EXHIBIT 2.2
STATE ELECTRICITY COMMISSION OF VICTORIA
and
THE STATE OF VICTORIA
and
PACIFICORP AUSTRALIA HOLDINGS PTY LTD
and
PACIFICORP HOLDINGS, INC.
________________________________________________
Share Sale Agreement
relating to POWERCOR AUSTRALIA LIMITED
________________________________________________
Mallesons Xxxxxxx Xxxxxx
Solicitors
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Telephone: (00) 0000 0000
Facsimile: (00) 0000 0000
Reference: MELBOURNE/JAP/58197.01
THIS SHARE SALE AGREEMENT is made on 16 November 1995 between the following
parties:
1. STATE ELECTRICITY COMMISSION OF VICTORIA of Xxxxx 0, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx 0000 ("Seller");
2. The HONOURABLE XXXX XXXXXX XXXXXXXXX in his capacity as Treasurer of the
State of Victoria for and on behalf of the Crown in right of the State
("State");
3. PACIFICORP AUSTRALIA HOLDINGS PTY LTD ACN 068 231 005 of Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, 0000 in its capacity as Buyer and Asset
Buyer; and
4. PACIFICORP HOLDINGS, INC. of 000 XX Xxxxxxxxx - 0000 XXX, Xxxxxxxx,
Xxxxxx, Xxxxxx Xxxxxx of America ("Guarantor").
RECITALS:
A. The Seller is the beneficial owner of the Shares.
B. The Seller agrees to sell (and procure the sale by the Nominees) and the
Buyer agrees to buy, the Shares on the terms and conditions set out in
this agreement.
C. The parties have agreed to effect the following transactions in the
following sequence at Completion:
(a) the Asset Buyer will, under the Asset Sale Agreement, purchase the
Plant and Equipment and the Intellectual Property from the Company
for $1,650,000,000;
(b) the Company will pay a dividend from the retained earnings of the
Company for the period ended on 30 June 1995 of $23,750,000 to the
Seller;
(c) the Company will pay a dividend from the earnings of the Company
for the period after 1 July 1995 to the Seller;
(d) the Buyer will pay the Estimated Purchase Price to the Seller;
(e) the Company will pay the Estimated State Equivalent Tax to the
State;
(f) the Company will repay the SECV Loan; and
(g) the Company will repay the TCV Loan.
D. Immediately after the sale of the Shares, the Company will, under the
Asset Purchase Agreement, purchase the assets acquired by the Asset
Buyer under the Asset Sale Agreement.
E. Thus, if Completion occurs on 12 December 1995, the estimated total
proceeds to the State and the Seller, including dividends from the
profits of the Company for the year ended 30 June 1995 which were not
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provided for at 30 June 1995 (but excluding any working capital
movements from signing to Completion) are set out as follows:
(a) Sale of Shares $383,832,072
(b) Repayment of SECV Loan $466,704,000
(c) Repayment of TCV Loan $553,953,629
(d) Payment of Estimated State Equivalent
Tax on the sale of the Plant and
Equipment and Intellectual Property $136,684,000
(e) Payment of dividends on the profits
from the sale of the Plant and Equipment
and Intellectual Property $583,094,000
(f) Payment of dividends on profits in the
period after 1 July 1995 $ Nil
(g) Payment of dividends on pre-30 June 1995 profits $23,750,000
(h) Payment of stamp duty $2,302,993
$2,150,320,694
______________
F. The State agrees to guarantee the obligations of the Seller under this
agreement.
G. The Guarantor agrees to guarantee the obligations of the Buyer under
this agreement.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"ADVISERS" means all of the advisers of the State or the Seller in relation to
the sale of the Company and all other transactions contemplated by this
agreement including without limitation, CS First Boston Australia Limited,
KPMG, KPMG Corporate Finance (Vic.) Pty Ltd, Xxxxxxxx Hollingdale & Page and
Mallesons Xxxxxxx Xxxxxx.
"ALLOCATION STATEMENT" means, in relation to the Company, any Statement which,
for the purposes of section 117 or 137 of the Electricity Act, is an
allocation statement pursuant to which any property, rights or liabilities of
Electricity Services Victoria were vested in the Company and includes the
Electricity Services Victoria allocation statement dated 29 September 1994 (as
amended on 7 March 1995 and 7 August 1995) (the "ESV Allocation Statement").
"APPROVAL DATE" means the date on which the Company is able to give the
Financial Assistance, being:
(a) (where no application is made under section 205(12) of the Corporations
Law) the first Business Day after the 21 day notice period referred to
in section 205(12) has expired; or
(b) (where an application is or applications are made under section 205(12)
of the Corporations Law) the first Business Day after:
(1) the application or each application has been withdrawn; or
(2) the Court has approved the giving of the Financial Assistance,
whichever applicable date first occurs.
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"APPROVED SELL DOWN TRANSACTION" means the issue, transfer, sale or other
disposal of:
(a) Equity Securities in the Buyer, the Company, a shareholder in the Buyer
or any Group Member held by the Pacificorp Group to any person; or
(b) the assets or undertaking, or any substantial part of the assets or
undertaking, of the Buyer, the Company, a shareholder in the Buyer or
any Group Member held by the Pacificorp Group to any person,
which takes place,
(c) after Completion (as that term is defined and used in the agreement) has
occurred with respect to the sale of the issued share capital in each of
Citipower Ltd, Eastern Energy Limited, Solaris Power Limited and
Powercor Australia Ltd; or
(d) with the prior written consent of the Treasurer, or
(e) to a person other than an Australian-based financial institution,
investment company or pension or superannuation fund; or
(f) pursuant to the Buyer implementing the steps envisaged by the Buyer with
respect to the proposed compliance with section 205 of the Corporations
Law in accordance with this agreement and the sale of the Plant and
Equipment and Intellectual Property to the Company under the Asset
Purchase Agreement,
provided:
(g) the issue, transfer, sale or other disposal of the Equity Securities
does not form part of an initial public offering on a recognised stock
exchange nor are any Equity Securities in the person to whom the assets
or undertaking are sold, to be issued, transferred, sold or otherwise
disposed of as part of an initial public offering on a recognised stock
exchange; and
(h) the aggregate number of Equity Securities in the Company held by the
Pacificorp Group does not reduce below 75% of the total number of Equity
Securities in the Company or (as appropriate) the aggregate value of the
assets or undertaking of the Company (calculated at book value,
excluding intangibles, cash and short term marketable securities) held
by the Pacificorp Group does not reduce below 75% of the total value of
the assets or undertaking of the Company (calculated at book value,
excluding intangibles, cash and short term marketable securities) .
"ASSET BUYER" means the Buyer in its capacity as Asset Buyer under the Asset
Sale Agreement.
"ASSET SALE AGREEMENT" means the agreement so titled of today's date between
the Company and the Asset Buyer under which the Asset Buyer shall acquire the
Plant and Equipment and the Intellectual Property.
"ASSET PURCHASE AGREEMENT" means the agreement so titled to be entered into
between the Asset Buyer and the Company under which the Company shall purchase
the assets acquired by the Asset Buyer under the Asset Sale Agreement.
"ASSOCIATE" has the meaning given to that term in the Electricity Act.
"AUDITOR-GENERAL" means the Auditor-General for the State.
"AUTHORISATION" includes:
(a) any consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with a
Governmental Agency; and
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(b) in relation to anything which may be proscribed or restricted in whole
or in part by law or otherwise if a Governmental Agency intervenes or
acts in any way within a specified period after lodgement, registration
or other notification of anything, the expiration of that period without
the intervention or action by that Governmental Agency.
"BASE RATE" means, in respect of a given date, the rate percent per annum
which is described as the "Average Mid Rate" and appears on the page entitled
"BBSW" on the Reuters Monitor System at or about 10.00 am (Melbourne time) on
that date for a bank accepted xxxx of exchange having a tenor of 30 days.
"BORROWING ACT" means the Borrowing and Investment Powers Xxx 0000.
"BUSINESS" means the businesses of the distribution of electricity, the
retail sale of electricity and the provision of related field, technical and
engineering services carried on by the Company in the State of Victoria.
"BUSINESS DAY" means a day on which banks are open for business in Melbourne,
excluding a Saturday or a Sunday or a public holiday.
"BUYER" means Pacificorp Australia Holdings Pty Limited ACN 068 231 005.
"BUYER'S WARRANTIES" means the warranties and representations of the Buyer set
out in clause 8.1.
"COMPANY" means POWERCOR AUSTRALIA LIMITED ACN 064 651 109.
"COMPANY'S FUND" means that part of the Victorian Electricity Industry
Superannuation Fund which relates to the Company.
"COMPLETION" means completion of the sale and purchase of the Shares under
clause 5.
"COMPLETION DATE" means the first Business Day after the Approval Date, or
such other date as may be agreed in writing between the parties.
"COMPLETION DATE PAYMENTS" means the payments to be made on the Completion
Date under clause 4.2(b).
"CONTROL" has the same meaning as that in parts 3.6 and 3.7 of the
Corporations Law.
"CONTROLLING GROUP MEMBER" has the meaning given to that term in clause
5.6(c)(4).
"DATA ROOM DOCUMENTATION" means all documentation referred to in schedule 2.
"DEPOSIT" means $50,000,000.
"DISCLOSURES" means the information described in schedule 2.
"DISPOSE OF" includes transfer, sell or otherwise dispose of any right, title
or interest in or otherwise allow any person to acquire a Relevant Interest
in, but does not include the giving of any Security Interest to a bank or
other financial institution.
"DISTRIBUTION LICENCE" means the distribution licence issued to the Company by
the Office of the Regulator-General on 3 October 1994, as amended on 7 August
1995.
"DOLLARS" "A$" and "$" means the lawful currency of the Commonwealth of
Australia.
"DRAFT BALANCE SHEET" means the:
(a) unaudited draft balance sheet of the Company as at 30 September 1995
based on accounts prepared by management of the Company; and
(b) any notes attached to and forming part of that balance sheet,
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a copy of which is set out in annexure C.
