exv10w1



 





Exhibit 10.1









EXECUTION
COPY




SALE OF SHARES AND CLAIMS AGREEMENT




between




THERMADYNE INDUSTRIES, INC.




and




THERMAWELD INDUSTRIES (PROPRIETARY) LIMITED




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1.

	 	INTERPRETATION
	 	 	4	 
	 
	 	 	 	 	 	 
	2.

	 	CONDITIONS
	 	 	11	 
	 
	 	 	 	 	 	 
	3.

	 	PURCHASE AND SALE
	 	 	12	 
	 
	 	 	 	 	 	 
	4.

	 	PURCHASE PRICE, APPORTIONMENT
AND PAYMENT
	 	 	13	 
	 
	 	 	 	 	 	 
	5.

	 	INTERIM PERIOD
	 	 	15	 
	 
	 	 	 	 	 	 
	6.

	 	DELIVERY AND CLOSING
	 	 	16	 
	 
	 	 	 	 	 	 
	7.

	 	WARRANTIES, RELEASE FROM DISCLOSED GUARANTEES,
INDEMNITIES AND CLAIM LIMITATIONS
	 	 	18	 
	 
	 	 	 	 	 	 
	8.

	 	FUNDING
	 	 	25	 
	 
	 	 	 	 	 	 
	9.

	 	TRADING NAME
	 	 	25	 
	 
	 	 	 	 	 	 
	10.

	 	CHANGE OF NAME
	 	 	26	 
	 
	 	 	 	 	 	 
	11.

	 	ASSISTANCE
	 	 	26	 
	 
	 	 	 	 	 	 
	12.

	 	ANNOUNCEMENTS
	 	 	26	 
	 
	 	 	 	 	 	 
	13.

	 	CONFIDENTIALITY
	 	 	27	 
	 
	 	 	 	 	 	 
	14.

	 	GOVERNING LAW AND DISPUTE
RESOLUTION
	 	 	28	 
	 
	 	 	 	 	 	 
	15.

	 	BREACH
	 	 	31	 
	 
	 	 	 	 	 	 
	16.

	 	GENERAL
	 	 	32	 
	 
	 	 	 	 	 	 
	17.

	 	ADDRESSES FOR LEGAL PROCESS AND
NOTICES
	 	 	34	 
	 
	 	 	 	 	 	 
	18.

	 	COSTS
	 	 	35	 
	 
	 	 	 	 	 	 
	19.

	 	COUNTERPARTS
	 	 	36	 






			
	 	 	 
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SALE OF SHARES AND CLAIMS AGREEMENT



between




THERMADYNE INDUSTRIES, INC.



(a US Corporation incorporated in accordance with the laws of the state of Delaware, USA)

(“Seller”)



and




THERMAWELD INDUSTRIES (PROPRIETARY) LIMITED



(a company registered in accordance with the laws of the Republic of South Africa under
Registration Number 2005/033316/07)

(“Purchaser”)




WHEREAS





	A.	 	The Seller is, or will before the Implementation Date, be the owner of:






	 	1.	 	100% of the issued shares in each of Unique and Maxweld;
	 
	 	2.	 	the Sale Claims; and
	 
	 	3.	 	the Trading Claims.






	B.	 	The Seller has agreed to sell to the Purchaser, and the Purchaser has agreed to purchase from
the Seller, the Sale Equity in accordance with the provisions of this Agreement.





			
	 	 	 
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IT IS ACCORDINGLY AGREED AS FOLLOWS:





	1.	 	INTERPRETATION






	1.1	 	Definitions
	 
	 	 	In this Agreement and the preamble above, unless the context requires otherwise:







	 	 	 	 	 
	1.1.1

	 	“this Agreement”
	 	means this sale of shares and claims agreement, together with the schedules and annexures;
	 
	 	 	 	 
	1.1.2

	 	“Annexure”
	 	means an annexure to this Agreement (and “annexures” shall have a corresponding meaning);
	 
	 	 	 	 
	1.1.3

	 	“Bank”
	 	means Sanlam Capital Markets Limited and/or Sanlam Private Equity, a division of Sanlam Life Insurance Limited;
	 
	 	 	 	 
	1.1.4

	 	“Business Day”
	 	means any day other than a Saturday, Sunday or official public holiday in South Africa;
	 
	 	 	 	 
	1.1.5

	 	“Companies”
	 	means collectively Unique and Maxweld, and “Company” means either of them as the context may require;
	 
	 	 	 	 
	1.1.6

	 	“Companies Act”
	 	means the Companies Act, 61 of 1973 (as amended);
	 
	 	 	 	 
	1.1.7

	 	“Company Business”
	 	means all of the business conducted by Unique and Maxweld;
	 
	 	 	 	 
	1.1.8

	 	“Effective Date”
	 	means 1 December 2006;
	 






			
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	1.1.9

	 	“Effective Date Accounts”
	 	means the audited annual
financial statements (including all
notes thereto) of the Companies, for
the financial year ending 31 December
2005, as adjusted in terms of the
audited statements dated 11 July 2006
and attached hereto as Annexure “C”;
	 
	 	 	 	 
	1.1.10

	 	“Exchange Control Regulations”
	 	means the Exchange Control
Regulations published on 1 December
1961 pursuant to section 9 of the
Currency and Exchange Act of 1933 in
Government Notice R111 (as amended);
	 
	 	 	 	 
	1.1.11

	 	“GAAP”
	 	means statements of generally
accepted accounting practice, as
contemplated in Section 286(3) of
the Companies Act and as prescribed,
as at the Effective Date, by the
Accounting Practices Board of the
Republic of South Africa;
	 
	 	 	 	 
	1.1.12

	 	“Implementation Date”
	 	means the 3rd (third)
Business Day following the date upon
which the last Suspensive Condition is
fulfilled or waived (as the case may
be), or any other date that the
Parties may agree in writing;
	 
	 	 	 	 
	1.1.13

	 	“Implementation Time”
	 	means 12h00 on the Implementation Date;
	 
	 	 	 	 
	1.1.14

	 	“Maxweld”
	 	means Maxweld & Braze (Proprietary) Limited,
a company incorporated in accordance with the
laws of the Republic of South Africa under
Registration Number 2000/010018/07;
	 






			
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	1.1.15

	 	“Maxweld Claims”
	 	means all claims of whatsoever nature and howsoever arising (including, but not limited to,
claims on loan account, if any) which the Seller has against Maxweld as at the
Effective Date, but excludes the Trading Claims;
	 
	 	 	 	 
	1.1.16

	 	“Maxweld Shares”
	 	means the ordinary par value fully paid shares owned by the Seller in Maxweld, comprising the
entire issued share capital of Maxweld;
	 
	 	 	 	 
	1.1.17

	 	“Parties”
	 	means collectively the Purchaser and the Seller and “Party” means any one of them as the
context may require;
	 
