchangeable for any additional shares of any
Subsidiary, nor is any Subsidiary committed to issue
any such
option, warrant, right or security. There are no
outstanding
options, warrants or other rights of any kind to
acquire any
additional equity interests of any Subsidiary, nor is
any
Subsidiary committed to issue any such option, warrant
or
right. Except as set forth on Schedule 8.3, the
Company does
not have, directly or indirectly, any equity interest
in any
other corporation, joint venture, partnership, limited
liability company or other entity.
8.4 Ability to Carry Out the Agreement
Except as disclosed on Schedule 8.4, neither the
Company nor
any Subsidiary is subject to or bound by any provision
of:
(a) any law, statute, rule, regulation, or judicial
or
administrative decision;
(b) any articles or certificate or incorporation or by-
laws;
(c) any mortgage, deed of trust, lease, note,
stockholders'
agreement, partnership agreement, bond, indenture,
license, permit, trust, other material instrument
or
agreement; or
(d) any judgment, order, writ, injunction, or decree
of any
court, governmental body, administrative agency or
arbitrator,
that would prevent or be violated by or under which
there
would be a conflict, breach or default as a result of,
nor is
there required any consent of any Person under any
contract
or agreement required to be disclosed on and actually
disclosed on Schedule 8.4 which has not been obtained
for,
the execution, delivery and performance by the Company
of
this agreement and the transactions contemplated
hereby,
other than any violations, defaults or failures to
obtain
consents which have not had and are not reasonably
likely to
have a Material Adverse Effect or a material adverse
effect
on the ability of the Company to perform its
obligations
under this agreement.
8.5 Consents and Approvals
Except as set forth on Schedule 8.5, no consent,
approval,
order or authorisation of, or registration, declaration
or
filing with, any Governmental Entity, is required by or
with
respect to the Company or any of its Subsidiaries in
connection with the execution and delivery of this
agreement
by the Company or the consummation by the Company of
the
transactions contemplated hereby, the failure of which
to
obtain would have a Material Adverse Effect.
8.6 Financial Statements
(a) Attached hereto as Schedule 8.6 are copies of:
(i) the audited balance sheet for the Company on
a
consolidated basis with the Subsidiaries as
of 30
June 1997
(ii) the interim balance sheet for the Company on
a
consolidated basis with the Subsidiaries (the
Reference Balance Sheet) as of 30 September
1997
(the Reference Balance Sheet Date);
(iii) the audited profit and loss and income
statements for the Company on a consolidated
basis
with the Subsidiaries for the fiscal year
ended 30
June 1997; and
(iv) interim profit and loss and income statements
for
the Company on a consolidated basis with the
Subsidiaries.
Each of the Reference Balance Sheet and the profit
and
loss and income statements is attached hereto as
part of
Schedule 8.6 and, except as disclosed on Schedule
8.6,
has been prepared in conformity with the
Accounting
Principles and fairly present (subject, in the
case of
the unaudited statements, to normal, audit
adjustments,
none of which were or are expected, individually
or in
the aggregate, to be material in amount) the
consolidated financial position of the Company and
its
Subsidiaries as at the dates thereof and the
consolidated results of their operations for the
periods
then ended.
(b) Except for liabilities or obligations reflected or
reserved against in the Reference Balance Sheet or
reflected in the Schedules hereto, to the
knowledge of
the Company, neither the Company nor any of the
Subsidiaries has any material liabilities, whether
absolute, accrued, contingent or otherwise, that
would
be required by the Accounting Principles to be
reflected
on the balance sheets of the Company and the
Subsidiaries, that is not reflected or reserved
against
in the Reference Balance Sheet or the Schedules
hereto,
except for liabilities or obligations incurred in
the
ordinary course of business consistent with past
practice since the Reference Balance Sheet Date.
8.7 Title to Properties; Absence of Liens
Except as disclosed on Schedule 8.7(a) the Company and
each
Subsidiary:
(a) has good and marketable title to all of its owned
real
properties;
(b) possesses a valid leasehold interest in its leased
real
properties; and
(c) has title to, or subsisting leasehold interests
in, all
of its personal properties and assets used solely
in the
business of the Company or such Subsidiary or
reflected
on the Reference Balance Sheet (except for
property and
assets disposed of since the Reference Balance
Sheet
Date or acquired since the Reference Balance Sheet
Date
and required by the Accounting Principles to be
recorded
on the balance sheets of the Company or the
Subsidiaries), free and clear of any liens,
security
interests and other encumbrances (Encumbrances),
except
for:
(i) Encumbrances set forth on Schedule 8.7(b
(ii) Encumbrances reflected in the Reference
Balance
Sheet or created in the ordinary course of
business
subsequent to the Reference Balance Sheet
Date and
which are not material;
(iii) Encumbrances securing indebtedness of
less
than $250,000 of record or otherwise that do
not
and will not materially interfere with the
present
use by the Company or the Subsidiaries of the
property subject thereto or affected thereby
or
which otherwise have not had a Material
Adverse
Effect;
(iv) Encumbrances for taxes, assessments or
governmental charges, or landlords',
mechanics',
workmen's, materialmen's or similar liens, in
each
case that are not delinquent or which are
being
contested in good faith;
(v) Encumbrances that are reflected in the title
reports or surveys, if any, delivered or
otherwise
made available to the Buyer in connection
with the
transactions contemplated hereby; and
(vi) Encumbrances incurred in the ordinary course
of
business (such Encumbrances listed in clauses
(i)
to (vi) above being referred to herein as
Permitted
Encumbrances).
Neither the whole nor any part of the owned real
properties or any real property leased, used or
occupied
by the Company is subject to any pending suit for
condemnation or other taking by any public
authority or
other Person, and, to the knowledge of the
Company, no
such condemnation or other taking is threatened or
contemplated.
8.8 Litigation
Except as disclosed on Schedule 8.8 there is no action,
suit
or proceeding pending or, to the knowledge of the
Company,
threatened against the Company or any Subsidiary at
law, in
equity or otherwise, in, before, or by any court or
governmental agency or authority which is reasonably
likely
to have a Material Adverse Effect.
8.9 Compliance with Law
Except as disclosed on Schedule 8.9, to the knowledge
of the
Company, the business of the Company and the
Subsidiaries is
being conducted in all material respects in compliance
with
all laws, ordinances and regulations and other
requirements
of any governmental entity applicable to the Company
and the
Subsidiaries. All governmental approvals, permits and
licenses required by the Company and each Subsidiary in
connection with the conduct of their respective
businesses
have been obtained and are in full force and effect and
are
being complied with in all material respects.
8.10 Contract
(a) Schedule 8.10 sets forth each written contract or
agreement outstanding as of the date hereof to
which the
Company or any Subsidiary is a party and which:
(i) involves future payment or receipt of in
excess of
$250,000 or future performance or receipt of
services or delivery or receipt of goods and
materials, in each case with an aggregate
value in
excess of $250,000 including but not limited
to
sale and purchase agreements, distributorship
agreements and loan agreements, notes and
other
financing documents but excluding soda ash,
salt
and quarry stone sales agreements which have
a term
of less than twelve (12) months;
(ii) is a guarantee in respect of indebtedness of
any
Person (other than the Company or its
Subsidiaries)
which may involve future payment in excess of
$250,000 or is a mortgage, security agreement
or
other collateral arrangement securing
indebtedness
of any Person (other than the Company or its
Subsidiaries) in excess $250,000 and creating
Encumbrances on properties and assets of the
Company or its Subsidiaries with an aggregate
value
in excess of $250,000;
(iii) is a lease providing for monthly rental
payments in excess of $5,000 (exclusive of
charges
for taxes, insurance, utilities, maintenance
and
repair);
(iv) is an employment or consulting contract
pursuant to
which the Company or its Subsidiaries may
reasonably be expected to make payment in
excess of
$100,000 in 1997 or thereafter;
(v) is a technology license agreement material to
the
business of the Company and its Subsidiaries,
taken
as a whole or any Significant Business;
(vi) (A) limits the Company's or any
Subsidiary's
freedom to compete in any line of
business or
in any geographical area or with any
person or
entity; or
(B) prohibits the Company or any of its
Subsidiaries from disclosing any
confidential
information where such prohibition is
likely
to have a Material Adverse Effect;
(vii) is a contract or commitment to sell,
lease or
otherwise dispose of any material asset other
than
in the ordinary course of business consistent
with
past practice; or
(viii) is any other material agreement,
contract,
commitment or series of related agreements,
contracts or commitments which, in any case,
is
subject to change of control provisions or
involves
payments or receipts of more than $250,000
over the
life of such agreements, contracts or
commitments;
or
(ix) any contract or agreement (or other
obligation) of
any third party pursuant to which the third
party
has agreed to assume, retain or otherwise
indemnify
the company against any liability.
