Exhibit 2.2
Dated 2 December 1997
VARIATION AGREEMENT
BHP NOMINEES INVESTMENTS
NO. 3 PTY LIMITED
("Vendor")
THE BROKEN HILL
PROPRIETARY COMPANY
LIMITED
("BHP")
KOPPERS INDUSTRIES, INC.
("Purchaser")
KOPPERS AUSTRALIA PTY
LIMITED ("Company")
CONTINENTAL CARBON
AUSTRALIA PTY LIMITED
("Continental Carbon")
KAP INVESTMENTS, INC.
("KAP Investments")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (000) 0000 0000
Fax (000) 0000-0000
DX ICI Melbourne
Ref RPL JA
XXX CORP/029097.01
VARIATION AGREEMENT
Date: 2 December 1997
Parties: BHP NOMINEES INVESTMENTS NO. 3 PTY LIMITED (ACN
006 528 678) having its registered office at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000 ("Vendor")
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN 004 028 077) having its registered office at 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000 ("BHP")
KOPPERS INDUSTRIES, INC. of 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx ("Purchaser")
KOPPERS AUSTRALIA PTY LIMITED (ACN 000 566 629) having its
registered office at 00 Xxxx Xxxxxx, Xxxxx Xxxxxx ("Company")
CONTINENTAL CARBON AUSTRALIA PTY LIMITED
(ACN 000 486 966) having its registered office at 00 Xxxx
Xxxxxx, Xxxxx Xxxxxx ("Continental Carbon")
KAP INVESTMENTS, INC. a Delaware corporation ("KAP
Investments")
Recitals:
A. BHP, the Vendor, the Purchaser, the Company, Continental Carbon
and KAP Investments are each party to an Agreement for Sale of
Shares dated 8 October 1997 under which the Vendor agreed to
sell and the Purchaser agreed to purchase, the whole of the
Vendor's interest in the Company, being 6,187,500 A Class
shares of $1.00 each in the capital of the Company ("Share Sale
Agreement")
B. The parties wish to vary the provisions of the Share Sale
Agreement in accordance with this agreement.
Operative provisions:
1 PURPOSE AND INTERPRETATION
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1.1 This agreement sets out the terms and conditions on which the
parties agree to vary the Share Sale Agreement.
1.2 Unless otherwise defined in this agreement, capitalised terms
used in this agreement shall have the meanings given to them
in the Share Sale Agreement.
1.3 In this agreement unless the contrary intention appears
(a) the singular includes the plural and vice versa; and
(b) a reference to an agreement or another instrument
includes any variation or replacement of either of them;
and
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(c) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or
replacements of any of them; and
(d) the word person includes a firm, body corporate,
unincorporated association or an authority, and
(e) a reference to a person includes the person's
executors, administrators, successors, substitutes
(including, without limitation, persons taking by
novation), and assigns.
1.4 Headings are included for convenience and do not affect the
interpretation of this agreement.
2 VARIATION
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2.1 The parties agree that the Share Sale Agreement shall be
varied in the manner set out in the Schedule. The variations
effected by this agreement shall be deemed to have taken
effect on and from the date of completion of the Share Sale
Agreement ("Effective Date").
2.2 The Share Sale Agreement shall be read and construed and
given full force and effect on and from the Effective Date as
if the amendments set out in the Schedule were made to the
Share Sale Agreement.
2.3 In all respects other than as set out in clauses 2.1 and 2.2,
the parties expressly confirm and ratify the terms of the
Share Sale Agreement.
3. Counterparts
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3.1 This agreement may be executed in, and consist of, a number
of counterparts. All counterparts (including executed
counterparts received by facsimile) taken together constitute
one and the same instrument.
EXECUTED as an agreement.
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Schedule
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1 Rectification of name
1.1 Each reference to "BHP Nominees No. 3 Pty. Ltd (ACN 006 528 678)" and the
"Vendor" in the Share Sale Agreement, including without limitation the
references to "BHP" Nominees No. 3 Pty Ltd" in the execution clause, first
page and front cover, is taken to be a reference to "BHP Nominees
Investments No. 3 Pty Limited (ACN 006 528 678)"
2 Variations to clause 8.3
2.1 Amendment to clause 8.3 by inserting:
"(f) For the avoidance of doubt, where the Company makes a claim for one
or more items under this clause 8.3, Koppers Coal Tar is not
entitled to make a claim for the same item or items under clause 12
of the Coal Tar Contract (and vice versa), and BHP's aggregate
maximum liability under clause 12 of the Coal Tar Contract and
clause 8.3(c) of this agreement is A$9 million."
3 Variations to clause 8.4
3.1 Amendment to clause 8.4(a) by inserting the phrase "Koppers Coal Tar"
after the words "Continental Carbon", and inserting the words "of this
agreement or clause 12 of the Coal Tar Contract" after the words "clauses
8.2 or 8.3".
3.2 Amendment to clause 8.4(b) by inserting the phrase "or Koppers Coal Tar"
after the words "the Company" wherever occurring, and inserting the words
"of this agreement or clause 12 of the Coal Tar Contract" after the phrase
"clauses 8.2 or 8.3" wherever occurring.