	 	 	 	 
	1.1.18

	 	“Prime”
	 	means the publicly quoted prime rate of interest charged by The Standard Bank of South
Africa Limited, on overdraft, from time to time (and as certified, in the event of any
dispute, by any manager of such bank, whose appointment it shall not be necessary to
prove);
	 
	 	 	 	 
	1.1.19

	 	“Purchase Price”
	 	means, subject to the provisions of clause 4.1.2, R130 000 000.00 (one hundred and thirty
million Rand);
	 
	 	 	 	 
	1.1.20

	 	“Sale Claims”
	 	means collectively the Maxweld Claims and the Unique Claims (but excludes the Trading Claims);
	 
	 	 	 	 
	1.1.21

	 	“Sale Equity”
	 	means collectively the Sale Shares, the Trading Claims and the Sale Claims;
	 






			
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	1.1.22

	 	“Sale Shares”
	 	means the Maxweld Shares and the Unique
Shares;
	 
	 	 	 	 
	1.1.23

	 	“SARS”
	 	means the South African Revenue Services,
or any body that is substituted for it, as the
case may be;
	 
	 	 	 	 
	1.1.24

	 	“Signature Date”
	 	means the date on which this Agreement is
signed by the Party signing last in time;
	 
	 	 	 	 
	1.1.25

	 	“Specific Indemnities”
	 	means the specific indemnities recorded in
clause 7.2.2 below;
	 
	 	 	 	 
	1.1.26

	 	“Subsidiaries”
	 	means collectively Selrod Welding (Pty) Ltd,
Thermadyne Tlou’s EMP Welding (Pty) Ltd
(to the extent of Unique’s shareholding
therein); and Maxweld DIY Hardware (Pty)
Ltd;
	 
	 	 	 	 
	1.1.27

	 	“Suspensive Conditions”
	 	means the suspensive conditions recorded in
clause 2.1;
	 
	 	 	 	 
	1.1.28

	 	“Suspensive Condition
Date”
	 	means the date that is 40 (forty) Business
Days after the Signature Date, or such later
date as the Parties may agree in writing;
	 
	 	 	 	 
	1.1.29

	 	“Trading Claims”
	 	means those claims against the Companies
arising before 1 December 2007 from the
ordinary trading activities of the Seller and
companies within the same group as the
Seller (and not from the advances of
shareholders’ loans) as amount to R19 355 719 (nineteen million three hundred and fifty
five thousand seven hundred and nineteen
Rand) (and as summarised in the
	 
	 	 	 	 





					
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	 	 	 	spreadsheet attached to this Agreement as
Annexure “D”);
	 
	 	 	 	 
	1.1.30

	 	“Unique”
	 	means Thermadyne South Africa
(Proprietary) Limited trading as Unique
Welding Alloys, a company incorporated in
accordance with the laws of the Republic of
South Africa under Registration Number
2000/001361/07;
	 
	 	 	 	 
	1.1.31

	 	“Unique Claims”
	 	means all claims of whatsoever nature and
howsoever arising (including, but not limited
to, claims on loan account, if any) which the
Seller has against Unique as at the Effective
Date, but excludes the Trading Claims;
	 
	 	 	 	 
	1.1.32

	 	“Unique Shares”
	 	means the ordinary shares in the share
capital of Unique owned by the Seller,
comprising the entire issued share capital of
Unique;
	 
	 	 	 	 
	1.1.33

	 	“Warranties”
	 	means the warranties set out in the Warranty
Schedule;
	 
	 	 	 	 
	1.1.34

	 	“Warranty Schedule”
	 	means the warranty schedule attached
hereto as Annexure “A”; and
	 
	 	 	 	 
	1.1.35

	 	“ZAR”
	 	means the South African Rand, being the
official currency of the Republic of South
Africa.
	 
	 	 	 	 





					
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	1.2	 	 	General Interpretation
	 
	 	 	 	For the purposes of this Agreement the following rules of construction shall apply,
unless the context requires otherwise:






	1.2.1	 	 	the singular shall include the plural and vice versa;
	 
	1.2.2	 	 	a reference to any one gender, whether masculine, feminine or neuter,
includes the other two;
	 
	1.2.3	 	 	any reference to a person includes, without being limited to, any individual,
body corporate, unincorporated association or other entity recognised under
any law as having a separate legal existence or personality;
	 
	1.2.4	 	 	references to a statutory provision include any subordinate legislation made
from time to time under that provision and references to a statutory provision
include that provision as from time to time modified or re-enacted as far as
such modification or re-enactment applies, or is capable of applying, to this
Agreement or any transaction entered into in accordance with this
Agreement;
	 
	1.2.5	 	 	a “law” shall be construed as any law (including common law), statute,
constitution, decree, judgment, treaty, regulation, directive, by-law, order or
any other legislative measure or enactment of any government, local
government, statutory or regulatory body or court and shall be deemed to
include the rules and other requirements of any applicable stock exchange;
	 
	1.2.6	 	 	references in this Agreement to “clauses” and “Annexures” are to clauses of,
and annexures to, this Agreement;
	 
	1.2.7	 	 	any reference in this Agreement to “this Agreement” or any other agreement,
document or instrument shall be construed as a reference to this Agreement
or that other agreement, document or instrument as amended, varied,
restated, novated or substituted from time to time;







					
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	1.2.8	 	words and expressions defined in the Companies Act which are
not defined in this Agreement shall have the same meanings in
this Agreement as those ascribed to them in the Companies Act;
	 
	1.2.9	 	any word and expression defined in any clause shall, unless the
application of the word or expression is specifically limited
to the clause in question, bear the meaning ascribed to the
word or expression throughout this Agreement; and
	 
	1.2.10	 	unless otherwise provided, any number of days prescribed
shall be determined by excluding the first and including the
last day or, where the last day falls on a day that is not a
Business Day, the next succeeding Business Day.






	1.3	 	Specific Rules of Interpretation






	1.3.1	 	The use of the word “including” followed by a specific
example/s shall not be construed as limiting the meaning of the
general wording preceding it and the eiusdem generis rule shall
not be applied in the interpretation of such general wording or
such specific example/s.
	 
	1.3.2	 	The terms of this Agreement have been negotiated and shall not
be interpreted or construed to the disadvantage of a Party
because that Party was responsible for or participated in the
preparation of this Agreement (or any part of it) and the
contra proferentum rule shall not be applied in the
interpretation of this Agreement.






	1.4	 	Headings and Sub-headings






All the headings and sub-headings in this Agreement are for
convenience only and are not to be taken into account for the
purposes of interpreting it.