(b) Except as set forth in Schedule 8.10, each of the
leases, contracts and other agreements listed in
Schedules 8.7(a), 8.7(b), 8.13, 8.17, 8.18(a) and
8.18(b) constitutes a valid and binding obligation
of
the parties thereto and is in full force and
effect
other than as to certain provisions thereof, the
aggregate effect of which would not deprive any
party
thereto of the practical realisation of the
benefits
thereof and except as limited by:
(i) applicable bankruptcy, insolvency,
reorganisation,
fraudulent conveyance and other laws
affecting
creditors rights generally;
(ii) general equitable principles;
(iii) requirements of reasonableness, good
faith and
fair dealing; and
(iv) additionally, in the case of indemnities and
exculpatory provisions (including certain
waivers),
public policy, and (except for those leases,
contracts and other agreements which by their
terms
will expire prior to the Effective Time) will
subject to the qualification referred to
above,
continue in full force and effect after the
Effective Time, in each case without
breaching the
terms thereof or resulting in the forfeiture
or
impairment of any rights thereunder and
without the
consent, approval or act of, or the making of
any
filing with, any other party. There is no
default
by the Company or any of the Subsidiaries or,
to
the knowledge of the Company, by any third
party,
under any contract or agreement required to
be
described in and actually described on
Schedule 8.10.
8.11 Brokers and Intermediaries
Other than Chase Securities Inc. neither the Company
nor any
Subsidiary has employed any broker, finder, adviser or
intermediary in connection with the transactions
contemplated
by this agreement which would be entitled to a
broker's,
finder's or similar fee or commission in connection
therewith
or upon the consummation thereof. Any such fees due to
Chase
Securities Inc shall be paid by the Company.
8.12 Tax Matters
Except as disclosed on Schedule 8.12:
(a) all Returns required to be filed in respect of the
business of the Company and its Subsidiaries on or
prior
to the Closing Date have been or will be filed
when due
in timely fashion and were or will be correct and
complete in all material respects
(b) all Taxes shown on such Returns that are due on
or
prior to the Closing Date have been or will be
paid when
due in timely fashion or adequate accruals have
been or
will be established for the payment of such Taxes;
(c) to the knowledge of the Company, there is no
action,
suit, proceeding, investigation, audit or claim
now
pending regarding any Taxes relating to the
income,
properties or operations of the businesses of the
Company and its Subsidiaries;
(d) there are no agreements for the extension of the
time
for assessment of any Taxes relating to the
income,
properties or operations of the businesses of the
Company and its Subsidiaries;
(e) all Taxes relating to the income, properties or
operations of the business of the Company and its
Subsidiaries, which Taxes the Company or any
Subsidiaries are required by law to withhold or
collect
have been duly withheld or collected, and have
been
timely paid over to the proper authorities to the
extent
due and payable;
(f) The Company has paid, or the Reference Balance
Sheet
contains full provision for, all Taxes which the
Company
and the Subsidiaries are or may become liable to
pay for
the period up to and including the Reference
Balance
Sheet Date; and
(g) the only liabilities for Taxes of the Company and
the
Subsidiaries arising in respect of the period
after the
Reference Balance Sheet Date and ending on the
Closing
Date will be liabilities arising out of the normal
business and trading activities of the Company and
the
Subsidiaries.
8.13 Employee Benefits/Superannuation
Except as set forth in Schedule 8.13:
(a) other than contributions to the Superannuation
Fund,
neither the Company nor its Subsidiaries has made
or has
been under any obligation (whether legally binding
or
established by custom) to make any payments or
other
forms of contribution to any fund which provides
retirement benefits, pensions, authorities, lump
sum
payments or other like benefits in respect of any
of the
employees, directors or sub-contractors of any
Company
or Subsidiary;
(b) other than the Superannuation Fund there are no
superannuation, retirement or provident schemes or
other
arrangements providing for any payment to
directors,
employees or sub-contractors on their retirement
or
death or on the occurrence of any permanent or
temporary
disability in operation by or in
relation to the Company or its Subsidiaries or its
directors, employees or sub-contractors;
(c) there are no contributions for which payment is
overdue
on the part of the Company, its Subsidiaries or
any
employee due to the Superannuation Fund pursuant
to the
governing rules of the Superannuation Fund;
(d) all contributions by the Company or its
Subsidiaries in
order to satisfy the requirements of a
Superannuation
Law in respect of each employee of the Company or
its
Subsidiaries for the current contribution period,
as
defined in that Superannuation Law, if the current
contribution period was deemed to have ended on
Closing,
have been paid or accrued and will be paid on or
before
Closing by the Company or its Subsidiaries;
(e) in respect of its employees, neither the Company
nor any
Subsidiary is liable to pay or be potentially
liable to
pay any superannuation guarantee shortfall or
penalty to
the Commissioner or the Insurance and
Superannuation
Commissioner pursuant to a Superannuation Law;
(f) there are no outstanding disputes, questions,
demands,
objections or appeals in relation to the
Superannuation
Fund between the trustees of the Superannuation
Fund;
(g) neither the Company nor any Subsidiary has any
current
or projected liability in respect of post-
employment or
post-retirement health, medical or life insurance
benefits for retired, former or current employees;
(h) from its date of establishment, the Superannuation
Fund
has satisfied the superannuation conditions of the
Occupational Superannuation Standards Act 1987 and
the
Superannuation Industry (Supervision) Xxx 0000 and
all
other relevant law governing superannuation funds;
and
(i) the assets of the Superannuation Fund are
sufficient,
having regard to appropriate actuarial valuation
methods
and assumptions, to provide prospective benefits
to the
extent to which they will relate to periods of
service
or membership prior to the Closing Date
8.14 Intellectual Property
(a) Set forth on Schedule 8.14 hereto is a list of all
material patents, trademarks, trade names, service
marks
and copyrights that are owned or licensed by the
Company
or any of the Subsidiaries and, except as set
forth on
Schedule 8.14, are necessary for the operation of
the
Company's businesses as presently conducted (the
Intellectual Property). Except as disclosed on
Schedule
8.14:
(i) to the knowledge of the Company, the Company
or its
respective Subsidiaries owns or possesses, or
owns
or possesses licenses or other valid rights
to use,
all Intellectual Property used by it and set
forth
on Schedule 8.14; and
(ii) to the knowledge of the Company, the conduct
of the
business of the Company and each Subsidiary
as now
being conducted does not infringe or conflict
with, nor has it been alleged to infringe or
conflict with, any patents, trademarks, trade
names
or copyrights or other intellectual property
rights
of others.
(b) To the knowledge of the Company, there is no claim
or
liability for trademark, trade name, patent or
copyrights infringement as to any products
manufactured
or sold in the businesses of the Company and the
Subsidiaries.
(c) To the knowledge of the Company, except as set
forth on
Schedule 8.14, on the date hereof:
(i) there are no pending re-examination,
opposition,
interference, cancellation or other
administrative
proceedings with respect to any of the
Intellectual
Property; and
(ii) no order, holding, decision or judgment has
been
rendered by any court of law or authority,
and no
agreement, consent or pending litigation in a
court
of law exists to which the Company or any
Subsidiary is a party, which would prevent
the
Company, any Subsidiary or the Buyer from
using any
of the Intellectual Property.