"DUTY" means any stamp, transaction or registration duty or similar charge
imposed by any Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge or other amount imposed in respect of the
above, but excludes any Tax.
"ELECTRICITY ACT" means the Electricity Industry Xxx 0000.
"EMPLOYEES" means those employees engaged in the Business as at Completion.
"ENERGY LEVY ORDER" means any order made under section 158B of the Electricity
Act.
"EQUITY SECURITIES" means, in relation to a company, fully or partly paid
shares in the capital of that company (including stock), options in respect of
or rights to subscribe for any such shares, securities (debt or equity)
convertible into or exchangeable for any such shares, and equity securities
the income and/or capital rights of which are determined by reference to the
income and/or capital rights of any such shares in the company (together with
options to subscribe for any such securities and securities convertible into
or exchangeable for any such securities).
"ESTIMATED PURCHASE PRICE" means $383,832,072, being the estimated amount of
the Purchase Price under clause 4.1(a)(1), subject to adjustment under clause
4.1(a)(4) or 4.1(b)(3).
"ESTIMATED STATE EQUIVALENT TAX" has the meaning given to that term in clause
10.8.
"ESV ALLOCATION STATEMENT" has the meaning given that term in the definition
of "Allocation Statement".
"FINANCIAL ASSISTANCE" means the financial assistance which the Company may
give for the purpose of, or in connection with, the acquisition by the Buyer
of the Shares, the procedure relating to which has been agreed between the
parties.
"GOVERNMENTAL AGENCY" means the government of any country or any state,
territory, municipality or other political subdivision of a country, and any
minister, administrative or judicial body, department, commission, authority,
instrumentality, tribunal, agency or entity of any such government.
"GROUP" means, in relation to each shareholder in the Buyer or the Asset Buyer
(and each person who holds a beneficial interest in the shares held by that
shareholder) ("first named person"):
(a) the Ultimate Holding Vehicle of that first named person; and
(b) every person interposed between that Ultimate Holding Vehicle and the
first named person,
with each such vehicle, person or corporation being a "Group Member".
"INTELLECTUAL PROPERTY" means rights to all patents, copyrights and designs
used in the business of the Company, and includes:
(a) rights under licence in respect of such patents, copyrights or designs;
and
(b) equitable rights in respect of such patents, copyrights or designs or
such licences.
"JUNE ACCOUNTS" means the financial statements of the Company comprising:
(a) the audited balance sheet of the Company as at 30 June 1995;
(b) the audited profit and loss account and statement of cash flows of the
Company for the period 11 May 1994 to 30 June 1995; and
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(c) any notes attached to and forming part of those financial statements,
a copy of which is set out in annexure A.
"LICENCES" means the Distribution Licence and the Retail Licence.
"NOMINEES" means Messrs Greaves, Drewett, Xxxxxxxx and XxXxxxx.
"OFFICER" means a director or secretary of the relevant party or Company (as
the case may be).
"PACIFICORP GROUP" means the Guarantor and any wholly owned or wholly
Controlled entity of the Guarantor.
"PLANT AND EQUIPMENT" means all:
(a) plant, equipment and articles owned by the Company; and
(b) (in relation to all land which is not owned by the Company) structures
permanently affixed to land and other improvements to land owned by the
Company (but not the land itself),
including without limitation all electricity transmission and distribution
lines, power poles, underground cables, stations, substations, switch yard
equipment and all other plant and equipment used in the reticulation,
transformation or metering of electrical power which, in its ordinary use, is
located in a fixed position wherever located, but excludes motor vehicles and
mobile plant owned or leased by the Company and, for the avoidance of doubt,
does not include capital works in progress.
"POWER" means any right, power, authority, discretion or remedy conferred on
the parties by this agreement or any applicable law.
"PROHIBITED INTEREST" has the meaning given to that term in the Electricity
Act (as modified by the draft regulations set out in schedule 5).
"PURCHASE PRICE" means the price payable for the Shares under clause 4.1.
"RELEVANT AGREEMENT" has the meaning given to that term in the Electricity
Act.
"RELEVANT INTEREST" has the meaning given that expression in the Corporations
Law.
"RETAIL LICENCE" means the retail licence issued to the Company by the Office
of the Regulator-General on 3 October 1994 as amended on 7 August 1995.
"SALES TAX AGREEMENT" means the sales tax agreement to be entered into between
the Seller and the Company in substantially the same form as set out in
annexure D.
"SECURITY INTEREST" means an interest or power:
(a) reserved in or over an interest in any asset including, but not limited
to, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset under
a xxxx of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of a debt or any other monetary obligation
or the performance of any other obligation and includes, but is not limited
to, any agreement to grant or create any of the above.
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"SECV LOAN" means any liability pursuant to sections 121 and 141 of the
Electricity Act (on such terms and conditions as apply on the Completion Date)
of the Company to the Seller arising as a result of a direction given by the
Treasurer under sub-sections 153W(1) or (2) of the Electricity Act (which on
the Completion Date shall not exceed $466,704,000).
"SELLER'S WARRANTIES" means the warranties and representations of the Seller
set out in schedule 1.
"SHARES" means the five issued ordinary shares of $1.00 each in the capital of
the Company.
"STATE EQUIVALENT TAX" means such amounts due to the Treasurer under section
88(1)(a) of the State Owned Enterprises Act 1992 in respect of tax (not being
sales tax) that would be payable by the Company if it were liable to pay taxes
under the law of the Commonwealth.
"TARGET GROUP MEMBER" has the meaning given to that term in clause 5.6(c)(4).
"TARIFF ORDER" means any order made under section 158A of the Electricity Act.
"TAX" means any tax, levy, charge, impost, duty, fee, deduction or withholding
which is assessed, levied, imposed or collected by any State Governmental
Agency and includes, but is not limited to any interest, fine, penalty,
charge, fee or any other amount imposed on, or in respect of, any of the above
and any amount imposed under section 88 of the State Owned Enterprises Act
1992 but excludes:
(a) any Duty; and
(b) the SECV Loan.
"TCV" means Treasury Corporation of Victoria.
"TCV LOAN" means the amount specified in clause 5.9(a)(2).
"THIRD PARTY CLAIM" has the meaning given to that term in clause 11.3.
"TREASURER" means the Treasurer of the State of Victoria.
"ULTIMATE HOLDING VEHICLE" means:
(a) in relation to a body corporate, the same meaning as that given to
"Ultimate Holding Company" in the Corporations Law; and
(b) in relation to any other investment vehicle (trust or otherwise), the
person who Controls that investment vehicle and is itself not Controlled
by any person.
1.2 INTERPRETATION
In this agreement, unless the context otherwise requires:
(a) headings and underlinings are for convenience only and do not affect the
interpretation of this agreement;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined
in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate and any Governmental Agency;
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(f) a reference to a clause, party, annexure, exhibit or schedule is a
reference to a clause of, and a party, annexure, exhibit and schedule
to, this agreement and a reference to this agreement includes any
annexure, exhibit and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, and a reference to a statute
includes all regulations, proclamations, ordinances and by-laws issued
under that statute;
(h) a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(i) a reference to a party to a document includes that party's successors
and permitted assigns;
(j) where the day on or by which any thing is to be done is not a Business
Day, that thing must be done on or by the next Business Day;
(k) no rule of construction applies to the disadvantage of a party because
that party was responsible for the preparation of this agreement or any
part of it;
(l) a covenant or agreement on the part of two or more persons binds them
jointly and severally;
(m) a reference to an agreement other than this agreement includes an
undertaking, agreement or legally enforceable arrangement or
understanding whether or not in writing;
(n) a reference to an asset includes all property of any nature, including,
but not limited to, a business, and all rights, revenues and benefits;
(o) a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(p) a reference to liquidation includes appointment of an administrator,
compromise, arrangement, merger, amalgamation, reconstruction,
winding-up, dissolution, assignment for the benefit of creditors,
scheme, composition or arrangement with creditors, insolvency,
bankruptcy, or any similar procedure or, where applicable, changes in
the constitution of any partnership or person, or death;
(q) terms used in this agreement and defined in the Corporations Law at the
date of this agreement have the meanings given to them in the
Corporations Law at that date;
(r) the benefit of this agreement to the extent it relates to any
undertaking given by the Buyer to the State in relation to its
contributions to the Company's Fund, shall be held by the State
beneficially for itself and as trustee for all other contributing
employers to, and the trustee of, that Fund; and
(s) the benefit of this agreement to the extent it relates to a
representative of the Company or an Adviser, shall be held by the State
beneficially for itself and as trustee for that representative or
Adviser (as the case may be).
2. SALE AND PURCHASE
2.1 SALE OF SHARES
Subject to the terms of this agreement, the Seller must sell (and procure the
Nominees to sell) free of Security Interests and other third party rights and
the Buyer must buy the Shares for the Purchase Price on Completion.
2.2 TREASURER'S APPROVAL
For the purposes of section 12A(1)(e) of the State Electricity Commission Xxx
0000, the Treasurer (in his capacity as such) hereby approves the sale of the
Shares by the Seller on and subject to the terms of this agreement.
2.3 METHOD OF PAYMENT
All payments to be made under this agreement must be made by bank cheque or in
such other immediately available funds as may be agreed in writing between the
Seller and the Buyer.
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2.4 PROFIT ENTITLEMENT
The Seller shall be entitled to all accumulated profits (after State
Equivalent Tax) of the Company in respect of the period up to and including 30
June 1995 and accordingly, the Seller shall procure, to the extent it has not
already been done, that the Company declares and pays a dividend in an amount
equal to that profit entitlement, on or before the Completion Date.
2.5 DIVIDEND PAYMENT
The Buyer shall be entitled, at any time before the date which is 5 Business
Days before Completion, to notify the Seller that it wishes the Company to
declare and pay to the Seller a dividend out of the profit (after State
Equivalent Tax), including all profits on the sale of the Plant and Equipment
and Intellectual Property, in respect of the period on and from 1 July 1995.