			
	 	 	 
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	2.	 	CONDITIONS






	2.1	 	The rights and obligations of the Parties under this Agreement
(other than those set out in clause 1, in this clause 2 and in
clauses 5, 8, and 11 to 19 inclusive), are subject to and
conditional upon the fulfilment or waiver (as the case may
be), of the following suspensive conditions, on or before the
Suspensive Condition Date (unless another date is specified
below, in which event such other date shall apply):






	2.1.1	 	That the Seller procures the requisite approval in terms of
the Exchange Control Regulations, to the extent necessary, for
the disposal of the Sale Equity at the Purchase Price and the
remittance of the Purchase Price to the Seller as contemplated
in clause 4;
	 
	2.1.2	 	That the financing raised by the Purchaser from the Bank in
order to meet its obligations in terms of this Agreement
becomes unconditional in accordance with its terms; and
	 
	2.1.3	 	That the audit of the Companies’ 2006 financial results is
duly completed (which completion shall be signified by a
signed set of audited financial statements) by the independent
registered accounting firm of KPMG LLC, which has been
appointed by the shareholders of Thermadyne Holdings
Corporation.






	2.2	 	The Parties shall use all commercially reasonable endeavours
to do whatever may be necessary to procure the fulfilment of
the Suspensive Conditions (to the extent that such fulfilment
is within the power and control of such Party), and the
Parties shall co-operate with each other for that purpose.
	 
	2.3	 	Notwithstanding the aforegoing, the Purchaser shall use its
best endeavours and shall perform all actions and take all
such steps as are necessary and within its power to timeously
fulfil all conditions on which the provision of the financing
referred to in clause 2.1.2 is suspensive. In this regard the
Purchaser shall:





			
	 	 	 
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	2.3.1	 	on no less than 1 (one) occasion per week during the Interim
Period, appraise and inform the Seller in sufficient detail of
all progress made by the Purchaser in performing its
obligations set out in this clause 2.3;
	 
	2.3.2	 	where a delay is expected by the Purchaser in the fulfilment
of any such condition, notify the Seller of the anticipated
date of fulfilment of that condition, together with the
reasons for such delay; and
	 
	2.3.3	 	notify the Seller as and when each such condition is fulfilled.






	2.4	 	The Purchaser and the Seller may by agreement in writing at
any time extend the period for the fulfilment of all or any of
the Suspensive Conditions by such additional period as they
may agree in writing.
	 
	2.5	 	If the Suspensive Conditions are not fulfilled by the
Suspensive Condition Date, then the provisions of this
Agreement which are suspended shall not take effect unless
otherwise agreed in writing by the Parties. Neither Party
shall have any claim against the other Party arising out of or
in relation to the non-fulfilment of any of the Suspensive
Conditions, save for a claim arising from a breach of the
provisions of clause 2.2 or 2.3 above or any other provision
obliging a Party to use reasonable commercial endeavours to
procure the timeous fulfilment of the Suspensive Conditions.
	 
	2.6	 	If the Suspensive Conditions are fulfilled, then all of the
provisions of this Agreement which were suspended in terms of
clause 2.1 shall also take effect and become operative, and
the whole of this Agreement shall accordingly become
unconditional.






	3.	 	PURCHASE AND SALE






	3.1	 	Subject to the fulfilment or waiver, as the case may be, of
the Suspensive Conditions, and with effect from the Effective
Date, the Seller sells to the Purchaser and the Purchaser
purchases from the Seller the Sale Shares, the Sale Claims and
the Trading Claims upon and subject to the terms and
conditions of this Agreement.





			
	 	 	 
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	3.2	 	The transaction contemplated in this Agreement shall close
on the Implementation Date, (on which date ownership of
the Sale Shares, Sale Claims and Trading Claims shall be
given to the Purchaser), and all rights, benefits,
privileges, obligations, risks and liabilities attaching
to or in the Sale Claims, Trading Claims and the Sale
Shares shall, subject to the Warranties and the terms of
this Agreement, be assumed by the Purchaser with effect
from that date. For the sake of clarity, the Seller shall
not be responsible in any way for any tax liabilities
which the Companies and/or the Purchaser may incur or
sustain arising out of the sale of the Trading Claims in
terms of this Agreement, and the Purchaser indemnifies the
Seller in respect of all such liabilities.
	 
	3.3	 	The sale and purchase of all the Sale Shares, Trading
Claims and the Sale Claims in terms of this Agreement is
one indivisible transaction.






	4.	 	PURCHASE PRICE, APPORTIONMENT AND PAYMENT






	4.1	 	In consideration for the acquisition of the Sale Equity
the Purchaser shall pay to the Seller the Purchase Price
on the following terms:






	4.1.1	 	R100 000 000.00 (one hundred million Rand) shall be paid
by the Purchaser on the Implementation Date; and
	 
	4.1.2	 	the balance of the Purchase Price (being R30 000 000
(thirty million Rand)) (“Balance”) shall be payable on or
before the third anniversary of the Implementation Date
(“the Latest Balance Payment Date”), provided that to the
extent that the Balance is not paid on the Implementation
Date, the Balance shall accrue interest at the rate of 14%
(fourteen percent) per annum, compounded annually in
arrears, (calculated on the basis of 365 days), provided
that the maximum amount of the Balance, adjusted in
accordance with this clause 4.1.2, shall not, subject to
the provisions of clause 4.4, exceed R44 446 000 (forty
four million four hundred and forty six thousand Rand).





			
	 	 	 
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	4.2	 	For the sake of clarity, in the event of a restructuring by
the Purchaser of the Companies and/or Company Business after
the Effective Date, the obligations of the Purchaser to
comply with the provisions of this Agreement shall be binding
on the Purchaser’s successors and assigns.
	 
	4.3	 	Notwithstanding the provisions of clause 4.1.2, if any
written notice of a Warranty indemnity claim (in terms of
clause 7.2.1) or a Specific Indemnity claim (in terms of
clause 7.2.2) has been timeously submitted to the Seller in
terms of clause 7.4.4, and as at the Latest Balance Payment
Date, the relevant claim/s has not been agreed or finally
resolved in terms of clause 14, the Purchaser shall, on that
date, pay the portion of the interest adjusted Balance which
represents a fair and reasonable estimation of the principal
value of the relevant claim/s into the trust account of the
Seller’s attorneys, Bowman Gilfillan Inc, to be held in trust
pending the final outcome of the claim/s instituted,
whereafter such amounts held in trust shall be released by
the Seller’s attorneys to the Parties in such amounts and
proportions (or to the one Party only, where applicable) as
they may be entitled to in light of agreement or final
resolution of the disputed and pending claim. The remainder
of the interest adjusted Balance (if any) shall be paid in
terms of clause 4.1.2.
	 
	4.4	 	Subject to the provisions of clause 4.5, from the Latest
Balance Payment Date and pending the release of the amounts
held in trust by the Seller’s attorneys, the Balance owing to
the Seller shall continue to accrue interest at the rate of
14% (fourteen percent) per annum, compounded annually in
arrears, (calculated on the basis of 365 days), until such
time as the Seller is paid the amounts due to it.
	 
	4.5	 	It is specifically recorded that if it is agreed between the
Parties in writing or finally resolved in terms of clause 14
below, that the Seller is indebted to the Purchaser as a
result of any breach of a Warranty or Specific Indemnity, the
Purchaser shall be entitled to deduct the relevant amount so
due and payable by the Seller as agreed and/or resolved (as
the case may be) from the Balance (and accrued interest
thereon) payable, and the Seller’s attorneys shall remit any
such amount already deposited with the Seller’s attorneys in
terms of clause 4.3 above to the Purchaser.