8.15 Environmental Matters
Except as set forth on Schedule 8.15, to the knowledge
of the
Company, each of the representations and warranties set
forth
in subsections (a) through (f) of this clause 8.15 is
true
and correct with respect to each parcel of real
property
owned or leased by the Company or any of the
Subsidiaries
(individually, a Property and collectively, the
Properties):
(a) the Properties do not contain, by activities or
operations of the Company or any Subsidiary, in,
on, or
under, including, without limitation, the soil and
groundwater thereunder, any Hazardous Materials,
except
in compliance in all material respects with all
applicable Environmental Laws;
(b) the Properties and all operations and facilities
at the
Properties are in compliance in all material
respects
with all applicable Environmental Laws and all
governmental approvals, permits and licenses
required
for the Properties, and all operations and
facilities of
the Company or the Subsidiaries under applicable
Environmental Laws have been obtained and are in
full
force and effect and are being complied with in
all
material respects;
(c) neither the Company nor any Subsidiary, nor any
of
their respective Affiliates has received any
written
governmental complaint, notice of violation,
alleged
violation, or investigation or notice of potential
liability or of potential responsibility regarding
environmental protection or any health or safety
matters
or permit compliance with regard to the
Properties;
(d) Hazardous Materials have not been generated,
stored,
transported, treated or disposed of on the
Properties or
transferred from the Properties to any other
location by the Company or a Subsidiary except in
compliance in all material respects with all
applicable
Environmental Laws in effect at the time of such
activities;
(e) there are no governmental, administrative actions
or
judicial proceedings pending or threatened under
any
applicable Environmental Laws to which the Company
or
any Subsidiary is named as a party with respect to
the
Properties or any Hazardous Materials transferred
from
the Properties, nor are there any consent decrees
or
other decrees, consent orders, administrative
orders or
other orders, under any applicable Environmental
Law
with respect to any of the Properties; and
(f) the water use rights of the Company and its
Subsidiaries
are sufficient to conduct their respective
businesses as
correctly conducted.
Anything in this agreement to the contrary
notwithstanding,
this clause 8.15 shall be the exclusive representation
and
warranty relating to environmental matters.
8.16 Absence of Certain Changes
Except as set forth in Schedule 8.16 or as expressly
permitted by this agreement, between the Reference
Balance
Sheet Date and the date hereof, neither the Company nor
any
Subsidiary has:
(a) purchased, sold, leased, transferred or assigned
or
agreed to purchase, sell, lease, transfer or
assign, any
of its assets, tangible or intangible involving
more
than $250,000 except in the ordinary course of
business
consistent with past practice;
(b) entered into any contract, lease, sublease,
license or
sublicense (or series of related contracts,
leases,
subleases, licenses and sublicenses) involving
more than
$250,000 except in the ordinary course of business
consistent with past practices;
(c) accelerated, terminated, modified, or cancelled
any
contract, lease, sublease, license or sublicense
(or
series of related contracts, leases, subleases,
licenses
and sublicenses) involving more than $250,000 to
which
the Company or any Subsidiary is a party or by
which
such company is bound, except in the ordinary
course of
business consistent with past practices;
(d) imposed any Encumbrances (except for Permitted
Encumbrances) upon any of its real property;
(e) made any capital expenditure or series of related
capital expenditures) involving more than $250,000
except in the ordinary course of business
consistent
with past practice;
(f) made any capital investment in, any loan to, or
any
acquisition of the securities or assets of any
other
person (or series of related capital investments,
loans,
and acquisitions) involving more than $250,000,
except
in the ordinary course of business consistent with
past
practice;
(g) created, incurred, assumed, or guaranteed any
indebtedness for borrowed money (including
capitalised
lease obligations) involving more than $75,000
singly or
$250,000 in the aggregate, except in the ordinary
course
of business consistent with past practice;
(h) granted any license or sublicense of any rights
under or
with respect to any material Intellectual
Property;
(i) issued, sold, or otherwise disposed of any of its
shares or any shares of any subsidiary, or granted
any
options, warrants, or other rights to purchase or
obtain
(including upon conversion or exercise) any of its
shares or any shares of any Subsidiary;
(j) declared, set aside, or paid any dividend or
distribution with respect to its shares or
redeemed,
purchased, or otherwise acquired any of its
shares;
(k) made any loan to, or entered into any other
transaction
with, any of its directors, officers, or employees
outside the ordinary course of business giving
rise to
any claim or right on its part against the person
or on
the part of the person against such company;
(l) entered into any employment contract or enterprise
bargaining agreement, written or oral, or modified
the
terms of any existing such contract or agreement
outside
the ordinary course of business consistent with
past
practice;
(m) granted any increase in the base compensation of
any of
its directors, officers, and key employees;
(n) adopted any (A) bonus, (B) profit-sharing, (C)
incentive compensation, (D) pension, (E)
retirement, (F)
medical, hospitalisation, life, or other insurance
or
(G) severance plan;
(o) made any other material change in employment terms
for
any of its directors, officers, and employees
outside
the ordinary course of business consistent with
past
practice;
(p) made or pledged to make any capital contribution
(other
than to a wholly owned subsidiary) or made or
pledged to
make any charitable contribution or contributions
in
excess of $10,000, individually, or $100,000 in
the
aggregate; or
(q) contractually committed to do any of the
foregoing;
(r) no material adverse change in the assets,
business,
financial condition or operations of the Company
or any
Significant Subsidiary and no fact or condition
exists
or to the Company's knowledge is threatened which
might
reasonably be expected to cause such a material
adverse
change in the future; or
(s) no damage, destruction, loss or claim, whether or
not
covered by insurance, or condemnation or other
taking
has a Material Adverse Effect.
8.17 Employees, Labour Matters, etc
Schedule 8.17 sets forth the names of all employees of
the
Company and its Subsidiaries (Employees) and addresses.
Except as set forth on Schedule 8.17, neither the
Company nor
any Subsidiary is a party to or bound by any enterprise
bargaining or other industrial agreement. Except as
set
forth on Schedule 8.16, since the Reference Balance
Sheet
Date, there has not occurred or, to the knowledge of
the
Company, been threatened any material strike, slowdown,
picketing, work stoppage, concerted refusal to work
overtime
or other similar labour activity with respect to any
employees of the Company or any Subsidiary. Except as
set
forth on Schedule 8.17, there are no material labour
disputes
currently subject to any grievance procedure,
arbitration or
litigation pending or, to the knowledge of the Company,
threatened with respect to any employee of the Company
or any
Subsidiary. To the knowledge of the Company, the
Company and
all its Subsidiaries have complied in all material
respects
with all applicable laws pertaining to the employment
or
termination of employment of its employees, including,
without limitation, all such applicable laws relating
to
labour relations, equal employment opportunities, fair
employment practices, prohibited discrimination or
distinction and other similar employment activities.
8.18 Affiliate Transactions
Schedule 8.18(a) contains a list of all contracts,
agreements, transactions or commitments between any
officer,
employee or director of the Company or any Subsidiary,
any
family member of any of the foregoing or any other
Affiliate
of any of the foregoing (other than the Company or a
Subsidiary), on the one hand, and the Company or any
Subsidiary, on the other hand, to the Company's
knowledge
other than:
(a) compensation paid as part of the employment
relationship
for services rendered (including directors' fees);
(b) superannuation contributions by the Company or any
Subsidiary (collectively, the Affiliate
Transactions),
that are currently in effect or that will bind the
Company or any Subsidiary after the Closing; or
(c) the HCA Equity Documents.
Except as set forth in Schedule 8.18(b), no severance,
"change-in-control", termination or other similar
payment
will be or become due at the Effective Time.
8.19 Availability of Assets and Legality of Use
Except as set forth in Schedule 8.19, the assets owned
or
leased by the Company constitute all the assets used in
its
business and in all material respects are in sufficient
condition to operate the businesses consistent with
past
practices.
8.20 Insurance
Schedule 8.20 sets forth a list and brief description
(including nature of coverage, limits, deductibles,
premiums
and the loss experience for the most recent three
years with
respect to each type of coverage) of all policies of
insurance maintained, owned or held by the Company
during the
period from 1 April 1995 (current insurance in the case
of
property and casualty insurance) up to and including on
the date hereof. The Company has complied with each
of such
insurance policies in all material respects and has not
failed to give any notice or present any claim, with
respect
to claims in excess of $250,000 thereunder in a due and
timely manner. The Company maintains policies of fire
and
casualty, liability (general, products and other
liability),
workers' compensation and other forms of insurance and
bonds
in commercially reasonable amounts and against
commercially
reasonable risks and losses.