The Seller shall procure that the board of directors of the Company declares
and pays to the Seller, to the maximum extent permissible under the
Corporations Law, the amount of the dividend so notified. Save for the
dividend to be paid to the Seller as contemplated under this clause, any
dividend which is provided for in the June Accounts and the dividend referred
to in Recital E(g) no dividend or other distribution of profits or capital has
been declared or made to the Shareholders in the Company on or since 1 July
1995 nor will be declared or made prior to Completion.
2.6 SECTION 205
The Seller shall pass, and procure that the Nominees ensure that the Company
passes resolutions in relation to obtaining all approvals, authorisations or
other requirements set out in section 205 of the Corporations Law in a form
proposed by the Buyer and agreed to by the Seller.
3. DEPOSIT
3.1 PAYMENT
If Completion does not occur on 12 December 1995 then the Buyer must, on that
date, pay to the Seller the Deposit, unless the failure to Complete arises
solely because of:
(a) a Court failing to make an order under section 205(13) of the
Corporations Law if a person not associated with the Buyer makes an
application under section 205(12) of the Corporations Law with respect
to the Financial Assistance;
(b) the Foreign Investment Review Board or the Treasurer (after being given
by the Buyer all necessary information and notices in a timely and
proper manner) failing to provide an Authorisation required (or
reasonably necessary) to complete the purchaser of the Shares; or
(c) a default by the State or the Seller in meeting their obligations to
complete under this agreement.
If any of the reasons specified in (a), (b) or (c) above cease to prevent
Completion occurring then the Buyer must, on the first Business Day after the
reason ceases to prevent Completion occurring, pay to the Seller the Deposit.
3.2 NON-REFUND
The Deposit shall be refunded to the Buyer (and the Seller must refund the
Deposit) if the State exercises its right to terminate this agreement under
clause 5.7 and the Buyer is not in breach of this agreement.
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3.3 NOTICE OF TERMINATION FOR BREACH
If the Buyer does not pay to the Seller the Deposit as required under clause
3.1, then the State may, at any time after 12 December 1995 give written
notice (the "First Notice") to the Buyer that it may terminate this agreement
(and the Asset Sale Agreement and Asset Purchase Agreement) by a further
notice in writing to the Buyer, if the Buyer does not pay the Deposit
(together with interest calculated in accordance with clause 4.3) within three
Business Days of receipt of the First Notice by the Buyer.
3.4 AUTOMATIC TERMINATION
If the Deposit and interest is not paid within such period then, the Seller
may at any time after the expiration of the three Business Day period
terminate this agreement promptly by notice in writing to the Buyer. On
termination of this agreement, the Asset Sale Agreement and the Asset Purchase
Agreement shall automatically terminate.
3.5 REMEDIES
If this agreement is terminated under this clause then in addition to any
other rights provided by law, the Seller retains the rights it has against the
Buyer, including without limitation, the right to claim and recover damages
for loss of profit.
4. PURCHASE PRICE AND PAYMENTS
4.1 AMOUNT
The price ("Purchase Price") payable for the Shares is as follows:
(a) the sum of:
(1) $383,832,072;\
(2) the amount (if any) by which the State Equivalent Tax paid by the
Company for the period commencing on and from 1 July 1995 and
ending on the Completion Date is less than the Estimated State
Equivalent Tax for the equivalent period; and
(3) an amount (if any) equal to the amount by which the aggregate
Victorian Duty paid by the Company, Asset Buyer or the Buyer in
respect of:
(i) the sale of the Plant and Equipment and Intellectual
Property from the Company to the Asset Buyer under the Asset
Sale Agreement and the sale of assets by the Asset Buyer to
the Company under the Asset Purchase Agreement;
(ii) the sale of Shares under this agreement; and
(iii) financing relating to the foregoing (if any),
is less than $2,302,993; and
(4) the amount (if any) by which any dividend declared and paid
pursuant to clause 2.5 is less than $583,094,000,
less
(b) the sum of:
(1) the amount (if any) by which the State Equivalent Tax paid by the
Company for the period commencing on and from 1 July 1995 and
ending on the Completion Date exceeds the Estimated State
Equivalent Tax for the equivalent period; and
(2) an amount (if any) equal to the amount by which the aggregate
Victorian Duty paid by the Company, Asset Buyer or the Buyer in
respect of:
(i) the sale of the Plant and Equipment and Intellectual
Property from the Company to the Asset Buyer and the sale of
assets by the Asset Buyer to the Company under the Share
Purchase Agreement;
(ii) the sale of Shares under this agreement; and
(iii) financing relating to the foregoing (if any),
exceeds $2,302,993; and
(3) the amount (if any) by which any dividend declared and paid
pursuant to clause 2.5 exceeds $583,094,000.
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4.2 PAYMENTS
(a) Subject to clause 3.1, on 12 December 1995 the Buyer will pay to the
Seller the Deposit.
(b) On the Completion Date, the Buyer and the Company will make the
following payments:
(1) the Company will pay any dividend pursuant to clause 2.5 to the
Seller (the "Dividend Payment");
(2) the Company will pay the Estimated State Equivalent Tax to the
State;
(3) the Buyer will pay the Estimated Purchase Price to the Seller
(less any Deposit paid);
(4) the Company will repay the SECV Loan pursuant to clause 5.9 (the
"SECV Loan Payment"); and
(5) the Company will repay the TCV Loan and other amounts owing to TCV
pursuant to clause 5.9 (the "TCV Loan Payment").
(c) Within 7 days after payment of both the Duty payable pursuant to clause
14.3 and the State Equivalent Tax payable pursuant to clause 10.8, the
Buyer will provide written notice, and evidence, to the Seller that
those payments have been made. The Buyer or the Seller (as appropriate)
must, within 7 days after the notice referred to above is provided, pay
the amount of the adjustment to the Purchase Price under clause 4.1 to
the other party.
4.3 INTEREST
If:
(a) any party or the Company fails to pay any sum payable by it under this
agreement at the time and otherwise in the manner provided in this
agreement, that party must pay interest on that sum from the due date of
payment until that sum is paid in full;
(b) the Buyer or the Seller is obliged to pay money under clause 4.2(c), the
Buyer or Seller (as the case may be) must pay interest on that sum from
the Completion Date until that sum is paid in full; or
(c) Completion does not occur on the first Business Day after the Approval
Date due to the fault of the Buyer, the Buyer must pay interest on the
Estimated Purchase Price (less the Deposit paid) from that Business Day
until that sum is paid in full,
at the rate equal to the Base Rate plus 4%. The parties acknowledge and agree
that if Completion does not occur on 12 December 1995 solely because an
application is made under section 205(12) of the Corporations Law in respect
of the Financial Assistance, then the Buyer must pay interest on the Estimated
Purchase Price (less the Deposit paid) from that date until the sum is paid in
full at the rate equal to the Base Rate. Interest accrues from day to day and
is payable on demand.
12
5. COMPLETION
5.1 DATE FOR COMPLETION
The actions required on the Completion Date, including Completion shall
commence at 10 am on the Completion Date at the office of the Seller's
solicitors, Mallesons Xxxxxxx Xxxxxx, 00xx Xxxxx, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx.
5.2 COMPLETION DATE ACTIONS
On the Completion Date, the following actions shall be taken and shall be
presumed to have occurred in the order listed:
(a) completion under the Asset Sale Agreement;
(b) the Dividend Payment;
(c) Completion under this Agreement including payment of the Estimated
Purchase Price;
(d) payment of the Estimated State Equivalent Tax;
(e) the TCV Loan Payment; and
(f) the SECV Loan Payment.
5.3 DELIVERY OF DOCUMENTS
At Completion, the Seller must:
(a) deliver to the Buyer share certificates for the Shares;
(b) deliver to the Buyer completed transfers of the Shares to the Buyer in
registrable form, executed by the Seller and, where applicable, the
Nominees;
(c) deliver to the Buyer the certificate of incorporation, common seal and
all statutory, minute and share certificate books of the Company;
(d) deliver to the Buyer the written resignations of all directors of the
Company except those directors whom the Buyer notifies the Seller no
later than five Business Days before the Completion Date that it wishes
to retain, to be effective on the appointment of the directors to be
appointed at the Board meeting to be convened under clause 5.4;
(e) make available to the Buyer at the respective offices or places of
business of the Company:
(1) all ledgers, journals and books of account of the Company;
(2) all cheque books of the Company and a list of all bank accounts
maintained by the Company; and
(3) all documents in the possession of the Company relating to the
ownership and use of the assets of the Company;
(f) deliver to the Buyer copies of the Distribution Licence and the Retail
Licence; and
(g) deliver to the Buyer one counterpart of the Sales Tax Agreement duly
executed by the Seller.
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5.4 FIRST MEETING
At Completion, the Seller must ensure that a meeting of the directors or
shareholders (as appropriate) of the Company is convened and conducts the
following business:
(a) approval of the registration of the Buyer or its nominee as the holder
of the Shares in the books of the Company, subject to the payment of
Duty on the transfer of the Shares;
(b) appointment of the nominees of the Buyer as directors of the Company
with effect from the close of the meeting;
(c) revocation of all existing mandates for the operation of bank accounts
of the Company and approval of new mandates in favour of the officers of
the Company nominated by the Buyer;
(d) acceptance of the resignations of the existing directors (except those
directors to be retained as notified to the Seller under clause 5.3(d)),
with effect from the close of the meeting; and
(e) adoption of memorandum and articles of association prepared by the
Buyer.
5.5 SECOND MEETING
At Completion, the Seller and the Buyer must ensure that a meeting of the
directors or shareholders (as appropriate) of the Company is convened
following the meeting referred to in clause 5.4, and conducts the following
business:
(a) such action as may be required to facilitate the Buyer's financing for
this transaction; and
(b) authorising the dividend contemplated by this agreement.