			
	 	 	 
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	4.6	 	The Purchase Price shall be apportioned as follows:






	4.6.1	 	as to the Sale Claims, the face value of those Sale Claims as at the Effective Date;
	 
	4.6.2	 	as to the Trading Claims, the face value of those Trading Claims as at the Effective Date; and
	 
	4.6.3	 	as to the Sale Shares, the remainder of the Purchase Price.






	4.7	 	The Purchaser shall pay to the Seller, free of exchange or deduction, the Purchase Price, in ZAR,
by way of electronic funds transfer directly into the Seller’s attorneys’, Bowman Gilfillan
Inc’s, trust account, the details of which are as follows:






	 	 	Account Holder — Bowman Gilfillan Inc.

Bank:

Branch Code:

Account No:

Ref:






	5.	 	INTERIM PERIOD






	5.1	 	The Seller shall ensure that during the period between the Signature Date and the Implementation
Date (“the Interim Period”):






	5.1.1	 	no payment or distribution of whatever nature (whether in cash or in specie), or repayment of any
loan account, shall be made or promised by the Companies to the Seller (save for the repayment of
trading claims on normal due date and in the ordinary course of business);
	 
	5.1.2	 	the Companies continue to conduct their respective businesses in the ordinary course, and neither
of them, nor any of the Subsidiaries-






	5.1.2.1	 	shall dispose of any material asset other than trading stock;





			
	 	 	 
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	5.1.2.2	 	shall change their standard terms and conditions of trade in any material respect;
	 
	5.1.2.3	 	shall dispose of any trading stock at a price lower than the price that would be
charged by the relevant Company in the ordinary course of business (excluding
disposals by Maxweld to Unique); and
	 
	5.1.2.4	 	shall incur any debt, whether actual or contingent, save as specifically
disclosed to the Purchaser, or which incurral of debt forms part of the ordinary
course of business of the Companies.






	5.2	 	The Purchaser warrants, as at the Effective Date and the Implementation Date that
during the period between 1 July 2006 and the Signature Date, neither Company
shall have written off and/or in any way adjusted the trade payables of that
Company and/or the Subsidiaries.






	6.	 	DELIVERY AND CLOSING






	6.1	 	On the Implementation Date at the Implementation Time, a meeting shall be held at
the offices of Bowman Gilfillan Inc. in Sandton or at such other place as may be
agreed between the Parties, at which the following matters shall be completed by
them in the following order of priority:






	6.1.1	 	the Purchaser shall perform its obligations set out in clause 4.1.1 and provide
to the Seller valid proof, reasonably satisfactory to the Seller, of the payment
having been made;
	 
	6.1.2	 	the Seller shall then deliver to the Purchaser:






	6.1.2.1	 	the share certificates for the Sale Shares (in respect of which the
“non-resident” endorsement shall have been cancelled by an authorised dealer of
the South African Reserve Bank), together





			
	 	 	 
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	 	 	with such duly executed transfer forms as may be required for the lawful
transfer of such shares to the Purchaser;
	 
	6.1.2.2	 	original letters of resignation of all the directors appointed to the
boards of the Companies and the Subsidiaries (the costs of which
resignations shall, for the sake of clarity, be borne solely by the
Seller);
	 
	6.1.2.3	 	a written cession in respect of the Sale Claims and the Trading Claims,
signed by the Seller as cedent, reflecting the Purchaser as cessionary;
	 
	6.1.2.4	 	a certified copy of a resolution duly passed by its board of directors,
pursuant to which it is resolved that the Seller enters into this
Agreement (a final draft of which shall have been circulated to the
board), and that a specified person is authorised to sign this Agreement
for and on behalf of the Seller;
	 
	6.1.2.5	 	resolutions, which may be subject to the implementation of this clause 6,
passed by the board of directors of each Company approving of the
following matters:






	6.1.2.5.1	 	the transfer of the Sale Shares from the Seller to the Purchaser, and
accordingly the registration in that Company’s register of members of the
Purchaser as the holder of the Sale Shares;
	 
	6.1.2.5.2	 	the cession of the Sale Claims and the Sale Trading Sale Claims from the
Seller to the Purchaser;
	 
	6.1.2.5.3	 	the appointment to each Company’s board of directors of directors
nominated by the Purchaser;
	 
	6.1.2.5.4	 	the resignation of the directors referred to under clause 6.1.2.2;





			
	 	 	 
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	6.1.2.5.5	 	generally approving the transactions set out in this Agreement;
and






	6.1.3	 	the Purchaser shall deliver to the Seller a certified copy of a resolution duly
passed by its board of directors, pursuant to which its is resolved that the
Purchaser enters into this Agreement (a final draft of which shall have been
circulated to the board), and that a specified person is authorised to sign this
Agreement for and on behalf of the Purchaser.






	6.2	 	To the extent that the Seller has any other records, documentation or
information of whatever nature pertaining to the Companies in its possession,
such records, documentation and information shall be delivered to the Purchaser
at the meeting to be held on the Implementation Date. For the sake of clarity,
possession and ownership of the Sale Equity shall transfer to the Purchaser
against receipt of payment of the portion of the Purchase Price set out in
clause 4.1.1 above.






	7.	 	WARRANTIES, RELEASE FROM DISCLOSED GUARANTEES, INDEMNITIES AND CLAIM LIMITATIONS






	7.1	 	Warranties






	7.1.1	 	The Seller binds itself to the Purchaser in accordance with the
Warranties set out in the Warranty Schedule.
	 
	7.1.2	 	Each Warranty given by the Seller in terms of this Agreement:






	7.1.2.1	 	shall be a separate Warranty and shall in no way be restricted or
limited by the provisions of any other Warranty; and
	 
	7.1.2.2	 	shall, unless otherwise expressly stated, be a continuing
warranty applying as at the Effective Date, the Signature Date and
the Implementation Date;





			
	 	 	 
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	7.1.2.3	 	shall be deemed to be a material Warranty which has
induced the Purchaser to enter into this Agreement.






	7.2	 	Indemnities






	7.2.1	 	Subject to clause 7.4, the Seller hereby indemnifies
the Purchaser and undertakes to hold the Purchaser
harmless in respect of any loss, costs, claims,
demands, liabilities, direct damage or expense which
the Purchaser may suffer or incur as a result of or in
relation to the breach of any Warranty.
	 