3.3 Amendment to clause 8.4(c) by inserting the phrase "or Koppers Coal Tar"
after the words "the Company", and inserting the phrase "of this agreement
or clause 12 of the Coal Tar Contract" after the words "clauses 8.2 or
8.3".
3.4 Amendment to clause 8.4(d) by inserting the phrase "of this agreement or
clause 12 of the Coal Tar Contract" after the phrase "clauses 8.2 or 8.3"
wherever occurring.
4 Variations to clause 8.5
4.1 Amendment to clause 8.5(d) by substituting for the existing words "12
year term" the words "10 year term".
5 Variations to clause 8.11
5.1 Amendment to clause 8.11 by inserting the words "(other than the Coal Tar
Contract)" after the words "Bodies Corporate" second appearing and
deleting after the words "are amended" the words "on or prior to
Completion".
6 Superannuation
6.1 Amendment to clause 9.1 by inserting the words "or such later date agreed
between the Vendor and the Purchaser" after the words "clause 9.4" in the
definition of "Payment Date".
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6.2 Amendment to clause 9.1 by deleting the words "accept the Purchaser's
invitation to transfer to" in the definition of "Transferring Members" and
substituting for them the words "become members of
6.3 Amendment to clause 9.2 by inserting the words "unless the Purchaser's
Fund is a successor fund as defined in the Superannuation Industry
(Supervision) Regulations, in which case the Purchaser must do all things
within its power to cause the employees to join the Purchaser's Fund with
effect from the Completion Date" after the words "Completion Date" fourth
appearing.
6.4 Amendment to clause 9.3 by deleting the words "accept the Purchaser's
invitation to transfer to" and substituting for them the word "join".
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Execution page
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SIGNED by )
as attorney for BHP NOMINEES )
INVESTMENTS NO. 3 PTY )
LIMITED (ACN 006 628 678) under )
power of attorney dated 1 October )
1997 in the presence of: )
)
)
)
.................................. )
Signature of witness )
)
)
) /s/ X. X. Xxxxx
.................................. ) ....................................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of revocation
000 Xxxxxxx Xxxxxx Xxxxxxxxx ) of the power of attorney
.................................. )
Address of witness )
)
)
Lawyer )
.................................. )
Occupation of witness )
)
)
SIGNED by )
as attorney for THE BROKEN HILL )
PROPRIETARY COMPANY )
LIMITED (ACN 004 028 077) under )
power of attorney dated 1 October )
1997 in the presence of: )
)
)
)
.................................. )
Signature of witness )
)
)
) /s/ X. X. Xxxxx
.................................. ) ....................................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of revocation
000 Xxxxxxx Xx. Xxxxxxxxx ) of the power of attorney
.................................. )
Address of witness )
)
)
Lawyer )
.................................. )
Occupation of witness )
6
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SIGNED by Xxxxxx X. Xxxxxx )
as attorney for KOPPERS )
INDUSTRIES, INC. under power of )
attorney dated 1 Dec 1997 in the )
presence of: )
)
)
/s/ A. Cherry )
.................................. )
Signature of witness )
)
)
Xxxx Xxxxxx ) /s/ Xxxxxx X. Xxxxxx
.................................. ) ....................................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of revocation
00 Xxx Xx., Xxxxxxxx 0000 ) of the power of attorney
.................................. )
Address of witness )
)
)
Company Secretary )
.................................. )
Occupation of witness )
)
)
SIGNED by Xxxxxx X. Xxxxxx )
as attorney for KOPPERS AUSTRALIA )
PTY LIMITED (ACN 000 566 629) )
under power of attorney dated 2 Dec )
1997 in the presence of: )
)
)
/s/ A. Cherry )
.................................. )
Signature of witness )
)
)
Xxxx Xxxxxx ) /s/ Xxxxxx X. Xxxxxx
.................................. ) ....................................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of revocation
00 Xxx Xx., Xxxxxxxx 0000 ) of the power of attorney
.................................. )
Address of witness )
)
)
Company Secretary )
.................................. )
Occupation of witness )
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SIGNED by Xxxxxx X. Xxxxxx )
as attorney for CONTINENTAL )
CARBON AUSTRALIA PTY )
LIMITED (ACN 000 486 966) under )
power of attorney dated 2 Dec 1997 )
in the presence of: )
)
)
/s/ A. Cherry )
.................................. )
Signature of witness )
)
)
Xxxx Xxxxxx ) /s/ Xxxxxx X. Xxxxxx
.................................. ) ....................................
Name of witness (block letters) ) By executing this agreement the
) attorney states that the attorney
) has received no notice of revocation
00 Xxx Xx., Xxxxxxxx 0000 ) of the power of attorney
.................................. )
Address of witness )
)
)
Company Secretary )
.................................. )
Occupation of witness )
)
)
SIGNED by Xxxxxx X. Xxxxxx )
as attorney for KAP INVESTMENTS, )
INC. in the presence of: )
)
)
/s/ A. Cherry )
.................................. )
Signature of witness )
)
)
Xxxx Xxxxxx ) /s/ Xxxxxx X. Xxxxxx
.................................. ) ....................................
Name of witness (block letters) )
)
)
00 Xxx Xx., Xxxxxxxx 0000 )
.................................. )
Address of witness )
)
)
Company Secretary )
.................................. )
Occupation of witness )