5.6 BUYER'S OBLIGATIONS AT COMPLETION
At Completion the Buyer must:
(a) pay the Seller the Estimated Purchase Price and procure that the Company
pays the remaining Completion Date Payments pursuant to clause 4.2(b);
(b) deliver to the State covenants (in form and substance satisfactory to
the State) from each shareholder in the Buyer (and each person who holds
a beneficial interest in the shares held by that shareholder) (not being
a person who holds that interest by virtue of its shareholding or
investments in an Ultimate Holding Vehicle listed on a recognised stock
exchange) that it will not, except with the prior written consent of the
Treasurer, for two years after the Completion Date:
(1) create, grant or issue any Equity Securities in the Buyer (except
to the shareholders of the Buyer, where the relative percentage
beneficial ownership of shares in the Buyer (as they exist as at
the Completion Date) are maintained);
(2) dispose of any Equity Securities in the Buyer;
(3) transfer, sell or otherwise dispose of any right, title or
interest in the whole or any substantial part of the undertaking
or assets of the Buyer,
provided that nothing in this clause 5.6(b) shall prohibit an Approved
Sell Down Transaction (and the covenants referred to in this clause may
be so limited);
(c) deliver to the State in respect of each Group, covenants (in form and
substance satisfactory to the State) from each Group Member (not being a
Group Member who holds that interest by virtue of its shareholding or
investment in an Ultimate Holding Vehicle listed on a recognised stock
exchange), that it will not, except with the prior written consent of
the Treasurer, for two years after the Completion Date:
(1) create, grant or issue (or permit the creation, grant or issue of)
any Equity Securities, units or other interests in any Group
Member it Controls; or
(2) dispose of any Equity Securities, units or other interests in any
Group Member it Controls;
(3) transfer, sell or otherwise dispose of any right, title or
interest in the whole or any substantial part of the undertaking
or assets of any Group Member it Controls,
unless
(4) it (the "Controlling Group Member") is able to show to the
Treasurer, that the book value at cost of the Group's investment
in the Buyer constitutes less than 50% of the book value at cost
of the total assets (excluding intangibles, cash and short term
marketable securities) of the Group Member it Controls ("Target
Group Member"),
in which event
(5) the Controlling Group Member may dispose of up to 49.9% of the
Target Group Member (or 49.9% of the Target Group Member after
allowing for full dilution on the creation, grant or issue of any
Equity Securities, units or other interests in the Target Group
Member); and
(6) where the Controlling Group Member is the Ultimate Holding Vehicle
of the Target Group Member, any restriction that might otherwise
be imposed on the shareholders or investors in that vehicle shall
not apply,
provided that nothing in this clause 5.6(c) shall prohibit an Approved
Sell Down Transaction (and the covenants referred to in this clause may
be so limited);
(d) procure that the Asset Buyer delivers to the State the same covenants in
respect of each of its shareholders (and each person who holds a
beneficial interest in the shares held by that shareholder) and Group
Members as those to be delivered by the Buyer under paragraphs (b) and
(c) above (mutatis mutandis),
provided that nothing in this clause 5.6(d) shall prohibit an Approved
Sell Down Transaction (and the covenants referred to in this clause may
be so limited); and
(e) deliver to the Seller one counterpart of the Sales Tax Agreement duly
executed by the Company.
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5.7 TERMINATION BY LAPSE OF TIME
If:
(a) this agreement has not already been terminated by the State under clause
3.3; and
(b) Completion has not occurred on or before 28 February 1996 (or such other
date as the parties may have agreed in writing),
then either the Buyer on the one part or the State on the other part may, if
not in breach of this agreement, give written notice to the other of its
intention to terminate this agreement (and the Asset Sale Agreement and Asset
Purchase Agreement) after three Business Days of receipt of the notice. After
such notice has been delivered both parties shall use their best efforts to
reach Completion within the three day notice period. If Completion does not
occur within such period then this agreement, the Asset Sale Agreement and the
Asset Purchase Agreement shall automatically terminate on expiration of the
three Business Day notice period.
15
5.8 REMEDIES
If this agreement is terminated under clause 5.7 then in addition to any other
rights provided by law:
(a) each party is released from its obligations to continue performance
under this agreement except those imposing obligations of
confidentiality; and
(b) each party retains the rights it has against any other party in respect
of any past breach.
5.9 REPAYMENT OF LOANS
At Completion:
(a) the Buyer shall ensure that the Company has available to it sufficient
funds to repay, and the Buyer shall procure that the Company repays:
(1) the SECV Loan; and
(2) in respect of the TCV Loan, either:
(A) (if Completion occurs on 12 December 1995), $553,953,629
(being the TCV Loan); or
(B) (if Completion does not occur on 12 December 1995),
$553,953,629 together with interest accrued on that amount,
at the Cash Rate plus 0.05 per cent per annum, reset and
compounded daily from and including 13 December 1995 to the
Completion Date;
(b) the Buyer shall ensure that the Company has available to it sufficient
funds to pay and the Buyer shall procure that the Company pays (or the
Seller, as the case may be, shall pay) the following payments:
(1) if on the Completion Date the outstanding level of cash advances
made by TCV for working capital requirements exceeds the money
standing to the credit of the Company with TCV in respect of
dealings with TCV on or after the date of this agreement), then
the Company must pay to TCV the amount of the excess;
(2) if on the Completion Date the level of money standing to the
credit of the Company with TCV exceeds the outstanding level of
cash advances made by TCV for working capital requirements in
respect of dealings with TCV on or after the date of this
agreement, then TCV must pay to the Company the amount of the
excess;
(3) all Accrued Interest; and
(4) all outstanding TCV administration fees (being an amount per month
not to exceed $13,750); and
(c) the State shall deliver to the Buyer a full discharge and release in
respect of the SECV Loan, the TCV Loan, any other amounts owing to TCV
and any liability to the Treasurer under section 121 or section 141 of
the Electricity Act.
16
5.10 DEFINITIONS
For the purposes of clause 5.9:
(a) a certificate signed by an officer of TCV stating the aggregate amount
of such cash advances, all accrued interest and all TCV administration
fees is, in the absence of manifest error, conclusive evidence of that
value;
(b) "ACCRUED INTEREST" means in respect of transactions with TCV after the
date of this agreement, the net amount of interest which has accrued but
remains unpaid to the account of TCV or the Company from the date of
this agreement to the Completion Date. For the purposes of calculating
the accrued interest:
(1) all interest shall be calculated each day on the balance owing to
TCV or the Company;
(2) where on the relevant day there is a cash advance owing from the
Company to TCV, the interest rate shall be the Cash Rate plus 0.05
per cent per annum;
(3) where on the relevant day there is a deposit from the Company to
TCV, the interest rate shall be the Cash Rate less 0.05 per cent
per annum; and
(4) the aggregated amount of daily interest payable or received shall
be paid by TCV or the Company (as appropriate) on the last day of
each calendar month prior to Completion and at Completion (in
respect of the period from the first day of the month in which
Completion occurs to the day of Completion); and
(c) "CASH RATE" means on the relevant date, the rate per cent per annum
determined by TCV by taking the rates quoted on the page entitled "IIAM"
on the Reuters Monitor System at or about 11am (Melbourne time).
6. INTERDEPENDENCY
6.1 INTERDEPENDENCY BETWEEN AGREEMENTS
For the avoidance of doubt the parties acknowledge and agree:
(a) the Buyer shall not be obliged to complete this agreement if the Company
fails to complete under, or is otherwise in breach of, the Asset Sale
Agreement immediately before Completion; and
(b) that once Completion under this agreement and the Asset Sale Agreement
have occurred, as a chronological sequence of events, all deliveries and
payments will be deemed to have taken place in the order in which they
occurred.
7. AUDITOR-GENERAL REVIEW
7.1 AUDIT BY AUDITOR-GENERAL
The Buyer acknowledges that financial statements as nominated by the Treasurer
for the period from 1 July 1995 until 30 September 1995 may be audited by the
Auditor-General (or his agent) and/or reviewed by independent accountants
appointed by the Treasurer ("Treasurer's Accountants"), who may publish
accounts for any period up to and including 30 September 1995 or publish his
(or their) report on such accounts.
17
7.2 ACCESS TO BOOKS
The Buyer must grant, and procure that the Company grants, the Auditor-General
and the Treasurer's Accountants (and/or the agents of any of them) full and
free access at all reasonable times to those employees of the Company whose
knowledge or information is needed by the Auditor-General and/or the
Treasurer's Accountants (and/or the agents of any of them) and to all books,
records and other data pertaining to the Company, in order to enable the
Auditor-General and/or the Treasurer's Accountants to conduct his (or their)
audit(s).
8. BUYER'S OBLIGATIONS
8.1 BUYER'S WARRANTIES
The Buyer represents and warrants to the Seller and the State as at:
(a) the date of this agreement and the Completion Date that, except as set
out in schedule 4, no person has any legal or beneficial interest (or
obligation (actual, contingent or otherwise) to acquire a legal or
beneficial interest) in:
(1) the capital of the Buyer or the Asset Buyer; or
(2) (in relation to each shareholder in the Buyer and the Asset Buyer
which is not listed on any recognised stock exchange) the capital
of each Group Member;
(b) the date of this agreement and the Completion Date that, annexure B sets
out complete and accurate details of all agreements, arrangements or
understandings to which Group Members or shareholders in the Buyer or
the Asset Buyer (or each person who holds a beneficial interest in the
shares held by that shareholder) are a party which have (directly or
indirectly) an impact on or relate to:
(1) the financial and operating policies or management of the Company
or the Business;
(2) the activities of the Company as a licensee; or
(3) the exercise of any voting power in another Group Member.