	7.2.2	 	Without limiting the generality of clause 7.2.1 above,
the Seller hereby indemnifies and undertakes to hold
the Purchaser harmless in respect of any loss, costs,
claims, demands, liabilities, direct damage or expense
(including legal cost on an attorney and own client
scale) (hereafter referred to as “costs”) which the
Purchaser or the Companies or the Subsidiaries may
suffer or incur as a result of:






	7.2.2.1	 	Any deficit in the pension fund for employees of the
Companies and the Subsidiaries, to the extent that
such deficit is attributable to the period up until
the Effective Date (in which event the Seller shall be
obliged to pay the relevant amount of such deficit
directly to the relevant Company on written demand by
the Purchaser), provided that the Seller’s liability
in this regard shall not exceed an aggregate of
R500,000.00 (five hundred thousand Rand);
	 
	7.2.2.2	 	Each Company and each of the Subsidiaries’ tax
affairs (including all forms of taxes and levies
including but not limited to income tax, capital gains
tax, withholding taxes, value-added tax, stamp duties,
transfer duty, secondary tax on companies,
donations tax, employees tax, RSC levies, customs and
excise duty, and any similar tax, levy or impost) not
being in order and up to date for the period up until
the Effective Date, and in particular, as a result of:
(1) all such taxes and levies due and payable as at
the Effective Date not having been duly and





			
	 	 	 
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	 	 	correctly paid; and/or (2) any interest
or penalty will or may be levied by the
SARS arising from or in respect of
non-compliance by the Companies and/or
the Subsidiaries with the provisions of
any legislation pertaining to the
imposition of any such tax or levy
arising or accruing up until the
Effective Date. If any of the costs
contemplated in this Specific Indemnity
arise, the Seller shall immediately
become obliged to refund the relevant
amount of such costs to the Company or
Subsidiary liable to make the relevant
payment to SARS, upon receipt of a
written demand to that effect from the
Purchaser, provided that the Seller’s
liability in terms of this clause 7.2.2.2
shall not exceed an aggregate of
R3,000,000.00 (three million Rand);
	 
	7.2.2.3	 	The Companies and the Subsidiaries not
having duly and properly complied with
all occupational health and safety
legislation for the period up until the
Implementation Date plus a further period
(“OHS period”) until the expiry of the
sixth calendar month following the
calendar month in which the
Implementation Date occurs, provided that
the Seller’s liability in terms of this
clause 7.2.2.3 shall not exceed an
aggregate of R150 000,00 (one hundred and
fifty thousand Rand);
	 
	7.2.2.4	 	The Companies and/or the Subsidiaries
putting the relevant measures in place,
and taking the appropriate steps, during
the OHS period, to ensure that the
Companies and the Subsidiaries comply
with all occupational health and
safety legislation provided that:






	7.2.2.4.1	 	the Purchaser shall be obliged
to procure that the implementation
of the aforementioned measures
are commenced with as soon as reasonably
possible after the Implementation Date;
	 
	7.2.2.4.2	 	if the Purchaser fails to comply with its
obligation in terms of clause 7.2.2.4.1
and any indemnity claim arises in terms
of





			
	 	 	 
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	 	 	clause 7.2.2.3 above as a result of an accident occurring during the OHS period,
the Seller shall not be obliged to indemnify the Purchaser in terms of
clause 7.2.2.3 above,






	 	 	provided that the Seller’s liability in terms of this clause 7.2.2.4 shall
not exceed an aggregate of R150 000,00 (one hundred and fifty thousand Rand);






	7.2.2.5	 	Any fraudulent or grossly negligent disclosure or non-disclosure made by
the Seller to induce the Purchaser in entering into this Agreement;
	 
	7.2.2.6	 	Any claim or legal proceeding of any nature being instituted by Air Liquide
against Unique or the Purchaser and found in favour of Air Liquide, where such claim
pertains to the acquisition by the Purchaser of the Sale Equity and/or any alleged
pre-emptive right that Air Liquide may have to acquire all or any portion of the Sale
Equity (provided for the avoidance of doubt that this Specific Indemnity shall include
all legal costs on an attorney and own client scale, plus VAT, incurred by Unique in
defending or responding to such claim or proceeding).






	7.3	 	Warranty and Specific Indemnity Procedure
	 
	 	 	The Seller agrees that if the Purchaser (“the Indemnified Party”) becomes
aware of any matter which may give rise to a claim against the Seller (“the Other Party”)
resulting from any breach of Warranty or Specific Indemnity, notice of the claim and full
details of it shall be given by the Indemnified Party to the Other Party as soon as reasonably
possible after the Indemnified Party becomes aware of it and the Other Party shall be entitled
to defend, settle or compromise any such claim acting in its own discretion, provided that, if the claim in
question arises out of or is connected with a claim by, or liability to, a third party:






	7.3.1	 	the claim shall not
be compromised or settled without the consent of the Indemnified Party,
which consent shall not be unreasonably
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	 	 	(provided that the Other Party shall be liable to reimburse the Indemnified Party in respect
of any legal costs on an attorney and own client scale, plus VAT thereon, incurred by the
Indemnified Party in defending or responding to such claim);
	 
	7.3.2	 	the Other Party shall afford the Indemnified Party the opportunity of consulting with the Other
Party in relation to the defence of any such claim; and
	 
	7.3.3	 	the Indemnified Party shall provide the Other Party with reasonable access to its employees,
files and records pertinent to the defence of any such claim, and the Indemnified Party shall
use reasonable endeavours to facilitate the appearance of any employee as a witness in any
litigation proceedings instituted in connection with such claim if so requested by the Other
Party.






	7.4	 	Limitation on Warranty and Indemnity Claims
	 
	 	 	Save for a breach of Warranty 1.4 (Sale Shares, the Trading Claims and Sale Claims), the
following indemnity claim limitations shall apply:






	7.4.1	 	The indemnity in clause 7.2.1 shall not apply to the extent that any such loss, costs, claims,
demands, liabilities, damage or expense has been provided for in the Effective Date Accounts or
has otherwise been disclosed to the Purchaser. The limitation in this clause 7.4.1 does not
apply to the Specific Indemnities.
	 
	7.4.2	 	The Seller’s aggregate liability for damages arising from a breach of Warranty under this
Agreement will not exceed an amount equal to 10% (ten percent) of the Purchase Price. The
limitation in this clause 7.4.2 does not apply to the Specific Indemnities.
	 
	7.4.3	 	The Seller shall be under no liability in respect of the indemnities provided for in clause 7.2
above unless the amount of the relevant claim in respect of such loss, costs, claims, demands,
liabilities, damage or expense giving rise to an indemnity claim, or the accumulated aggregate
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	 	 	claims made prior thereto, exceed 1% (one percent) of the Purchase Price, following
which the excess amount of such accumulated claims and all future claims against the Seller
shall be recoverable as provided for in this Agreement. The limitation in this clause 7.4.3
does not apply to the Specific Indemnities.
	 