8.21 Disclaimer of Other Representations and Warranties;
Knowledge; Disclosure
(a) Neither the Company nor any Subsidiary makes, or
has
made, any representations or warranties relating
to the
Company, any Subsidiary, or the business of the
Company
or any Subsidiary or otherwise in connection with
the
transactions contemplated hereby other than those
expressly set forth herein which are made by the
Company. Without limiting the generality of the
foregoing, neither the Company nor any Subsidiary
has
made, or shall be deemed to have made, any
representations or warranties in the Information
Memorandum relating to the businesses of the
Companies
and their Subsidiaries prepared by Chase
Securities Inc.
on behalf of the Company and supplied to the Buyer
prior
to the date hereof (the Information Memorandum) or
in
any presentation of the businesses of the Company
and
the Subsidiaries in connection with the
transactions
contemplated hereby, and no statement contained in
the
Information Memorandum or made in any such
presentation
shall be deemed a representation or warranty
hereunder
or otherwise. It is understood that any cost
estimates,
projections or other predictions, any data, any
financial information or any memoranda or offering
materials or presentations, including but not
limited to
the Information Memorandum, are not and shall not
be
deemed to be or to include representations or
warranties
of the Company or any Subsidiary. No Person has
been
authorised by the Company or any Subsidiary to
make any
representation or warranty relating to the Company
or
any Subsidiary, the business of any Company or any
Subsidiary or otherwise in connection with the
transactions contemplated hereby and, if made,
such
representation or warranty must not be relied upon
as
having been authorised by the Company or any
Subsidiary.
(b) Whenever a representation or warranty made by the
Company herein refers to the knowledge of the
Company,
such knowledge shall be deemed to consist only of
the
actual knowledge on the date hereof and on the
Closing
Date, as applicable, of those persons listed on
Schedule
8.21.
(c) Certain information set forth in the Schedules is
included solely for informational purposes and may
not
be required to be disclosed pursuant to this
agreement.
The disclosure of any information shall not be
deemed to
constitute an acknowledgement that such
information is
required to be disclosed in connection with the
representations and warranties made by the Company
in
this agreement or that it is material, nor shall
such
information be deemed to establish a standard of
materiality.
9. REPRESENTATIONS AND WARRANTIES OF VENDORS
Except as otherwise set forth in any Schedule hereto,
the
Vendors severally represent and warrant to the Buyer as
follows.
9.1 Representations and Warranties of DGHA Persons
Except as otherwise set forth in any Schedule hereto,
the
DGHA Persons represent and warrant to the Buyer:
(a) Organisation of Marsupial, Marsupial-II;
Authority
Each of Marsupial and Marsupial-II Entity is a
company
duly organised, validly existing and in good
standing
under the laws of its jurisdiction of organisation
and
has all the requisite corporate power and
authority to
carry on its business as now being conducted and
to own
and use the properties owned and used by it.
Except as
disclosed on Schedule 9.1(a), each of Marsupial
and
Marsupial-II is qualified to do business in each
jurisdiction in which the nature of its business
requires it to be so qualified, except to the
extent the
failure to so qualify has not had, and would not
reasonably be expected to have, a Material Adverse
Effect. The execution and delivery of this
agreement
and the consummation of the transactions
contemplated
hereby have been duly authorised by all requisite
corporate action on the part of the DGHA Persons.
Assuming the due authorisation, execution and
delivery
hereof by the parties hereto other than the DGHA
Persons, this agreement has been duly executed and
delivered by the DGHA Persons and constitutes the
valid,
binding and enforceable obligation of the DGHA
Persons,
except as such enforceability may be limited by
bankruptcy, insolvency, reorganisation or similar
laws
affecting creditors' rights generally or by
general
equitable principles.
(b) Capitalisation of Marsupial, Marsupial-II
Attached hereto as Schedule 9.1(b) is a copy of
the
Amended and Restated Limited Liability Company
Agreement
of, respectively, Marsupial and Marsupial-II.
Except as
set forth in said agreements, there are no
membership
interests in such companies and there are no
outstanding
options, warrants or other rights of any kind to
acquire
any interests of any such company or securities
convertible into or exchangeable for or which
otherwise
confer on the holder thereof any right to acquire
any
such additional interests, nor is any such company
committed to issue any such option, warrant, right
or
security. The DGHA Persons are the beneficial
owners of
100% of the Membership Interests in Marsupial and
Marsupial-II and own all such Membership Interests
free
and clear of all liens, charges, encumbrances,
restrictions and commitments of any kind.
(c) No Trading By Stockholder Entities
Except as set forth on Schedule 9.1(c), neither
Marsupial nor Marsupial-II have any assets,
liabilities
or employees. Except as set forth on Schedule
9.1(c),
neither Marsupial nor Marsupial-II has carried on
business or otherwise traded between the date of
its
incorporation and the Closing Date.
(d) Ability to Carry Out the Agreement
Except as disclosed on Schedule 9.1(d), none of the
DGHA
Persons, Marsupial or Marsupial-II is subject to or
bound by any provision of:
(i) any law, statute, rule, regulation, or judicial or
administrative decision;
(ii) any articles or certificate or incorporation or by
laws;
(iii) any mortgage, deed of trust, lease, note,
stockholders' agreement, partnership agreement,
bond, indenture, license, permit, trust; or
(iv) any judgment, order, writ, injunction, or decree
of any court, governmental body, administrative
agency or arbitrator,
that would prevent or be violated by or under which
there
would be a default as a result of, nor is there
required
any consent of any Person under any contract
or agreement required to be disclosed on and actually
disclosed on Schedule 9.1(d)which has not been obtained
for, the execution, delivery and performance by the
DGHA
Persons of this agreement and the transactions
contemplated hereby, other than any violations,
defaults
or failures to obtain consents which have not had and
are not reasonably likely to have a Material Adverse
Effect or a material adverse effect on the ability of
the DGHA Persons to perform its obligations under this
agreement.
(e) Brokers and Intermediaries
None of the DGHA Persons, Marsupial or Marsupial-II has
employed any broker, finder, adviser or intermediary in
connection with the transactions contemplated by this
agreement which would be entitled to a broker's,
finder's or similar fee or commission in connection
therewith or upon the consummation thereof.
(f) Tax Matters
Except as disclosed on Schedule 9.1(f):
(i) all Returns required to be filed in respect of the
business of Marsupial and Marsupial-II on or prior
to the Closing Date have been or will be filed
when
due in timely fashion and were or will be correct
and complete in all material respects;
(ii) all Taxes shown on such Returns that are due on or
prior to the Closing Date have been or will be
paid
when due in timely fashion or adequate accruals
have been or will be established for the payment
of
such Taxes;
(iii) to the knowledge of the DGHA Persons, there
is no action, suit, proceeding, investigation,
audit or claim now pending regarding any Taxes
relating to the income, properties or operations
of
the business of Marsupial or Marsupial-II;
(iv) there are no agreements for the extension of
the
time for assessment of any Taxes relating to
the
income, properties or operations of the
businesses
of Marsupial or Marsupial-II; and
(v) all Taxes relating to the income, properties
or
operations of the business of Marsupial or
Marsupial-II, which Taxes Marsupial or
MarsupialII
is required by law to withhold or collect
have been
duly withheld or collected, and have been
timely
paid over to the proper authorities to the
extent
due and payable.
9.2 Representations and Warranties of Prudential
Except as otherwise set forth in any Schedule hereto,
Prudential represents and warrants to the Buyer:
(a) Organisation of Soda Ash; Authority
Soda Ash is a corporation duly organised, validly
existing and in good standing under the laws of
its
jurisdiction of organisation and has all the
requisite
corporate power and authority to carry on its
business
as now being conducted and to own and use the
properties
owned and used by it. Except as disclosed on
Schedule
9.2(a), Soda Ash is qualified to do business in
each
jurisdiction in which the nature of its business
requires it to be so qualified, except to the
extent the
failure to so qualify has not had, and would not
reasonably be expected to have, a Material Adverse
Effect. The execution and delivery of this
agreement
and the consummation of the transactions
contemplated
hereby have been duly authorised by all requisite
corporate action on the part of Prudential.
Assuming the
due authorisation, execution and delivery hereof
by the
parties hereto other than Prudential, this
agreement has
been duly executed and delivered by Prudential and
constitutes the valid, binding and enforceable
obligation of Prudential, except as such
enforceability
may be limited by bankruptcy, insolvency,
reorganisation
or similar laws affecting creditors' rights
generally or
by general equitable principles.
(b) Capitalisation of Soda Ash
The authorised, issued and outstanding capital
stock of
Soda Ash is set forth on Schedule 9.2(b). All of
the
issued and outstanding shares of capital stock of
Soda
Ash are duly authorised, validly issued, fully
paid and
non-assessable. Except as disclosed on
Schedule 9.2(b), there are no outstanding options,
warrants or other rights of any kind to acquire
any
additional shares of capital stock of Soda Ash or
securities convertible into or exchangeable for or
which
otherwise confer on the holder thereof any right
to
acquire any such additional shares, nor is Soda
Ash
committed to issue any such option, warrant, right
or
security. Prudential is the beneficial owner of
100% of
the issued capital of Soda Ash and owns all such
shares
free and clear of all liens, charges,
encumbrances,
restrictions and commitments of any kind.