(c) the date of this agreement and the Completion Date that, it has the
corporate power to enter into this agreement and has taken all necessary
action (including obtaining all shareholder approvals and
Authorisations) to authorise the execution, delivery and performance of
this agreement;
(d) the date of this agreement and the Completion Date, that, the agreement
constitutes a legally valid and binding obligation of the Buyer
enforceable in accordance with its terms;
(e) the date of this agreement and the Completion Date that, it will on
12 December 1995 and at Completion have sufficient funds available to it
to pay the Estimated Purchase Price and otherwise satisfy its
obligations on Completion;
(f) the date of this agreement and the Completion Date that, the execution,
delivery and performance of this agreement (and, subject to the
resolutions relating to the Financial Assistance being passed and no
successful application being made under section 205(12) of the
Corporations Law, the giving of the Financial Assistance) will not
violate any provision of:
(1) any law, regulation, order, rule or decree of any Governmental
Agency of the Commonwealth of Australia or any state or territory
or any recognised stock exchange on which its shares or the shares
of any related body corporate are listed;
(2) the memorandum or articles of association (or equivalent
constituent documentation) of the Buyer or the Asset Buyer; and
(3) any security agreement, deed, contract, undertaking or other
instrument to which the Buyer or the Asset Buyer is a party or
which is binding on it and does not and will not result in the
creation or imposition of any security over any of its assets
pursuant to the provision of any such security agreement, deed,
contract, undertaking or other instrument;
(g) as at the Completion Date that:
(1) neither it nor any of its Associates will hold a Prohibited
Interest; and
(2) it is not aware of any fact, matter or circumstance (including
without limitation any pending or contemplated Relevant Agreement
to which it or any of its Associates is or may be a party) which
might, after the Completion Date, result in the Company acquiring
a Prohibited Interest; or the Buyer or any Associate of the Buyer
holding a Prohibited Interest; and
(h) as at the date of this agreement it has (and on the Completion Date it
will have) disclosed to the State complete and accurate details of all
Relevant Agreements to which it or any of its Associates is or may be a
party under which a Prohibited Interest has or may be acquired.
18
8.2 CERTIFICATION
Subject to clause 8.1(h), the Buyer must before Completion apply to the
Treasurer for a certificate from him, setting out whether or not, based on the
information disclosed to him, the Buyer and any Associate of the Buyer holds a
Prohibited Interest.
8.3 CONTINUED HOLDING
Except with the prior written consent of the Treasurer, for the period from
the date of this agreement to the Completion Date and for the period of 2
years commencing on the Completion Date, the Buyer must not, and must cause
the Company not to:
(a) create, grant or issue any Equity Securities in the Company to any
person (except to the shareholders of the Company listed in schedule 4
where the relative percentage beneficial ownership of shares in the
Company (as set out in schedule 4) are maintained);
(b) dispose of the Shares or any Equity Securities in the Company to any
person; or
(c) transfer, sell or otherwise dispose of any right, title or interest in
the whole or any substantial part of the distribution or retail business
of the Company, provided that this shall not prohibit the Buyer creating
any security in relation to any bona fide loan or debt,
provided that nothing in this clause 8.3 shall prohibit an Approved Sell Down
Transaction.
8.4 BUYER'S UNDERTAKINGS
The Buyer undertakes to the State that it will, on and from the Completion
Date:
(a) ensure that the Company pays, in a timely manner, all superannuation
contributions imposed on the Company by the trustee (acting on the
advice of the actuary) of the Company's Fund; and
(b) promptly notify the State in writing of any variations to the
agreements, arrangements and understandings set out in annexure B.
19
8.5 BUYER'S INDEMNITIES
Without prejudice to clause 10, the Buyer indemnifies the Seller and the State
against any liability or loss suffered or incurred by one or both of them
which arises from (and any costs, charges or expenses incurred by one or both
of them in connection with):
(a) any material breach of, or material default under, this agreement by the
Buyer;
(b) any act or decision of the directors of the Company as contemplated by
this agreement or failure to comply with section 205(10) of the
Corporations Law; and
(c) any failure by the Company to discharge (as and when they fall due) all
debts incurred by the Company on or before the Completion Date for which
either of them may be or become liable under section 186 of the
Corporations Law.
8.6 CROSS OWNERSHIP REGULATIONS
The State acknowledges that it is its present intention to ensure, by
legislating or passing regulations, that the cross ownership provisions of the
Electricity Act are modified to achieve the effect of the draft regulations
set out in schedule 5 (including their extension to apply to trusts).
9. EMPLOYEE EQUITY
The Buyer undertakes to the State that if, at any time, the Company, the Buyer
or the Asset Buyer (or any other company/trust which is controlled by the
Buyer or the Asset Buyer which owns or conducts the Business or any
substantial part of the assets used to conduct any part of the Business) is
listed on the Australian Stock Exchange Limited, it will ensure that as part
of that listing, employees of the Business will be given an opportunity to
invest in the relevant company or trust.
10. SELLER'S WARRANTIES
10.1 GIVING OF WARRANTIES
The Seller gives the Seller's Warranties in favour of the Buyer as at the date
of this agreement.
10.2 RELIANCE
The Buyer has entered into this agreement in reliance on the Seller's
Warranties and other terms of this agreement and nothing else.
10.3 ACKNOWLEDGMENT
The Buyer acknowledges and agrees that:
(a) on the basis that the Disclosures have, to the knowledge and belief of
the State, been made in good faith and that the State has no knowledge
that the information therein is misleading or deceptive (but
acknowledging that the State is under no obligation to make any
enquiries to verify that state of knowledge) any statement,
representation, term, warranty, condition, promise or undertaking made,
given or agreed to by the Seller, the State, a representative of the
Company or an Adviser in any prior negotiation, arrangement,
understanding or agreement, has no effect except to the extent expressly
set out or incorporated by reference in this agreement;
(b) it has entered into this agreement after satisfactory inspection and
investigation, and with a knowledge of the affairs of the Company by a
review of the Disclosures and other information available to it,
including in meetings with management of the Company arranged by the
Advisers, and including in connection with the Buyer's due diligence
investigations on any other electricity distribution companies sold or
to be sold by the Seller;
(c) the energy levy payable by the Company under the pool rules as modified
by any Energy Levy Order is an integral part of the regulatory framework
under which the Company carries on the Business, and accepts that the
Company must, to carry on that Business, pay the energy levy.
Accordingly, the Buyer will not, and will ensure that the Company does
not, challenge the appropriateness, amount or basis of such levies at
the rates set by, or pursuant to, any law as at the date of this
agreement;
(d) no representation or warranty is made by the Seller or the State (nor
has the Seller or the State any liability whatsoever to the Buyer) in
relation to:
(1) the principles to be applied by the Office of the Regulator-
General or its successor(s) or other Governmental Agencies with
respect to the regulation of the Victorian electricity industry
and in particular matters affecting prices and charges;
(2) the regulation of the Victorian electricity industry (including
any act or omission by the Office of the Regulator-General,
Victorian Power Exchange, the Pool Consultative Committee or Chief
Electrical Inspector) and other industries in Victoria (and the
relationship of such other industry regulation to the regulation
of the Victorian electricity industry);
(3) the status of relations between the Company and its employees,
including in respect of any enterprise bargaining agreement or
draft thereof, contained within the Data Room Documentation;
(4) the future cost of wholesale electricity to, and its impact on,
the Company, including as to the existence and terms of vesting
contracts entered into by the Company on or about 31 March 1995
and contained in the Data Room Documentation;
(5) the value of the Shares or the value ascribed by the Electricity
Act and Allocation Statement to each asset acquired by the Company
(in particular the Plant and Equipment and Intellectual Property),
for the purposes of depreciation, capital gains or otherwise; or
(6) the giving of the Financial Assistance by the Company;
(e) it has made its own enquiries about the structure and ambit of the
development of a "national" electricity market involving some or all of
the eastern States of Australia and the ACT and the impact such a market
and market rules would (or would be likely to) have on the profitability
or otherwise of the Business or any part thereof; and
(f) no "land" for the purposes of section 32 of the Sale of Land Xxx 0000 is
being sold under the Asset Sale Agreement.
In this clause 10.3, a reference to the knowledge and belief or opinion of the
State or the Seller shall be limited to and constituted by the knowledge and
belief or opinion obtained or formed by the State or the Seller (as the case
may be) after due enquiry of Xxxxx Xxxxxxxxx and Xxxxx Xxxxxxx.
20
10.4 REMEDIES
The sole remedy of the Buyer for breach of any Seller Warranty is to damages
in accordance with this clause 10, and in no event is the Buyer to be entitled
to rescind this agreement.
21
10.5 ABILITY TO CLAIM
The Buyer is precluded from bringing a claim for breach of any Seller
Warranty, to the extent:
(a) that the claim is based on any fact, matter or circumstance:
(1) set out in the Disclosures;
(2) (i) peculiar to the electricity industry; and
(ii) within the actual knowledge of the Guarantor or which ought
to have been known by the Guarantor or the Buyer, having
regard to its knowledge (and the knowledge of its advisers)
of the electricity industry and having regard to its
opportunities to make enquiries of the State and the
Company; or
(3) which, before the date of this agreement, had been communicated in
writing to the Buyer or the Guarantor;
(b) that the claim is attributable to action taken (or not taken as the case
may be) by the Seller or the Company on or after the date of this
agreement (including, without limitation, all actions taken by the
Company on Completion as contemplated by this agreement), after
consultation with, and receipt of no objection within a reasonable
period from, the Buyer;
(c) of the provision made in the Draft Balance Sheet for the fact, matter or
circumstance on which the claim is based;
(d) to which the claim is recoverable (or would have been recoverable under
insurance if notified to the Seller or the insurers in a timely manner
after the date of this agreement);
(e) that (except in the case of a claim relating to sales tax) the claim is
based on any risk (actual or potential), fact, matter or circumstance
peculiar to the electricity industry which was generally known in
relation to the Victorian electricity industry before the Completion
Date;
(f) of any change after the Completion Date in any applicable federal law
which has retrospective effect;
(g) that either the Buyer or the Company has failed to comply with the
procedures set out in clause 11, so that the Seller is effectively
unable to assume or conduct (or is materially prejudiced in so assuming
or conducting) any defence or other action contemplated by that clause;
(h) (in the case of a claim relating to sales tax paid or payable by the
Company in respect of the period before Completion) to which the Buyer
or the Company is entitled to compensation from the Commonwealth of
Australia or the State of Victoria; or
(i) that the claim is based on any forecasts, projections or representations
as to the future revenue or profits in respect of the Company or the
Business given by or on behalf of the Seller, the State, representatives
of the Company or the Advisers.