	7.4.4	 	The Purchaser shall, notwithstanding the provisions of clause 14.8, not be entitled to
damages whether for breach of Warranty, breach of Specific Indemnity, or to indemnification
for a breach with respect to a Warranty under clause 7.2 in the event that:






	7.4.4.1	 	a claim for damages or indemnification is not made in writing within:






	7.4.4.1.1	 	in relation to claims arising from clause 7.2.1, 1 (one) year after the Implementation
Date;
	 
	7.4.4.1.2	 	in relation to claims arising from clause 7.2.2 (other than clauses 7.2.2.2 and 7.2.2.6), 1
(one) year after the Implementation Date;
	 
	7.4.4.1.3	 	in relation to claims arising from clause 7.2.2.2, 3 (three) years after the Implementation
Date, provided that the Seller shall indemnify the Purchaser in relation to such claim for
a further period of 1 (one) year after the expiry of the 3 (three) year term provided for
herein;
	 
	7.4.4.1.4	 	in relation to claims arising from clause 7.2.2.6, 6 (six) months after the Implementation
Date, provided that the Seller shall indemnify the Purchaser in relation to such claim for
a further period of 1 (one) year after the expiry of the 6 (six) month term provided for
herein; and/or






	7.4.4.2	 	arbitration proceedings in connection with any claim for damages or indemnification are not
initiated (by way of the delivery of an





			
	 	 	 
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	 	 	arbitration notice as contemplated in clause 14.3) within 6 (six)
months of the relevant claim being rejected by the Seller in
writing.






	 	 	The Purchaser’s notice of a claim pursuant to clause 7.4.4.1 shall set out
such particularity as may be reasonably necessary to enable the Seller to
properly consider the claim, without prejudice to the Seller’s rights to
request further particularity (but the lack of particularity shall not render
defective or nullify any such notice). If the Seller requires any further or
additional particularity in respect of any such claim for any purpose
contemplated in this clause 7, the Seller shall notify the Purchaser
accordingly (together with such particularity as may be reasonably necessary
to enable the Purchaser to consider the request) within 14 (fourteen) days.






	7.5	 	Release from Suretyships, Indemnities and Guarantees






	7.5.1	 	The Purchaser undertakes to use its best endeavours to procure, within 7
(seven) days after it becomes aware of any suretyship, indemnity, guarantee,
and/or co-principal debtor undertaking (hereinafter the “Guarantee
Undertaking”) given by the Seller in connection with the obligations of any
Company or Subsidiary prior to the Effective Date, the release of the Seller
from any such Guarantee Undertaking, to the extent that any obligation or
liability arising under the Guarantee Undertaking:






	7.5.1.1	 	relates to an obligation or liability of a Company or Subsidiary
which arises after the Effective Date and for which the Seller is
not otherwise liable in terms of this Agreement; or
	 
	7.5.1.2	 	relates to an obligation or liability provided for in the
Effective Date Accounts and for which the Seller is not otherwise
liable in terms of this Agreement.






	7.5.2	 	Pending the release contemplated in clause 7.5.1, or should any person refuse
to or fail to release the Seller as contemplated in clause 7.5.1, the Purchaser
hereby indemnifies the Seller in question against all obligations





			
	 	 	 
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	 	 	and/or liabilities from which the Purchaser is obliged to procure the release of the
Seller in terms of clause 7.5.1.






	8.	 	FUNDING






	8.1	 	The Parties record that the Purchaser has provided to the Seller a written undertaking
from the Bank that, subject to this Agreement becoming unconditional in accordance with
its terms:






	8.1.1	 	the Bank has approved a funding facility for a minimum period of 3 (three) years in
the amount of at least R144 446 000 (one hundred and forty four million four hundred
and forty six thousand Rand) in favour of the Purchaser and/or its nominee; and
	 
	8.1.2	 	that the Purchaser and/ or its nominee has an amount of R44 446 000 (forty four
million four hundred and forty six thousand Rand) available to it for the exclusive
purposes of fulfilling its obligations under this Agreement.






	8.2	 	The Purchaser undertakes to timeously and fully comply with all terms of the facility
granted to it and specified in clause 8.1, and hereby indemnifies and holds the Seller
harmless for all costs (including attorney and own client legal costs), damages and loss
sustained by the Seller in respect of and/or arising from any failure or omission by the
Purchaser and/or its nominee to comply with the provisions of that facility unless such
failure or omission is caused by the fraudulent misconduct or gross negligence of the
Seller.






	9.	 	TRADING NAME
	 
	 	 	The Parties record that simultaneously with the signature by the Parties of this Agreement, the
Seller, the Purchaser and Unique have entered into an
“Intellectual Property Licence Agreement” on
the terms set out in Annexure “B” hereto and in terms of which the Seller has licensed to Unique a
royalty-free right to use the name “Thermadyne SA” in South Africa for a period of 3 (three) years
from the Implementation Date.





			
	 	 	 
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	10.	 	CHANGE OF NAME






	10.1	 	Forthwith after the Last Balance Payment Date, or, if the license set out in Annexure
“B” hereto is extended, the date of termination of the license, the Purchaser
shall cease using the name “Thermadyne SA” and shall procure that the trading name and
style of Unique is changed to such other trading name and style so as not to reflect the
name “Thermadyne” in its composition, and shall register such change of name with the
Registrar of Companies and Close Corporations.
	 
	10.2	 	In the event that the supply relationship between the Parties terminates for any
reason, then in that event the Company will, to the extent that
“Thermaweld branding is
used on the products, for a period of 2 (two) years after such termination, place on its
products immediately below the name “Thermaweld” an easily viewed disclaimer stating as
follows:






“Thermaweld (Pty) Ltd is in no way associated with Thermadyne Industries
Inc, a US corporation.”.




	11.	 	ASSISTANCE
	 
	 	 	The Purchaser undertakes to procure that the Seller is given all reasonable assistance as is
required by the Seller from the Companies in order to enable the Seller to complete the work
necessary to prepare its financial statements and other statutorily required documentation. Such
assistance shall include reasonable access to the Companies’ employees, files and records
pertinent to the preparation of such documents, and the Purchaser shall use reasonable endeavours
to facilitate that the Seller is given such assistance by the relevant employees of the Companies.









	12.	 	ANNOUNCEMENTS






	12.1	 	Neither Party shall make any public announcement or statement about this Agreement or
its contents without first having obtained the other Party’s prior





			
	 	 	 
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written consent to the public announcement or statement and to its contents, provided that
such consent may not be unreasonably withheld or delayed.




	12.2	 	Unless the Parties agree otherwise, the content of this Agreement shall not be
disclosed to Air Liquide.






	13.	 	CONFIDENTIALITY






	13.1	 	Subject to the provisions of clause 13.2, each Party shall hold in confidence all
documents, communications, materials and other information, whether technical or
commercial, supplied by or on behalf of the other Party, and/or any confidential
information obtained by the Seller in its capacity as sole shareholder of the Companies
until the Implementation Date, and all matters referred to in this Agreement (the
“Confidential Information”) and shall not, except with that other Party’s written consent
(which consent shall not be unreasonably withheld), publish or otherwise disclose the same
otherwise than as expressly provided for in this Agreement.
	 