(c) No Trading By Soda Ash
Except as set forth on Schedule 9.2(c) Soda Ash has no
assets, liabilities or employees. Except as set forth
on Schedule 9.2(c), Soda Ash has not carried on
business
or otherwise traded between the date of its
incorporation and the Closing Date.
(d) Ability to Carry Out the Agreement
Except as disclosed on Schedule 9.2(d), none of
Prudential or Soda Ash is subject to or bound by any
provision of:
(i) any law, statute, rule, regulation, or judicial or
administrative decision;
(ii) any articles or certificate or incorporation or by
laws; and
(iii) any mortgage, deed of trust, lease, note,
stockholders' agreement, partnership agreement,
bond, indenture, license, permit, trust; or any
judgement, order, writ, injunction, or decree of
any
court, governmental body, administrative
agency or arbitrator,
that would prevent or be violated by or under which
there would be a default as a result of, nor is there
required any consent of any Person under any contract
or
agreement required to be disclosed on and actually
disclosed on Schedule 9.2(d) which has not been
obtained
for, the execution, delivery and performance by
Prudential of this agreement and the transactions
contemplated hereby, other than any violations,
defaults
or failures to obtain consents which have not had and
are not reasonably likely to have a Material Adverse
Effect or a material adverse effect on the ability of
Prudential to perform its obligations under this
agreement.
(e) Brokers and Intermediaries
None of Prudential or Soda Ash has employed any broker,
finder, adviser or intermediary in connection with the
transactions contemplated by this agreement which would
be entitled to a broker's finder's or similar fee or
commission in connection therewith or upon the
consummation thereof.
(f) Tax Matters
Except as disclosed on Schedule 9.2(f):
(i) all Returns required to be filed in respect of the
business of Soda Ash on or prior to the Closing
Date have been or will be filed when due in timely
fashion and were or will be correct and complete
in
all material respects;
(ii) all Taxes shown on such Returns that are due on or
prior to the Closing Date have been or will be
paid
when due in timely fashion or adequate accruals
have been or will be established for the payment
of
such Taxes;
(iii) to the knowledge of Prudential, there is no
action, suit, proceeding, investigation,
audit or
claim now pending regarding any Taxes
relating to
the income, properties or operations of the
business of Soda Ash;
(iv) there are no agreements for the extension of
the
time for assessment of any Taxes relating to
the
income, properties or operations of the
businesses
of Soda Ash; and
(v) all Taxes relating to the income, properties
or
operations of the business of Soda Ash, which
Taxes
Soda Ash is required by law to withhold or
collect
have been duly withheld or collected, and
have been
timely paid over to the proper authorises to
the
extent due and payable.
9.3 Representations and Warranties of Search
Except as otherwise set forth in any Schedule hereto,
Search
represents and warrants to the Buyer:
(a) Organisation of Search; Authority
Search is a corporation duly organised, validly
existing
and in good standing under the laws of its
jurisdiction
of organisation and has all the requisite
corporate
power and authority to carry on its business as
now
being conducted and to own and use the properties
owned
and used by it. The execution and delivery of this
agreement and the consummation of the transactions
contemplated hereby have been duly authorised by
all
requisite corporate action on the part of Search.
Assuming the due authorisation, execution and
delivery
hereof by the parties hereto other than Search,
this
agreement has been duly executed and delivered by
Search
and constitutes the valid, binding and enforceable
obligation of Search, except as such
enforceability may
be limited by bankruptcy, insolvency,
reorganisation or
similar laws affecting creditors' rights generally
or by
general equitable principles. Search is the
beneficial
owner of the Search Company Shares and owns all
such
shares free and clear of all liens, charges,
encumbrances, restrictions and commitments of any
kind.
(b) Ability to Carry Out the Agreement
Except as disclosed on Schedule 9.3(b), Search is
not
subject to or bound by any provision of:
(i) any law, statute, rule, regulation, or
judicial or
administrative decision;
(ii) any articles or certificate or incorporation
or by
laws; and
(iii) any mortgage, deed of trust, lease,
note,
stockholders' agreement, partnership
agreement,
bond, indenture, license, permit, trust; or
any
judgement, order, writ, injunction, or decree
of any
court, governmental body, administrative
agency or arbitrator,
that would prevent or be violated by or under
which
there would be a default as a result of, nor is
there
required any consent of any Person under any
contract or
agreement required to be disclosed on and actually
disclosed on Schedule 9.3(b) which has not been
obtained
for, the execution, delivery and performance by
Search
of this agreement and the transactions
contemplated
hereby, other than any violations, defaults or
failures
to obtain consents which have not had and are not
reasonably likely to have a Material Adverse
Effect or a
material adverse effect on the ability of Search
to
perform its obligations under this agreement.
(c) Brokers and Intermediaries
Search has not employed any broker, finder,
adviser or
intermediary in connection with the transactions
contemplated by this agreement which would be
entitled
to a broker's finder's or similar fee or
commission in
connection therewith or upon the consummation
thereof.
9.4 Representations and Warranties of the Manager
Shareholders
Except as otherwise set forth in any Schedule hereto,
each of
the Manager Shareholders represents and warrants to the
Buyer:
(a) Authority; Manager Shareholders
Each of the Manager Shareholders represents and
warrants
to the Buyer that the execution and delivery of
this
agreement and the consummation of the transactions
contemplated hereby have been duly authorised by
all
requisite corporate or other action on the part of
the
Manager Shareholders. Assuming the due
authorisation,
execution and delivery hereof by parties hereto
other
than the Manager Shareholders, this agreement has
been
duly executed and delivered by the Manager
Shareholders
and constitutes the valid, binding and enforceable
obligations of the Manager Shareholders, except as
such
enforceability may be limited by bankruptcy,
insolvency,
reorganisation or similar laws affecting
creditors'
rights generally or by general equitable
principles.
Each of the Manager Shareholders set forth on
Schedule 2
is the beneficial owner of the Manager Company
Shares as
set forth on Schedule 2 and owns all such shares
free
and clear of all liens, charges, encumbrances,
restrictions and commitments of any kind.
(b) Ability to Carry Out the Agreement
Except as disclosed on Schedule 9.4(b), none of
the
Manager Shareholders is subject to or bound by
any
provision of:
(i) any law, statute, rule, regulation, or
judicial or
administrative decision;
(ii) any articles or certificate or incorporation
or by
laws; and
(iii) any mortgage, deed of trust, lease,
note,
stockholders' agreement, partnership
agreement,
bond, indenture, license, permit, trust; or
any
judgement, order, writ, injunction, or decree
of any
court, governmental body, administrative
agency or arbitrator,
that would prevent or be violated by or under
which
there would be a default as a result of, nor is
there
required any consent of any Person under any
contract or
agreement required to be disclosed on and actually
disclosed on Schedule 9.4(b) which has not been
obtained
for the execution, delivery and performance by
each of
the Manager Shareholders of this agreement and the
transactions contemplated hereby, other than any
violations, defaults or failures to obtain
consents
which have not had and are not reasonably likely
to have
a Material Adverse Effect or a material adverse
effect
on the ability of each of the Manager Shareholders
to
perform its obligations under this agreement.
(c) Brokers and Intermediaries
Other than Chase Securities Inc., none of the
Manager
Shareholders has employed any broker, finder,
adviser or
intermediary in connection with the transactions
contemplated by this agreement which would be
entitled
to a broker's finder's or similar fee or
commission in
connection therewith or upon the consummation
thereof.
Any such fees due to Chase Securities Inc shall be
paid
by the Company.
9.5 Disclaimer of Other Representations and Warranties;
Knowledge; Disclosure
(a) None of Vendors makes, or has made, any
representations
or warranties relating to the Stockholder
Entities, the
Company, any Subsidiary, or the business of the
Stockholder Entities, the Company or any
Subsidiary or
otherwise in connection with the transactions
contemplated hereby other than those expressly set
forth
herein which are made by the Vendors. Without
limiting
the generality of the foregoing, none of the
Vendors has
made, or shall be deemed to have made, any
representations or warranties in the Information
Memorandum relating to the businesses of the
Stockholder
Entities, the Company and its Subsidiaries
prepared by
Chase Securities Inc. on behalf of the Company and
supplied to the Buyer prior to the date hereof
(the
Information Memorandum) or in any presentation of
the
businesses of the Stockholder Entities, the
Company and
the Subsidiaries in connection with the
transactions
contemplated hereby, and no statement contained in
the
Information Memorandum or made in any such
presentation
shall be deemed a representation or warranty
hereunder
or otherwise. It is understood that any cost
estimates,
projections or other predictions, any data, any
financial information or any memoranda or offering
materials or presentations, including but not
limited to
the Information Memorandum, are not and shall not
be
deemed to be or to include representations or
warranties
of the Vendors. No Person has been authorised by
the
Vendors to make any representation or warranty
relating
to the Company or any Subsidiary, the business of
any
Stockholder Entity, Company or any Subsidiary or
otherwise in connection with the transactions
contemplated hereby and, if made, such
representation or
warranty must not be relied upon as having been
authorised by the Vendors.