22
10.6 LIMITATION ON CLAIMS
The Buyer's right to claim under the Seller's Warranties is limited as
follows:
(a) the Buyer must give written notice to the State of the general nature of
the claim as soon as is reasonable after it becomes aware of the facts,
matters or circumstances on which the claim is based (and where the
claim is recoverable under insurance the time limits imposed by the
relevant insurer shall be taken into account in determining what is
reasonable) and in any event within twelve months after the Completion
Date;
(b) in the case of a single claim, where the amount claimed exceeds $1
million provided that no claim may be brought by the Buyer unless and
until the aggregate of all such claims exceeds $3 million (and then only
to the extent of the excess); and
(c) the maximum aggregate amount which the Buyer may recover from the Seller
in respect of all claims is $40 million.
10.7 QUANTIFICATION OF CLAIMS
The quantum of any liability the Seller has to the Buyer under the Seller's
Warranties and otherwise under this agreement shall be determined solely by
reference to the direct financial impact on the Company which results from the
facts, matters or circumstances on which the claim is based, not being as
Warranted.
10.8 ESTIMATED STATE EQUIVALENT TAX
The State Equivalent Tax imposed on the Company with respect to the period
commencing on and from 1 July 1995 and ending on 28 February 1996 is estimated
to be as follows:
(a) in respect of profit (before State Equivalent Tax) on sale of the Plant
and Equipment and Intellectual Property by the Company: $136,684,000;
(b) in respect of operating profit (before State Equivalent Tax) earnt by
the Company in the months of:
. 1 July - 30 November 1995 $Nil
. December 1995 $Nil
. January 1996 $Nil
. February 1996 $Nil,
(in aggregate the "Estimated State Equivalent Tax"). The Buyer shall procure
the Company does not challenge the basis of the amounts specified above.
The Buyer shall procure that the Company lodges a return in respect of the
State Equivalent Tax payable by the Company for the above periods within 60
days after the Completion Date. The Company must prepare the return
consistently with past practice and, in particular, consistent with binding
tax rulings and instructions of the Treasurer. Any necessary adjustment of the
actual State Equivalent Tax payable by the Company shall be made as part of
the Purchase Price calculation.
11. CLAIMS PROCEDURE
11.1 CLAIMS PROCEDURE
On receipt of a notice under clause 10.6(a) which involves a Third Party
Claim, the State shall assume the defence of the claim unless the claim is
covered by insurance, in which event the defence will be conducted by the
insurer's lawyers. The Buyer shall have the right, at its own cost, to employ
separate lawyers or other advisers in any such action or claim and, subject to
the consent of the relevant insurance company, to participate in the defence.
The Buyer agrees that:
(a) it shall not, and shall ensure the Company does not, pay or settle any
claim in respect of which an indemnity may be claimed under this clause
11 or make any admission in respect of any claim in respect of which an
indemnity may be claimed under this clause 11 without the prior written
consent of the State;
(b) it shall procure that the Company executes such forms and documents and
also makes such personnel and documents available to the State as the
State may reasonably require to enable the State to assume, defend or
take such other action in respect of any such Third Party Claim
(including without limitation the lodgment of an objection to the
assessment or decision by the Commissioner of Taxation relating to Tax
within the time required by the relevant applicable law); and
(c) it must promptly notify the State of receipt by it or the Company of any
advice, correspondence or other communication with the third party (or
its advisers) which relates to the Third Party Claim.
In this clause "THIRD PARTY CLAIM" means any liability of the Company to a
third party which arises out of or results from claims asserted against the
Company by a third party, and in respect of which the Seller or the State may
be liable to the Buyer under this agreement.
23
12. ACTION PENDING COMPLETION
12.1 CARRYING ON OF BUSINESS
(a) Before Completion the Seller and the State will ensure that, except as
expressly contemplated by this agreement, the Company carries on the
Business (including payment of its debts as and when they fall due) in
the ordinary and normal course so as to preserve the value of the
assets, financial and trading position of the Business.
(b) The Seller and the State must also ensure that before Completion unless
the Buyer consents (or fails to object) in accordance with clause 12.2
or as otherwise contemplated by this agreement:
(1) the Company does not enter into any contractual commitment
requiring the Company to pay more than $100,000 (or commitments
with a particular person where the aggregate value of those
commitments is more than $100,000) or a commitment for a period
more than 5 years from the Completion Date, except as otherwise
disclosed in the Disclosures, commitments to Victorian Power
Exchange made in the ordinary course of business and the Company's
program of bushfire mitigation;
(2) the Company does not issue any shares, options or securities which
are convertible into shares in the Company;
(3) the Company does not dispose of, or agree to dispose of or grant
an option to purchase, any material asset of the Company or the
Business, or any interest in such asset except pursuant to the
Asset Sale Agreement;
(4) the Company does not engage any new employee with an annual
remuneration package in excess of $100,000, (and, except in the
ordinary course of business) terminate any of the Employees,
change the terms of employment (including remuneration) of any of
the Employees, or pay or provide any bonus to any Employee;
(5) the Company manages the working capital requirements and any
liabilities of the Company in the ordinary course of business
(with both the Seller and the Buyer having the right to have their
respective representatives observe management in carrying out such
activities);
(6) the Company obtains the authorisation of the Buyer to any
expenditure or payment in excess of $100,000;
(7) the Company does not incur any indebtedness, except under the TCV
Loan or with TCV in the ordinary course of business;
(8) the Company does not declare or pay any dividend or make any
distribution of profits or capital;
(9) the Company does not mortgage, pledge or encumber any of its
assets, except as a result of operation of law;
(10) the Company does not, except in the ordinary course of business,
dispose of, or agree to dispose of any assets; and
(11) the Company does not acquire any assets outside the ordinary
course of business or acquire any Equity Securities.
24
12.2 BUYER'S REPRESENTATIVE
(a) The Buyer must nominate a person ("Buyer's Representative") who has
authority to act on behalf of the Buyer in relation to any queries,
consents or approvals required under this agreement. The Buyer's
Representative shall be Xxxxx Xxxxx.
(b) If the Buyer's Representative does not consent or object to the entry
into of a particular contract or conduct of the type described in clause
12.1(b) within 5 Business Days of being notified of the Company's
intention to enter into that contract or implement that conduct, the
Buyer shall be deemed to have consented to the entry into of that
contract or implementation of that course of conduct.
12.3 ACCESS
Before the Completion Date the Seller and the State must use reasonable
endeavours to:
(a) ensure that the Buyer, and any person authorised by the Buyer, is given
all reasonable access during normal business hours to the assets,
properties, books of account, records and documents of the Company;
(b) provide the Buyer with copies of all documents listed in the Data Room
Index dated 8 November 1995, excluding copies of documents already
provided as listed in schedule 2;
(c) promptly provide the Buyer with all explanations and information it
requests in respect of the Company or the Business;
(d) ensure that the Buyer, and any person authorised by the Buyer is given
reasonable access to senior management of the Company; and
(e) provide an office for personnel of Buyer at the Company's headquarters.
25
13. ANNOUNCEMENTS
13.1 LEGAL REQUIREMENTS
The Buyer may not (and must procure that the Asset Buyer does not) disclose
anything in respect of this agreement or the terms of sale of the Shares or
Plant and Equipment and Intellectual Property except as required:
(a) by applicable law; or
(b) by the requirements of any recognised stock exchange on which its shares
or the shares of any related body corporate are listed,
but must consult with the State before making the disclosure; and the Buyer
must
(c) use reasonable endeavours to accommodate reasonable requests by the
State as to the form and content of the disclosure;
(d) claim and apply for, to the maximum extent possible, any exemptions or
rights of confidentiality that may be afforded the Buyer or the Asset
Buyer under such laws or requirements; and
(e) co-operate with the State's lawyers and, if reasonably required by the
State or its lawyers, follow the directions of the State's lawyers in
making any such claims or applications and in making submissions and
approaches to relevant authorities in respect of the claims or
applications referred to in (d).
13.2 DISCLOSURE TO OFFICERS AND PROFESSIONAL ADVISERS
A party may disclose anything in respect of this agreement or the terms of the
sale of the Shares or Plant and Equipment and Intellectual Property to such of
the officers and professional advisers of that party and its related bodies
corporate as need to know that thing for the ordinary business purposes of the
Company, the Buyer or the Asset Buyer but it must use its best endeavours to
ensure all matters disclosed are kept confidential.
13.3 FURTHER PUBLICITY
Subject to clauses 13.1 and 13.2 the Buyer must not (and must procure that the
Asset Buyer does not) disclose the provisions of this agreement, the Asset
Sale Agreement or Asset Purchase Agreement, the terms on which the Shares are
sold or the terms on which the Plant and Equipment and Intellectual Property
are sold and repurchased unless the State has first consented in writing.
13.4 COMPANY'S COMPLIANCE WITH ELECTRICITY ACT
The Buyer, the Seller and the State each acknowledge that the Company is,
while it is a public distribution company under the Electricity Act, under
obligations to provide information to the Minister or the Treasurer under
sections 35 and 36 of that Act.
14. JOINT COVENANTS, DUTIES, COSTS AND EXPENSES
14.1 GOVERNMENT NOTIFICATION, ETC
Promptly following the execution of this agreement, the parties will proceed
to prepare and file with the appropriate governmental authorities any notices,
requests for approval or waiver, if any, that are required from governmental
authorities in connection with transactions contemplated hereby, and the
parties shall diligently and expeditiously prosecute and co-operate fully in
the prosecution of such requests for approval or waiver and all proceedings
necessary to secure such approvals and waivers.