	13.2	 	A Party shall be entitled to disclose any data or information acquired by it under or
pursuant to this Agreement or information relating to a dispute arising under this
Agreement following reasonable consultation with the other Party if such disclosure is
made in good faith and in each case only to the extent reasonably necessary in the
circumstances:






	13.2.1	 	as may be required by any recognised stock exchange or other applicable
regulatory authority or any taxation authority;
	 
	13.2.2	 	to the extent required by law or pursuant to any order of any court of
competent jurisdiction;
	 
	13.2.3	 	to any government or governmental authority if required by applicable law;
	 
	13.2.4	 	to its employees, directors or consultants and those of the Companies to the
extent essential to the performance of their responsibilities in a manner





			
	 	 	 
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consistent with the provisions of this Agreement and subject to confidentiality
protections no less stringent than those applicable to such Party’s own Confidential
Information; and




	13.2.5	 	to any lenders, security trustee, bank or other financial institution from
which such Party is obtaining finance upon obtaining a confidentiality undertaking
equivalent to clause 13.1.






	13.3	 	The confidentiality obligations contained in this clause 13 shall not apply to any
information which is or becomes part of the public domain otherwise than due to a breach
by the Party disclosing the information.
	 
	13.4	 	The rights and obligations contained in this clause 13 shall endure for any
Confidential Information, even after the termination of this Agreement, for a period of 2
(two) years from the Signature Date.






	14.	 	GOVERNING LAW AND DISPUTE RESOLUTION






	14.1	 	The Parties agree that this Agreement shall be governed by and interpreted in
accordance with the laws of South Africa (notwithstanding any conflict of law principles
which may apply).
	 
	14.2	 	Any dispute (“a dispute”) between the Parties arising in connection with this
Agreement or the subject matter hereof shall be submitted to and determined by arbitration
in accordance with this clause 14. For the purpose hereof the term “dispute” shall be
interpreted in the widest sense and shall include any dispute or difference in connection
with or in respect of the conclusion or existence of this Agreement, the carrying into
effect of this Agreement, the interpretation or application or the provisions of this
Agreement, the Parties respective rights and/or obligations in terms of and/or arising out
of this Agreement and/or the validity, enforceability, rectification, termination or
cancellation, whether in whole or in part, of this Agreement.





			
	 	 	 
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	14.3	 	Either Party (“the Referring Party”) shall be entitled to refer a dispute to arbitration in
terms of this clause 14 by notifying the other Party in writing of its intention to refer such
dispute to arbitration (“the Arbitration Notice”). The Arbitration Notice shall include the names
of not less then 5 (five) natural persons which the Referring Party proposes for appointment as
arbitrator (“the Arbitrator”).
	 
	14.4	 	Should the Parties fail to agree to an arbitrator within 5 (five) Business Days of the
Arbitration Notice, the Arbitrator shall be appointed, at the written request of either Party
(which request shall be copied to the other Party), by the Chairman for the time being of the
Johannesburg Bar Council (or its successor); subject to the proviso that the Arbitrator so
appointed by the said Chairman shall be a practising Senior Counsel of not less than 10 (Ten) years
standing or a retired judge.
	 
	14.5	 	Unless otherwise expressly agreed by the Parties in writing:






	14.5.1	 	the arbitration proceedings contemplated herein shall be held at Sandton, South
Africa and shall be conducted under the Standard Rules of the Association of Arbitrators
(“the Rules”);
	 
	14.5.2	 	the arbitration proceedings shall be conducted as expeditiously as possible but the
time periods provided for in Section 23(a) of the Arbitration Act, 42 of 1965 (as amended)
(“the Arbitration Act”) shall not apply thereto;
	 
	14.5.3	 	the decision of the Arbitrator shall be final and binding and there shall be no
right of appeal (notwithstanding the provisions of the applicable rules);
	 
	14.5.4	 	the Arbitrator shall have the power to direct that either of the Parties shall
bear the costs and charges of the proceedings in question in his sole discretion and shall
be entitled to direct that the costs and charges be shared by the Parties in such ratios
as the Arbitrator may determine;
	 
	14.5.5	 	the Arbitrator shall be required to provide written reasons for his/her judgement,
and the Parties shall use reasonable endeavours to procure that the Arbitrator does so.





			
	 	 	 
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	14.6	 	The provisions of this clause 14 shall prevail to the extent of there being any
conflict between the Rules and this clause 14.
	 
	14.7	 	Subject to the other provisions of this clause 14, the arbitration proceedings contemplated
herein shall be held in accordance with the provisions of the Arbitration Act.
	 
	14.8	 	Without derogating from the provisions of clause 7.4.4, but without detracting from the
effect (if any) of any other act taken by either Party which may affect the issue of
prescription, the Parties irrevocably agree and acknowledge that the Arbitration Notice shall
interrupt prescription and shall be deemed to constitute the service of a process for the purpose
of interrupting prescription in terms of Section 13 of the Prescription Act, 68 of 1969 (or, as
the case may be, the corresponding provision in any amendment thereto or in any replacement
legislation).
	 
	14.9	 	The provisions of this clause 14:-






	14.9.1	 	constitute an irrevocable consent by the Parties to the arbitration proceedings
contemplated in terms hereof and neither Party shall be entitled to withdraw from the
provisions of this clause or claim at any such proceedings that it is not bound by this
clause or such proceedings;
	 
	14.9.2	 	are severable from the rest of this Agreement and shall remain in effect despite
the termination, cancellation, invalidity or alleged invalidity of this Agreement for any
reason whatsoever.






	14.10	 	Nothing in this clause 14 shall preclude either Party from seeking interim and/or urgent
relief from a Court of competent jurisdiction and to this end the Parties hereby consent to the
non-exclusive jurisdiction of the High Court of South Africa (Witwatersrand Local Division).





			
	 	 	 
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	15.	 	BREACH






	15.1	 	Subject to the provisions of clauses 7 and 15.2, in the event of either Party (“the
Defaulting Party”) committing a breach of any of the terms or conditions of this
Agreement, and failing to compensate the other Party (“the Aggrieved Party”) fully with
respect to such breach or otherwise failing to remedy such breach within 30 (thirty) days
of receipt of written notice requiring it to rectify or remedy such breach, or, if such
breach cannot with reasonable diligence be remedied within such period, fail to commence
such remedy within a period of 30 (thirty) days, and thereafter diligently prosecute same
to completion, then and in such event the Aggrieved Party shall be entitled, subject to
clause 15.2 below, either to claim specific performance of the terms of this Agreement or
to cancel this Agreement forthwith on written notice and in either event, claim and
recover damages from the Defaulting Party.
	 