(b) Whenever a representation or warranty made by the
Vendors herein refers to the knowledge of the
Vendors,
such knowledge shall be deemed to consist only of
the
actual knowledge on the date hereof and on the
Closing
Date, as applicable, of those persons listed on
Schedule
9.5.
(c) Notwithstanding anything to the contrary contained
in
this agreement or in any of the Schedules, any
information disclosed in one Schedule shall be
deemed to
be disclosed in all Schedules. Certain
information set
forth in the Schedules is included solely for
informational purposes and may not be required to
be
disclosed pursuant to this agreement. The
disclosure of
any information shall not be deemed to constitute
an
acknowledgement that such information is required
to be
disclosed in connection with the representations
and
warranties made by the Company in this agreement
or that
it is material, nor shall such information be
deemed to
establish a standard of materiality.
9.6 Representations and Warranties
The representations and warranties of the Vendors made
hereunder shall be true in all material respects at and
as of
the Closing Date, with the same force and effect as
though
made at and as of the Closing Date, except for changes
permitted or contemplated by this agreement and except
to the
extent that any representation and warranty is made as
of a
specified date, in which case such representation and
warranty shall be true in all material respects as of
such
date.
10. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Vendor that:
10.1 Organisation and Authority of the Buyer
The Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the
State of
Delaware, with the corporate power and authority to
enter
into this agreement and to perform its obligations
hereunder.
The execution and delivery of this agreement and the
consummation of the transactions contemplated hereby
have
been duly authorised by all requisite corporate action
on the
part of the Buyer. This agreement has been duly
executed and
delivered by the Buyer and constitutes the valid,
binding and
enforceable obligation of the Buyer, subject to
applicable
bankruptcy, reorganisation, insolvency, moratorium and
other
laws affecting creditors' rights generally from time to
time
in effect and to general equitable principles.
10.2 Ability to Carry Out the Agreement
The Buyer is not subject to or bound by any provision
of:
(a) any law, statute, rule, regulation or judicial or
administrative decision;
(b) any articles or certificate of incorporation or by-
laws;
(c) any mortgage, deed of trust, lease, note,
stockholders'
agreement, partnership agreement, bond, indenture,
or
other material instrument or agreement; and
(d) any judgment, order, writ, injunction or decree of
any
court, governmental body, administrative agency or
arbitrator,
that would prevent or be violated by or under which
there
would be a conflict, breach or default as a result of,
nor is
the consent required of any Person under any material
agreement which has not been obtained for, the
execution,
delivery and performance by the Buyer of this agreement
and
the transactions contemplated hereby other than any
violations, defaults or failures to obtain consents
which
have not had a material adverse effect on the ability
of the
Buyer to perform its obligations under this agreement.
10.3 Consent and Approvals
Except as disclosed on Schedule 10.3, no consent,
approval,
order or authorisation of, or registration, declaration
or
filing with, any Governmental Entity, is required by or
with respect to the Buyer or any of its Subsidiaries in
connection with the execution and delivery of this
agreement by the Buyer or the consummation by the Buyer
of
the transactions contemplated hereby, the failure of
which
to obtain would have a material adverse effect on the
ability of the Buyer to enter into this agreement and
to
consummate the transactions contemplated hereby.
10.4 Financial Ability to Perform
The Buyer has, or has access to, sufficient funds to
pay the
aggregate Purchase Price on the terms and conditions
contemplated by this agreement. The Buyer acknowledges
and
agrees that the Buyer's performance of its obligations
under
this agreement is not in any way contingent upon the
availability of financing to the Buyer.
10.5 Brokers and Intermediaries
The Buyer has not employed any broker, finder, adviser
or
intermediary other than Xxxxxxx Xxxxx Xxxxxx in
connection
with the transactions contemplated by this agreement
which
would be entitled to a broker's, finder's, or similar
fee or
commission in connection therewith or upon the
consummation
thereof. Any such fees due Xxxxxxx Xxxxx Barney shall
be
paid by Buyer.
10A. BUYER'S OPTION
10A.1 Exercise of Option
If the Buyer exercises the option in respect of IMC
Australia
Merger Sub, the representations and warranties set
forth in
clause 10 will be deemed to apply (as appropriate) to
IMC
Australia Merger Sub in addition to the Buyer.
11. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY AND THE
BUYER
11.1 Access and Information
The Company and its Subsidiaries shall permit the Buyer
and
its representatives after the date of this agreement to
have
reasonable access during normal business hours, upon
reasonable advance notice, to the properties,
contracts,
books and records of the Company and its Subsidiaries
for the
purpose of verifying the representations and warranties
of
the Company hereunder, provided that such access shall
be
conducted by the Buyer and its representatives in such
a
manner as not to interfere unreasonably with the
businesses
or operations of the Company or any Subsidiary. All
information provided to the Buyer pursuant hereto shall
be
subject to that certain confidentiality agreement dated
21
March 1997 executed by the Buyer (the Confidentiality
Agreement). The Buyer shall notify the Company
promptly upon
its discovery of any information which constitutes or
would
indicate a material breach by the Company of any
representation, warranty or agreement of the Company
hereunder.
11.2 Regulatory Filings
Each of the parties hereto will furnish to the other
party
hereto such necessary information and reasonable
assistance
as such other party may reasonably request in
connection with
its preparation of necessary filings or submissions to
any
Governmental Entity.
11.3 Conduct of Business
Prior to the Closing, and except as otherwise expressly
contemplated by this agreement, the Company shall
operate
the businesses conducted by it in all material respects
in
the ordinary and usual course and cause the business
operated by its Subsidiaries to be operated in all
material
respects in the ordinary and usual course.
11.4 Dividends; Changes in Stock
The Company shall not, nor shall it permit any of its
Subsidiaries to (other than in the case of wholly owned
Subsidiaries):
(a) declare or pay any dividends on or make other
distributions in respect of any of its capital
stock or
shares (other than as contemplated by clause
6.3(b));
(b) split, combine or reclassify any of its capital
stock or
shares or issue or authorise or propose the
issuance of
any other securities in respect of, in lieu of or
in
substitution for shares of its capital stock or
shares;
(c) repurchase, redeem or otherwise acquire (other
than as
required pursuant to the HCA Equity Documents), or
permit any subsidiary to purchase or otherwise
acquire,
any share of its capital stock or shares issue)
deliver
or sell, or authorise or propose the issuance,
delivery
or sale of, any share of its capital stock or
shares of
any class or any securities convertible into, or
any
rights, warrants or options to acquire, any such
shares
or convertible securities; or
(d) enter into any transaction with any person listed
on
Schedule 8.21 which results in an increase in
amounts
otherwise currently being paid by the Company or
any
Subsidiary to or for the benefit of any such
person, in
each case except as otherwise provided for or
permitted
by this agreement.
11.5 Satisfaction of Conditions
(a) Each of the Buyer and the Vendor will take all
reasonable actions necessary to comply promptly
with all
legal requirements which may be imposed on itself
with
respect to the agreement.
(b) Subject to the terms and conditions of this
agreement,
each of the parties hereto agrees to use its
reasonable
best efforts to take, or cause to be taken, all
action
and to do, or cause to be done, all things
necessary,
proper or advisable under applicable laws and
regulations to consummate and make effective the
transactions contemplated by this agreement,
including
full cooperation with the other party.
(c) Each of the Buyer and the Vendor will, and will
cause
the Stockholder Entities and the Company and its
Subsidiaries to, take all reasonable actions
necessary
to obtain (and will cooperate with each other in
obtaining) any consent, authorisation, order or
approval
of, or any exemption by, any Governmental Entity
required to be obtained by the Buyer and the
Company or
any of their Subsidiaries in connection with the
taking
of any action contemplated by this agreement.