26
14.2 BEST EFFORTS; NO INCONSISTENT ACTION
Each party will use its best efforts to effect the transaction contemplated by
this agreement and to fulfil the conditions to the obligations of the parties
set forth in this agreement. No party will take any action inconsistent with
its obligations under this agreement or that could hinder or delay the
consummation of the transactions contemplated by this agreement.
14.3 DUTY
The Buyer must pay:
(a) any Duty in respect of the execution, delivery and performance of this
agreement and any document entered into or signed under this agreement;
and
(b) any fine, penalty or other cost in respect of a failure to pay any Duty.
14.4 COSTS AND EXPENSES
Subject to clause 14.3, each party must pay its own costs and expenses in
respect of the negotiation, preparation, execution, delivery, stamping and
registration of this agreement or other document described in clause 14.3(a).
14.5 COSTS OF PERFORMANCE
Any action to be taken by a party in performing its obligations under this
agreement must be taken at its own cost and expense unless otherwise provided
in this agreement.
15. GUARANTOR'S GUARANTEE AND INDEMNITY
15.1 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to the Seller and the
State the due and punctual performance of the Buyer's obligations under this
agreement (including any indemnities given in favour of the Seller or the
State).
15.2 INDEMNITY
As a separate and independent principal obligation, the Guarantor indemnifies
the Seller and the State against all liabilities, losses, damages, costs or
expenses incurred or suffered by the Seller or the State and all actions,
proceedings, claims or demands made against the Seller or the State as a
result of default by the Buyer in the performance of any such obligation or
from any such express or implied obligations being unenforceable.
15.3 EXTENT OF GUARANTEE AND INDEMNITY
(a) This clause 15 applies:
(1) to the present and future obligations of the Buyer under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced.
(b) The obligations of the Guarantor under this clause 15 extend to any
change in the obligations of the Buyer as a result of:
(1) any amendment, supplement, renewal or replacement of this
agreement; or
(2) the occurrence of any other thing.
(c) This clause 15 is not affected, nor are the obligations of the Guarantor
under this agreement released or discharged or otherwise affected, by
anything which, but for this provision, might have that effect.
(d) This clause 15.3 applies:
(1) regardless of whether the Guarantor is aware of, or has consented
to, or is given notice of, any amendment, supplement, renewal or
replacement of any agreement to which the Seller, the State, the
Buyer are a party or the occurrence of any other thing; and
(2) irrespective of any rule of law or equity to the contrary.
27
15.4 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to or
affecting any obligation of the Buyer under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) is claimed to be void, voidable or unenforceable and that claim is
upheld, conceded or compromised in whole or in part,
the liability of the Guarantor under this clause 15 and any Power is the
same as if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any thing
referred to in clause 15.4(a)(3),
had not been made and the Guarantor must immediately take all action and
sign all documents necessary or required by the Seller or the State to
restore to the Seller and the State the benefit of this clause 15 and
any Security Interest held by the Seller or the State immediately before
the payment, conveyance, transfer or transaction.
(b) Clause 15.4(a) applies whether or not the Seller or the State knew, or
ought to have known of, anything referred to in that clause.
15.5 CONTINUING GUARANTEE AND INDEMNITY
This is a continuing obligation of the Guarantor, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) the obligations of the Buyer under this agreement have been performed;
and
(d) this clause 15 has been finally discharged by the Buyer.
15.6 WARRANTIES OF THE GUARANTOR
The Guarantor represents and warrants that:
(a) it has the corporate power to enter into this guarantee and indemnity
and has taken all necessary action to authorise the execution, delivery
and performance of this agreement;
(b) this guarantee and indemnity constitutes a legally valid and binding
obligation of the guarantor enforceable in accordance with its terms;
and
(c) the execution, delivery and performance of this guarantee and indemnity
will not violate any provision of:
(1) any law or regulation or any order or decree of any Governmental
Agency of the Commonwealth of Australia or any state or territory;
(2) the memorandum or articles of association of the Guarantor or
equivalent constituent documents; and
(3) any security agreement, deed, contract, undertaking or other
instrument to which the Guarantor is a party or which is binding
on it and does not and will not result in the creation or
imposition of any security over any of its assets pursuant to the
provision of any such security agreement, deed, contract,
undertaking or other instrument.
28
16. STATE'S GUARANTEE AND INDEMNITY
16.1 GUARANTEE
The State, pursuant to section 85B of the State Electricity Commission Xxx
0000, unconditionally and irrevocably guarantees to the Buyer the due and
punctual performance of the Seller's obligations under this agreement
(including any indemnities given in favour of the Buyer).
16.2 INDEMNITY
As a separate and independent principal obligation, the State indemnifies the
Buyer against all liabilities, losses, damages, costs or expenses incurred or
suffered by the Buyer and all actions, proceedings, claims or demands made
against the Buyer as a result of default by the Seller in the performance of
any such obligation or from any such express or implied obligations being
unenforceable.
16.3 EXTENT OF GUARANTEE AND INDEMNITY
(a) This clause 16 applies:
(1) to the present and future obligations of the Seller under this
agreement; and
(2) to this agreement, as amended, supplemented, renewed or replaced.
(b) The obligations of the State under this clause 16 extend to any change
in the obligations of the Seller as a result of:
(1) any amendment, supplement, renewal or replacement of this
agreement; or
(2) the occurrence of any other thing.
(c) This clause 16 is not affected, nor are the obligations of the State
under this agreement released or discharged or otherwise affected, by
anything which, but for this provision, might have that effect.
(d) This clause 16.3 applies:
(1) regardless of whether the State is aware of, or has consented to,
or is given notice of, any amendment, supplement, renewal or
replacement of any agreement to which the Buyer and the Seller are
a party or the occurrence of any other thing; and
(2) irrespective of any rule of law or equity to the contrary.
(e) The indemnity in clause 16.2 does not apply to the giving of the
Financial Assistance nor the resolutions to be passed by the Seller and
the directors of the Company as contemplated by this agreement.
29
16.4 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction relating to or
affecting any obligation of the Seller under this agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) is claimed to be void, voidable or unenforceable and that claim is
upheld, conceded or compromised in whole or in part,
the liability of the State under this clause 16 and any Power is the
same as if:
(3) that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any thing
referred to in clause 16.4(a)(3),
had not been made and the State must immediately take all action and
sign all documents necessary or required by the Buyer to restore to the
Buyer the benefit of this clause 16 and any Security Interest held by
the Buyer immediately before the payment, conveyance, transfer or
transaction.
(b) Clause 16.4(a) applies whether or not the Seller knew, or ought to have
known of, anything referred to in that clause.
16.5 CONTINUING GUARANTEE AND INDEMNITY
This is a continuing obligation of the State, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) the obligations of the Seller under this agreement have been performed;
and
(d) this clause 16 has been finally discharged by the Buyer.
16.6 WARRANTIES OF THE STATE
The State represents and warrants that this guarantee and indemnity
constitutes a legally valid and binding obligation of the guarantor
enforceable in accordance with its terms.
17. NOTICES
17.1 GENERAL
Any notice or other communication including, but not limited to, any request,
demand, consent or approval, to or by a party to this agreement:
(a) must be in legible writing and in English addressed as shown:
(1) if to the Seller: The Administrator,
Address: State Electricity Commission of Victoria,
Xxxxx 0, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx 0000
Attention: Mr G Brooke
Facsimile: (00) 0000 0000;
(2) if to the State: The Treasurer
Address: Office of the Treasurer
Xxxxx 0, 0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxxxx 0000
Attention: Xx Xxxx Xxxxxx
Facsimile: (00) 0000 0000;
(3) if to the Buyer: Pacificorp Australia Holdings Pty Limited
C/- Xxxxxxxx Fox
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx 0000
Attention: Xxxxx Xxxxx/Xxxxxx Xxxxx
Facsimile: (00) 0000 0000; and
(4) if to the Guarantor: Pacificorp Holdings, Inc.
Address: 000 XX Xxxxxxxxx
0000 XXX
Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx of America
Attention: Xxxxxx X Xxxxxxxx/Xxxxx Xxxxxxxx
Facsimile: (000) 000 0000
or as specified to the sender by any party by notice;
(b) where the sender is a company, must be signed by an Officer or under the
common seal of the sender;
(c) is regarded as being given by the sender and received by the addressee:
(1) if by delivery in person, when delivered to the addressee; or
(2) if by facsimile transmission, when transmitted legibly to the
addressee,
but if the delivery or receipt is on a day which is not a Business Day
or is after 4.00 pm (addressee's time) it is regarded as received at
9.00 am on the following Business Day; and
(d) can be relied upon by the addressee and the addressee is not liable to
any other person for any consequences of that reliance if the addressee
believes it to be genuine, correct and authorised by the sender.
30
17.2 LEGIBILITY OF FACSIMILE TRANSMISSION
A facsimile transmission is regarded as legible unless the addressee
telephones the sender within 2 hours after the transmission is received or
regarded as received under clause 17.1(c)(2) and informs the sender that it is
not legible.
31
18. ON-GOING OBLIGATIONS
18.1 CONTINUED ACCESS
The Buyer acknowledges that the State has continuing reporting obligations
under:
(a) the uniform budget presentation standards and Australian loan council
standards, as agreed from time to time by the Premiers of various States
within Australia; and
(b) the Financial Management Xxx 0000 and the Audit Xxx 0000.
Accordingly, the Buyer must ensure that from Completion up until 31 December
1996:
(a) the State is granted full and free access at all reasonable times to
those employees of the Company whose knowledge or information is needed
by the State (together with all books, records and other data pertaining
to the Company and which are referrable to the period on and before the
Completion Date) to enable it to comply with these obligations;
(b) if, to comply with such reporting obligations, the Auditor-General or
the Treasurer requires the Company to prepare any accounts or other
financial information, the Company must either:
(1) prepare such accounts or other financial information on a basis
consistent with the accounting policies and practices applied by
the Company in the June Accounts; or
(2) prepare such accounts or other financial information on the basis
of its then current accounting policies and practices, but with a
reconciliation setting out the differences between its current
accounting policies and practices and those which applied in the
June accounts; and
(c) the Company at all times keeps the State promptly informed on all
rulings received on asset valuations for depreciation purposes.