	15.2	 	Notwithstanding anything to the contrary contained in this Agreement,






	15.2.1	 	neither Party shall be entitled to cancel this Agreement on the grounds of a
breach of a term of this Agreement or on the grounds of a breach of a Warranty,
unless it is a material breach of such term / Warranty going to the root of this
Agreement and:






	15.2.1.1	 	an award of damages shall not serve to compensate the
Aggrieved Party; or
	 
	15.2.1.2	 	such damages are not paid to the Aggrieved Party within 14
(fourteen) days of the final determination thereof (whether such
determination is by way of written agreement between the
Parties or by way of an order by a court of competent jurisdiction
or an award pursuant to the arbitration provisions provided for in
clause 14); and






	15.2.2	 	neither Party shall be entitled to cancel this Agreement unless such breach,
when taken together with any other such breaches, shall give rise to liabilities
exceeding R43 333 333,00; and





			
	 	 	 
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	15.2.3	 	for the sake of clarity, no breach by either Party of any trading terms
arising out of or in relation to their future trading relationship shall constitute
a breach of the provisions of this Agreement.






	16.	 	GENERAL






	16.1	 	Remedies






	 	 	No remedy conferred by this Agreement is intended to be exclusive of any other remedy which
is otherwise available under any law. Each remedy shall be cumulative and in addition to
every other remedy given under this Agreement or under any existing or future law. The
election of any one or more remedy by either of the Parties shall not constitute a waiver
by such Party of the right to pursue any other remedy.






	16.2	 	Severance






	 	 	If any provision of this Agreement, which is not material to its efficacy as a whole, is
rendered void, illegal or unenforceable in any respect under any law, it shall be deemed
to be severed and the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby and the Parties shall endeavour in
good faith to agree an alternative provision to the void, illegal or unenforceable
provision.






	16.3	 	Survival of Rights, Duties and Obligations






	 	 	Termination of this Agreement for any cause shall not release a Party from any  liability
which at the time of termination has already accrued to such Party or which thereafter may accrue
in respect of any act or omission prior to such termination.





			
	 	 	 
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	16.4	 	Entire Agreement






	 	 	This Agreement (including its annexures) contains the entire agreement between the Parties as
regards the import hereof, and supersedes any prior written or oral agreement between them in
relation to the transaction and the matters dealt with in this Agreement. Save as expressly
provided for in this Agreement, neither Party shall have any claim or right arising from any
undertaking, representation or warranty not included in this Agreement.






	16.5	 	Non-variation






	 	 	Save as otherwise expressly provided, no agreement to amend, add to or otherwise vary or waive any
of the provisions of this Agreement or to cancel or terminate it shall be effective unless made in
writing and duly signed by the Parties or on their behalf by their duly authorised agents.






	16.6	 	Assignment






	 	 	Save as otherwise expressly provided in this Agreement, neither Party may cede or delegate this
Agreement or any of its rights and obligations under it without the prior written consent of the
other.






	16.7	 	Further Assurance






	 	 	Each Party shall co-operate with the other Party and execute and deliver to the other Party such
other instruments and documents and take such other actions as may be reasonably requested from
time to time in order to carry out, evidence and confirm their rights and the intended purpose of
this Agreement.






	16.8	 	Successors Bound






	 	 	This Agreement shall be binding on and shall inure for the benefit of the successors and permitted
assigns of each of the Parties.





			
	 	 	 
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	16.9	 	Interest
	 
	 	 	Save where otherwise specifically provided for in this Agreement, any amounts due and
owing by any Party to the other Party in terms of this Agreement which are not paid on
the due date thereof shall attract interest at Prime from the due date to the date of
payment.






	17.	 	ADDRESSES FOR LEGAL PROCESS AND NOTICES






	17.1	 	The Parties choose for the purposes of this Agreement the following
addresses and telefax numbers:





	 	 	 	 	 
	17.1.1
	 	The Seller:	 	Suite 300
	 
	 	 	 	16052 Swingley Ridge Road
	 
	 	 	 	St Louis
	 
	 	 	 	Missouri
	 
	 	 	 	63017
	 
	 	 	 	United States of America
	 
	 	 	 	 
	 
	 	 	 	Attention: the CEO and the General Counsel
	 
	 	 	 	Telefax No: (091) 636 728 3010
	 
	 	 	 	 
	17.1.2
	 	The Purchaser:	 	Building IV Morningview Office Park
	 
	 	 	 	Middle Road
	 
	 	 	 	Morningside
	 
	 	 	 	2196
	 
	 	 	 	 
	 
	 	 	 	Attention: Nkosi-Yawo Gugushe
	 
	 	 	 	Telefax No: (+2711) 884 4923






	17.2	 	Any legal process to be served on the Parties may be served on it at the address
specified for it in clause 17.1 and it chooses that address as its domicilium citandi et
executandi for all purposes under this Agreement.






			
	 	 	 
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	17.3	 	Any notice or other communication to be given to the Parties in terms of this Agreement
shall be valid and effective only if it is given in writing, provided that any notice
given by telefax shall be regarded for this purpose as having been given in writing.






	17.4	 	A notice to either Party which is delivered to the Party by hand at that address shall be
deemed to have been received on the day of delivery, provided it was delivered to a
responsible person during ordinary business hours.






	17.5	 	Each notice by telefax to a Party at the telefax number specified for it in clause 17.1
shall be deemed to have been received (unless the contrary is proved) within 4 (four)
hours of transmission if it is transmitted during normal business hours of the receiving
Party or within 4 (four) hours of the beginning of the next Business Day after it is
transmitted, if it is transmitted outside those business hours.






	17.6	 	Notwithstanding anything to the contrary in this clause 17, a written notice or other
communication actually received by either Party (and for which written receipt has been
obtained) shall be adequate written notice or communication to it notwithstanding that
the notice was not sent to or delivered at its chosen address.






	17.7	 	Either Party may by written notice to the other Party change its address for the purposes
of clause 17.1 to any other address (other than a post office box number) provided that
the change shall become effective on the 7th (seventh) day after the receipt
of the notice.






	18.	 	COSTS






	18.1	 	Each Party shall pay its own costs incurred in the negotiation and preparation of
this Agreement.






	18.2	 	Any stamp duty payable with respect to the acquisition of the Sale Shares by the Purchaser
shall be borne by the Purchaser.







			
	 	 	 
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	19.	 	COUNTERPARTS
	 
	 	 	This Agreement may be signed in any number of counterparts, all of which taken together
shall constitute one and the same instrument. Either Party may enter into this Agreement by
signing any such counterpart.




SIGNED at St.Louis,
Mo on 5th February 2007.




	 	 	 	 	 
	 	For: THERMADYNE INDUSTRIES, INC.

 	 
	 	/s/ PATRICIA S. WILLIAMS	 
	 	Signatory: PATRICIA S. WILLIAMS	 
	 	Capacity:  VICE PRESIDENT, GENERAL COUNSEL

Authority:  RESOLUTION 	 
	 


SIGNED at
SANDTON on 5TH FEBRUARY 2007.




	 	 	 	 	 
	 	For:	 	THERMAWELD INDUSTRIES
(PROPRIETARY) LIMITED	 
	 
	 	/s/ N. GUGUSHE
 	 
	 	Signatory: N. GUGUSHE 	 
	 	Capacity:  DIRECTOR

Authority:  RESOLUTION 	 
	 




			
	 	 	 
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