11.6 Employee Matters
(a) The Buyer shall not, at any time prior to 180
days
after the Closing Date, terminate the employment
of any
employee of the Company or any Subsidiary without
complying fully with the requirements of any
applicable
law, award, enterprise bargaining agreement or
arrangement with respect to such termination.
(b) During the period from the Closing Date through
the
second anniversary of the Closing Date, the Buyer
shall
maintain, or cause to be maintained the employee
benefit
plans, policies and arrangements described on
Schedule
11.6 (the Company Benefits), and take such other
actions
described therein so as to provide benefits to the
Employees which are in the aggregate substantially
equivalent to, and provided pursuant to
substantially
equivalent terms and conditions as, the Company
Benefits
as in effect immediately prior to the Closing
Date,
provided, however, that, subject to the Buyer's
obligations to provide benefits to the Employees
which
are in the aggregate substantially equivalent to,
and
provided pursuant to substantially equivalent
terms and
conditions as, the Company Benefits as in effect
immediately prior to the Closing Date, the Buyer
shall
not be obligated to maintain any specific employee
benefit plan, policy or arrangement to the extent
so
doing would be in violation of applicable law.
11.7 Tax Matters
(a) Notwithstanding clause 13.1, the Buyer shall be
liable
for, and shall pay when due, any transfer, gains,
documentary, sales, use, registration, stamp,
value
added or other similar Taxes payable in respect of
this
agreement or by reason of any instrument or
transactions
contemplated by this agreement or attributable to
the
sale, transfer or delivery of the Sale Stock
hereunder,
(other than any capital gains tax
or income tax payable by any Vendor or Stockholder
Entity) and the Buyer shall, at its own expense,
file
all necessary Tax returns and other documentation
with
respect to all such Taxes.
(b) After the Closing Date, the Buyer shall, and shall
cause
the Company and each Stockholder Entity to,
provide each
party hereto with such co-operation and
information
relating to the Company, each Subsidiary and each
Stockholder Entity as such party reasonably may
request
in filing any Return, amended Return or claim for
refund, determining any Tax liability or a right
to
refund of Taxes, or conducting or defending any
audit or
other proceeding in respect of Taxes. The Buyer
shall
cause the Company, each Subsidiary and each
Stockholder
Entity to retain all Returns, schedules and work
papers,
and all material records and other documents
relating
thereto, until the expiration of the statute of
limitations (and, to the extent notified by any
party,
any extensions thereof) of the taxable years to
which
such Returns and other documents relate and until
the
final determination of any Tax in respect of such
years.
Any information obtained under this
clause 11.7 shall be kept confidential, except as
may be
otherwise necessary in connection with filing any
Return, amended Return, or claim for refund,
determining
any Tax liability or right to refund of Taxes, or
in
conducting or defending any audit or other
proceeding in
respect of Taxes. Notwithstanding the foregoing,
neither the Buyer, nor any of its affiliates,
shall be
required unreasonably to prepare any document, or
determine any information not then in its
possession, in
response to a request under this clause 11.7.
11.8 Announcement
None of the parties will issue any press release or
otherwise
make any public statement with respect to this
agreement and
the transactions contemplated hereby without the prior
consent of the other parties to this agreement (which
consent
shall not be unreasonably withheld), except as may be
required by applicable law or stock exchange
regulation.
Notwithstanding anything in this clause 11.8 to the
contrary,
each party will, to the extent practicable, consult
with the
other parties to this agreement before issuing, and
provide
each other party the opportunity to review and comment
upon,
any such press release or other public statements with
respect to this agreement and the transactions
contemplated
hereby whether or not required by law.
12. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES; CERTAIN
ACKNOWLEDGMENTS
12.1 Non-survival of Representations and Warranties
None of the representations and warranties in this
agreement
or in any instrument delivered pursuant to this
agreement
shall survive the Effective Time and all such
representations
and warranties will be extinguished on Closing and none
of
the Company, any Subsidiary, any Stockholder Entity,
any
Vendor or any officer, director or employee,
stockholder or
shareholder shall be under any liability whatsoever
with
respect to any such representation or warranty after
such
time. This clause 12 shall not limit
any covenant or agreement of the parties which by its
terms
contemplates performance after the Effective Time.
12.2 Information
On or immediately prior to the Closing Date, the Buyer
shall
provide to the Company a certificate pursuant to which
the
Buyer will acknowledge each of the following:
(a) the Buyer has received all materials relating to
the
business of the Company and each Subsidiary which
it has
requested and has been afforded the opportunity to
obtain any additional information necessary to
verify
the accuracy of any such information or of any
representation or warranty made by the Company
hereunder
or to otherwise evaluate the merits of the
transactions
contemplated hereby; and
(b) the Company and its representatives have answered
to
the Buyer's satisfaction all enquiries that the
Buyer or
its representatives have made concerning the
business of
the Company and each Subsidiary or otherwise
relating to
the transactions contemplated hereby.
13. COSTS AND STAMP DUTY
13.1 Costs Generally
(a) The Company must bear and is responsible for all
costs
incurred by or on behalf of the Vendor in
connection
with the preparation, execution, Closing and
carrying
into effect of this agreement.
(b) The Buyer must bear and is responsible for its
own
costs in connection with the preparation,
execution,
Closing and carrying into effect of this
agreement.
14. LIQUIDATED DAMAGES
The parties hereto agree that, if the Effective Date
shall
not have occurred under the circumstances described
below,
because it is impossible to adequately measure actual
damages, in lieu of actual damages, the Company shall
be
entitled to liquidated damages in the amount of US$5
million
(the Liquidated Damages), which amount the parties
hereby
agree to be a reasonable amount under the circumstances
of
the transaction contemplated hereby. The Company
agrees and
acknowledges that, in the absence of the Buyer's fraud
or
wilful misconduct, such Liquidated Damages are in full
satisfaction of, and shall be in lieu of, any other
claim,
right, or other cause of action which the Company might
have
with respect to the circumstances described below, and
the
Company agrees that, in the absence of the Buyer's
fraud or
wilful misconduct, upon payment of such Liquidated
Damages,
the Company shall release Buyer from any and all such
claims.
The Liquidated Damages shall be payable to the Company
by
Buyer on the Final Termination Date if (x) the
Effective Time
shall not have occurred on or before the Final
Termination
Date, (y) the conditions set forth in Sections 5.2(a),
5.2(b), 5.2(d), 5.2(e), 5.2(f), 5.2(g)(iii), 5.2(h) and
5.2(j) (save that for the purposes of this section, the
reference in 5.2(j) to the Closing Date shall be deemed
to be
a reference to the Final Termination Date) shall not
have
been breached in any material respect as of the Final
Termination Date (other than, in the case of
Sections 5.2(d) and 5.2(e), with respect to antitrust
matters) and (z) the closing contemplated by Section
5.2(i)
shall not have occurred and the conditions set forth in
Sections 8.1, 8.2, 8.4, 8.5 and 8.6 of the Agreement
and Plan
of Merger shall not have been breached in any material
respect as of the Final Termination Date (other than,
in the
case of Sections 8.4 and 8.5, with respect to antitrust
matters).
15. NOTICES
15.1 Method of Giving Notices
A notice, consent, approval or other communication
(each a
Notice under this clause) under this agreement must be
signed
by or on behalf of the person giving it addressed to
the
person to whom it is to be given and:
(a) delivered to that person's address;
(b) sent by pre-paid air mail to that person's
address; or
(c) transmitted by facsimile to that person's address.
15.2 Time of Receip
A Notice given to a person in accordance with this
clause is
treated as having been given and received:
(a) if delivered to a person's address, by 3:00 pm on
the
day of delivery if a Business Day, otherwise on
the next
Business Day;
(b) if sent by pre-paid air mail, by the third
Business Day
after posting; or
(c) if transmitted by facsimile to a person's address
and a
correct and complete transmission report is
received, by
3:00 pm on the day of transmission if a Business
Day,
otherwise on the next Business Day.
References to days and times are references in all
cases to
days and times at the address of the recipient.