19. GENERAL
19.1 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of Victoria. Each party
irrevocably submits to the exclusive jurisdiction of the courts of
Victoria.
(b) Each party irrevocably waives any objection to the venue of any legal
process on the basis that the process has been brought in an
inconvenient forum.
19.2 WAIVERS
(a) Waiver of any right arising from a breach of this agreement or of any
Power arising upon default under this agreement must be in writing and
executed by the party granting the waiver.
(b) A failure or delay in exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or non-
exercise of a right or Power arising from a breach of this agreement or
on a default under this agreement as constituting a waiver of that right
or Power.
(d) A party may not rely on any conduct of another party as a defence to
exercise of a right or Power by that other party.
(e) This clause 19.2 may not itself be waived except in writing executed by
the party granting the waiver.
32
19.3 VARIATION
A variation of any term of this agreement must be in writing and executed by
the parties.
19.4 FURTHER ASSURANCES
Each party must do all things, and execute all further documents, necessary to
give full effect to this agreement.
19.5 THIRD PARTY RIGHTS
No person (including, but not limited to, an Employee) other than a party to
this agreement and those persons expressly referred to in paragraphs (r) and
(s) of clause 1.2 has or is intended to have any right, power or remedy or
derives or is intended to derive any benefit under this agreement.
19.6 THIS AGREEMENT SUPERSEDES OTHERS
This agreement and the Asset Sale Agreement embody the entire agreement
between the parties with respect to the subject matter of this agreement and
supersede any prior negotiation, arrangement, understanding or agreement with
respect to the subject matter or any term of this agreement.
EXECUTED by the parties as an agreement.
SCHEDULE 1
SELLER'S WARRANTIES
SCHEDULE 1
SELLER'S WARRANTIES
1. TITLE
The Seller will at Completion be the beneficial owner of the Shares (which are
free of all Security Interests and other third party interests or rights) with
the legal ownership of the Shares held as follows:
the Seller: one ordinary share;
Xx Xxxxxx Xxxxxxx: one ordinary share;
Xx Xxxx Xxxxxxx: one ordinary share;
Xx Xxxxx Xxxxxxxx: one ordinary share; and
Xx Xxxx XxXxxxx: one ordinary share.
2. CONSENTS
On Completion the Seller and Nominees will be able to sell and transfer the
Shares without the consent of any other person and free of any pre-emptive
rights or rights of first refusal.
3. ISSUED CAPITAL
On Completion the Shares are all the issued Equity Securities in the capital
of the Company.
4. AUTHORISED CAPITAL
The authorised capital of the Company at the date of this agreement is
$500,000,000 divided into 500,000,000 ordinary shares of $1.00 each.
5. FULLY PAID
On Completion the Shares will be fully paid and no money will be owing in
respect of them.
6. ISSUE OF OTHER SECURITIES
The Company is not under any obligation to issue or allot, and has not granted
any person the right to call for the issue or allotment of, any shares or
other securities of the Company at any time.
7. NO LEGAL IMPEDIMENT
Except for those matters relating to the giving of the Financial Assistance by
the Company, the execution, delivery and performance by the Seller and the
State of this agreement complies with:
(a) each law, regulation, Authorisation, ruling, judgment, order or decree
of any Governmental Agency; and
(b) any Security Interest or document which is binding on the Seller.
2
8. AUTHORISATIONS
The Treasurer has the power to execute this agreement on behalf of the State,
and, except for those matters relating to the giving of the Financial
Assistance by the Company, the Seller has taken all necessary action to
authorise the execution, delivery and performance of this agreement in
accordance with its terms.
SCHEDULE 2
DISCLOSURES
1. All information which is available on public record.
2. All information set out in the Information Memorandum dated August 1995.
3. All information set out in the documents listed in the table set out on
the next two pages.
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 7
2. SALE AND PURCHASE 8
2.1 Sale of shares 8
2.2 Treasurer's Approval 8
2.3 Method of Payment 8
2.4 Profit Entitlement 9
2.5 Dividend Payment 9
2.6 Section 205 9
3. DEPOSIT 9
3.1 Payment 9
3.2 Non-refund 9
3.3 Notice of termination for breach 10
3.4 Automatic termination 10
3.5 Remedies 10
4. PURCHASE PRICE AND PAYMENTS 10
4.1 Amount 10
4.2 Payments 11
4.3 Interest 11
5. COMPLETION 12
5.1 Date for Completion 12
5.2 Completion Date Actions 12
5.3 Delivery of documents 12
5.4 First meeting 13
5.5 Second meeting 13
5.6 Buyer's obligations at Completion 13
5.7 Termination by lapse of time 14
5.8 Remedies 15
5.9 Repayment of Loans 15
5.10 Definitions 16
6. INTERDEPENDENCY 16
6.1 Interdependency between agreements 16
7. AUDITOR-GENERAL REVIEW 16
7.1 Audit by Auditor-General 16
7.2 Access to books 17
8. BUYER'S OBLIGATIONS 17
8.1 Buyer's Warranties 17
8.2 Certification 18
8.3 Continued Holding 18
8.4 Buyer's Undertakings 18
8.5 Buyer's Indemnities 19
8.6 Cross Ownership Regulations 19
9. EMPLOYEE EQUITY 19
10. SELLER'S WARRANTIES 19
10.1 Giving of Warranties 19
10.2 Reliance 19
10.3 Acknowledgment 19
10.4 Remedies 20
10.5 Ability to claim 21
10.6 Limitation on claims 22
10.7 Quantification of Claims 22
10.8 Estimated State Equivalent Tax 22
11. CLAIMS PROCEDURE 22
11.1 Claims procedure 22
12. ACTION PENDING COMPLETION 23
12.1 Carrying on of business 23
12.2 Buyer's Representative 24
12.3 Access 24
13. ANNOUNCEMENTS 25
13.1 Legal requirements 25
13.2 Disclosure to officers and professional advisers 25
13.3 Further publicity 25
13.4 Company's compliance with Electricity Act 25
14. JOINT COVENANTS, DUTIES, COSTS AND EXPENSES 25
14.1 Government Notification, etc 25
14.2 Best Efforts; No Inconsistent Action 26
14.4 Costs and expenses 26
14.5 Costs of performance 26
15. GUARANTOR'S GUARANTEE AND INDEMNITY 26
15.1 Guarantee 26
15.2 Indemnity 26
15.3 Extent of guarantee and indemnity 26
15.4 Avoidance of payments 27
15.5 Continuing guarantee and indemnity 27
15.6 Warranties of the Xxxxxxxxx 00
00. STATE'S GUARANTEE AND INDEMNITY 28
16.1 Guarantee 28
16.2 Indemnity 28
16.3 Extent of guarantee and indemnity 28
16.4 Avoidance of payments 29
16.5 Continuing guarantee and indemnity 29
16.6 Warranties of the State 29
17. NOTICES 29
17.1 General 29
17.2 Legibility of facsimile transmission 30
18. ON-GOING OBLIGATIONS 31
18.1 Continued Access 31
19. GENERAL 31
19.1 Governing law and jurisdiction 31
19.2 Waivers 31
19.3 Variation 32
19.4 Further assurances 32
19.5 Third party rights 32
19.6 This agreement supersedes others 32
SCHEDULES
Schedule 1 Seller's Warranties
Schedule 2 Disclosures
Schedule 3 Zone Sub-Station Properties
Schedule 4 Buyer's Shareholding
Schedule 5 Cross Ownership Regulations
ANNEXURES
Annexure A June Accounts
Annexure B Agreements etc between Group Members/Shareholders in the Buyer
Annexure C Draft Balance Sheet (as at 30 September 1995)
Annexure D Sales Tax Agreement
SCHEDULE 2
DISCLOSURES
SCHEDULE 3
ZONE SUB-STATION PROPERTIES
NOT APPLICABLE
SCHEDULE 4
BUYER'S SHAREHOLDING
SEE STRUCTURE CHART ATTACHED
SCHEDULE 5
CROSS OWNERSHIP REGULATIONS
THE COMMON SEAL of STATE )
ELECTRICITY COMMISSION OF )
VICTORIA was affixed to this )
document in accordance with the State )
Electricity Commission Act )
in the presence of: )
..............................
......................................... Witness
Administrator
..............................
Name (please print)
.........................................
Name (please print)
SIGNED by THE HONOURABLE )
XXXX XXXXXX XXXXXXXXX for )
and on behalf of the Crown in right of )
the State of Victoria in the presence of: )
)
......................................... )
Signature of witness )
)
......................................... )
Name of witness (block letters) )
)
......................................... ) ..............................
Address of witness ) Signature of
) Xxxx Xxxxxx Xxxxxxxxx
......................................... )
Occupation of witness )
)
THE COMMON SEAL of )
PACIFICORP AUSTRALIA )
HOLDINGS PTY LTD (ACN 068 231 )
005) is affixed in accordance with its )
articles of association in the presence )
of: )
......................................... ..............................
Signature of authorised person Signature of authorised person
......................................... ..............................
Office held Office held
......................................... ..............................
Name of authorised person (block letters) Name of authorised person
(block letters)
SIGNED by Xxxxxx X Xxxxxxxx as )
authorised representative for )
PACIFICORP HOLDINGS, INC. in )
the presence of: )
......................................... ..............................
Signature of witness Xxxxxx X. Xxxxxxxx
.........................................
Occupation
.........................................
Name of witness (block letters)
ANNEXURE A
JUNE ACCOUNTS
ANNEXURE B
AGREEMENTS ETC BETWEEN GROUP
MEMBERS/SHAREHOLDERS IN THE BUYER
NOT APPLICABLE
ANNEXURE C
DRAFT BALANCE SHEET (AS AT 30 SEPTEMBER 1995)
ANNEXURE D
SALES TAX AGREEMENT