15.3 Address of Parties
For the purposes of this clause the address of a person
is
the address set out below or another address of which
that
person may from time to time give notice to each other
person:
Prudential Asset Management Asia Limited
Address: XX Xxx 00, Xxxxxxxxx Xxxxxxxx, Xxxx Xxxx,
Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
Facsimile: (000) 000 0000
Attention:
with a copy to: Prudential Asset Management Asia
Hong
Kong Limited
Address: 32nd floor, Xxxxxxxxx Xxxxx, 00 Xxxxxx
Xxxx,
Xxxx Xxxx
Facsimile: (000) 0000 0000
Attention: Xxxxxx Xxxx
Soda Ash (L) Bhd
Address: Suite 114A, 1st floor, Hotel Labuan, Xxxxx
Xxxxxxx
XX Xxx 00000, 00000 Xxxxxx, Xxxxxxxx
DGHA Persons and Trusts
Address: c/- D Xxxxxx Xxxxxx & Associates Inc.,
32nd floor, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxxxxx Xxxxxx of America
Facsimile: (000) 000 0000
Attention: Xxxxxx X Xxxxxxxxxx
Marsupial LLC
Address: c/- D Xxxxxx Xxxxxx & Associates Inc.,
32nd floor, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxxxxx Xxxxxx of America
Facsimile: (000) 000 0000
Attention: Xxxxxx X Xxxxxxxxxx
Marsupial-II LLC
Address: c/- D Xxxxxx Xxxxxx & Associates Inc.,
32nd floor, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxxxxx Xxxxxx of America
Facsimile: (000) 000 0000
Attention: Xxxxxx X Xxxxxxxxxx
Search Investment NV
Address: c/- 0xx Xxxxx Xxxxx-xxxx Xxxxx, 00 Xxx
Xxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx
Facsimile: (000) 0000 0000
Attention: Xxxxx Xxx
Manager Shareholders
Address: Xxxxxx Xxxx, Xxxxxxx,
Xxxxx Xxxxxxxxx
Facsimile: (000) 0000 0000
Attention: Xxxxx Xxxx
Buyer
Address: 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx,
Xxxxxx
Xxxxxx of America
Facsimile: (000) 000 0000
Attention: Xxxxxxxx X Xxxxx, Esq.
Company
Address: Xxxxxx Xxxx, Xxxxxxx,
Xxxxx Xxxxxxxxx
Facsimile: (000) 0000 0000
Attention: Chief Executive Officer
16. GENERAL
16.1 Amendment
This agreement may only be amended or supplemented in
writing, signed by the parties.
16.2 Waiver
The non-exercise of or delay in exercising any power or
right of a party does not operate as a waiver of that
power
or right, nor does any single exercise of a power or
right
preclude any other or further exercise of it or the
exercise
of any other power or right. A power or right may only
be
waived in writing, signed by the party to be bound by
the
waiver.
16.3 Entire agreement
This agreement and the Agreement and Plan of Merger
constitute the entire agreement between the parties in
relation to its subject matter. No understanding,
arrangement or provision not expressly set out in this
agreement will bind the parties. Accordingly, all
correspondence, negotiations and other communications
between
the parties which precede this agreement are superseded
by
and merged in it.
16.4 Severability
Any provision in this agreement which is invalid or
unenforceable in any jurisdiction is to be read down
for the
purposes of that jurisdiction, if possible, so as to be
valid
and enforceable, and is otherwise capable of being
severed to
the extent of the invalidity or unenforceability,
without
affecting the remaining provisions of this agreement or
affecting the validity or enforceability of that
provision in
any other jurisdiction, unless it materially alters the
nature or any material term of this agreement.
16.5 No Assignment
No party may assign or transfer any of its rights or
obligations under this agreement without the prior
consent in
writing of all the other parties, other than as
contemplated
by this agreement.
16.6 Further Assurance
Each party must do, sign, execute and deliver and must
use
its reasonable best efforts to procure that each of its
employees and agents does, signs, executes and
delivers, all
deeds, documents, instruments and acts reasonably
required of
it or them by notice from another party to effectively
carry
out and give full effect to this agreement and the
rights and
obligations of the parties under it, both before and
after
Closing.
16.7 Counterparts
This agreement may be executed in any number of
counterparts
and all of those counterparts taken together constitute
one
and the same instrument.
16.8 Attorneys
Each attorney who executes this agreement on behalf of
a
party declares that the attorney has no notice of the
revocation or suspension by the grantor or in any
manner of
the power of attorney under the authority of which the
attorney executes this agreement and has no notice of
the
death of the grantor.
17. LAW AND JURISDICTION
17.1 Governing Law
This agreement is governed by the law in force in New
South
Wales.
17.2 Submission to Jurisdiction
The parties submit to the non-exclusive jurisdiction of
the
courts of New South Wales and any courts which may hear
appeals from those courts in respect of any proceedings
in
connection with this agreement.
17.3 Status of Prudential
Notwithstanding any other provision of this agreement,
the
parties hereby:
(a) acknowledge that XXXX is an exempted limited
partnership
established and registered under the laws of the
Cayman
Islands, including, but not limited to, the
Exempted
Limited Partnership Law, 1991 of the Cayman
Islands (the
ELP Law); and
(b) agree that, in accordance with such Cayman
Islands
laws, which laws shall be deemed by express choice
of
the parties to be incorporated into and form a
part of
this agreement for such purpose, the limited
partners of
XXXX shall not be liable, except as otherwise
provided
in the ELP Law, for any liabilities or obligations
incurred by Prudential, as the general partner of
XXXX,
under this agreement or pursuant to any claim,
action or
dispute relating to this agreement or any related
documents or matters.
EXECUTED as an agreement.
SIGNED BY, FOR AND ON BEHALF of
PRUDENTIAL ASSET MANAGEMENT ASIA LIMITED
as the General Partner of Prudential
Asia Private Equity Limited Partnership
in the presence of:
Signed by Witness Signed
Title
SIGNED BY, FOR AND ON BEHALF of
PRUDENTIAL ASSET MANAGEMENT
ASIA LIMITED as the manager of certain
assets of and attorneyin-fact for The
Prudential Insurance Company of America
in the presence of:
Signed by Witness Signed
Title
For and on behalf of DGHA Persons and the Trusts who hereby
accept the above terms and conditions and the above
obligations
to other parties to this agreement and undertake that the
signatory below has capacity and authority to sign on their
behalf and the signatory represents personally that he has
such
authority on behalf of the DGHA Persons and that he has no
notice
of revocation of any such authority and that he has the
authority
to execute this letter on behalf of such Trusts and to bind
such
Trusts and the trustees of such Trust and that no action may
be
taken by any such Trust in contravention of this letter.
Xxxxxx X. Xxxxxxxxxx
SIGNED BY, FOR AND ON BEHALF of
SEARCH INVESTMENT NV by its
authorised representative:
Signed
Title
THE COMMON SEAL of XXXXXX
CHEMICAL AUSTRALIA PTY LIMITED
(ACN 072 639 902) was affixed in the manner required by
its articles of association:
Director/Secretary Director
Name Please Print Name Please Print
MARSUPIAL L.L.C.
by
Name:
Position:
MARSUPIAL-II L.L.C.
by
Name:
Position:
SIGNED by SODA ASH (L) BHD (a
Company incorporated in
Malaysia with Registration No.
LL00648) by its authorised
representative:
PLEASE PRINT NAME
SIGNED for and on behalf of
CHAND XXXXX XXXXXX by its duly
appointed attorney who warrants
that the attorney has received
no notice of revocation of the
appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of XXX
XXXXXXXXX XXXXXX by its duly appointed attorney who
warrants that the attorney has received no notice of
revocation of the appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
XXXXXXX XXXXXX as trustees of the Calaby Family Trust by
its duly appointed attorney who warrants that the attorney
has received no notice of revocation of the appointment in
the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
XXXXX XXXXXXXX XXXXXX as
trustees of the Calaby Family Trust by its duly
appointed attorney who warrants that the attorney has
received no notice of revocation of the appointment in
the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
GRAEME N M GAUNT by its duly appointed attorney who
warrants that the attorney has received no notice of
revocation of the appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
XXXXXX X X XXXXX by its duly appointed attorney who
warrants that the attorney has received no notice of
revocation of the appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
XXXXXXX X XXXXXXXX by its duly appointed
attorney who warrants that the attorney
has received no notice of revocation of
the appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED for and on behalf of
XXXXXXXXX XXXXXXXX by its duly appointed attorney who
warrants that the attorney has received no notice of
revocation of the appointment in the presence of:
Witness Attorney
Name Please Print Name Please Print
Date of Power of Attorney
SIGNED by XXXXX XXXXXXXXX XXXX
in the presence of:
Witness
Name Please Print Name Please Print
IMC GLOBAL INC. by:
Name:
Position: Senior Vice President
