EXHIBIT 2.3
PACIFICORP AUSTRALIA HOLDINGS PTY LTD
ACN 068 231 005
and
POWERCOR AUSTRALIA LIMITED
ACN 064 651 109
____________________________________________________________________________
Asset Purchase Agreement
____________________________________________________________________________
PHILLIPS FOX
50th Floor
120 Collins Street
Melbourne VIC 3000
Ref: JAE:PACI9000-006
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THIS ASSET PURCHASE AGREEMENT is made on 12 December 1995 between the
following parties:
1. PACIFICORP AUSTRALIA HOLDINGS PTY LTD ACN 068 231 005 of 50th Floor, 120
Collins Street, Melbourne in the State of Victoria ("Seller"); and
2. POWERCOR AUSTRALIA LIMITED ACN 064 651 109 of Level 3, 77 Southbank
Boulevard Southbank in the State of Victoria ("Asset Buyer")
RECITALS:
A. The Seller is the owner of the Assets.
B. The Seller agrees to sell and the Asset Buyer agrees to buy the Assets
on the terms and conditions set out in this agreement.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement:
"APPROVAL DATE" means the date on which the Asset Buyer 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 days 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(1) the application or each application has been withdrawn; or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.
"ASSETS" means the Plant and Equipment and Intellectual Property.
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"AUTHORISATION" includes:
(a) any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or exemption
from, by or with a Governmental Agency; and
(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 Government Agency.
"BUSINESS DAY" means a day on which banks are open for business in
Melbourne, excluding a Saturday or a Sunday or a public holiday.
"ASSET BUYER'S WARRANTIES" means the warranties and representations of
the Asset Buyer set out in clause 4.1.
"COMPLETION DATE" is the day on which Completion occurs under the Share
Sale Agreement.
"DOLLARS "A"" and "$"" means the lawful currency of the Commonwealth of
Australia.
"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 Act 1993.
"FINANCIAL ASSISTANCE" means the financial assistance which the Asset
Buyer may give for the purpose of, or in connection with, the
acquisition of shares by the Seller under the Share Sale Agreement.
"GOVERNMENTAL AGENCY" means the government of any country or the
government of 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.
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"INTELLECTUAL PROPERTY" means rights to all patents, copyrights and
designs used in the business of the Seller, 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.
"OFFICER" means a director or secretary of the relevant party or Seller
(as the case may be).
"PLANT AND EQUIPMENT" means all:
(a) plant, equipment and articles owned by the Seller; 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 Seller (but not the land itself), including
without limitation all electricity transmission and distribution
lines, power poles, underground cables, stations, substations,
switchyard 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 Seller 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.
"PURCHASE PRICE" means A$1,650,000,000.00.
"SECURITY INTEREST" means an interest or power:
(a) reserved in or over an interest in any asset excluding any
retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a bill of sale, mortgage, charge, lien, pledge, trust or
power, by way of security for the payment of a debt or any other
monetary obligation for the performance of any other obligation
and includes, but is not limited to, any agreement to grant or
create any of the above.
"SHARE SALE AGREEMENT" means the agreement dated 16 December 1995,
between State Electricity Commission of Victoria, the State of Victoria,
the Seller and PacifiCorp Holdings Inc. under which the Seller shall
acquire, inter alia, all the issued ordinary shares in the capital of
the Asset Buyer.
"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 any Duty.
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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 or any Governmental Agency;
(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 such 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 anything is to be done is not a
Business Day, that thing must be done 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 defined in the Corporations Law at the date of this
agreement have the meanings given to them in the Corporations Law
at that date; and
(r) terms defined in the Share Sale agreement shall have the meanings
given to them in the Share Sale Agreement in this agreement unless
the context otherwise requires.
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2. SALE OF PURCHASE
2.1 SALE OF ASSETS
Subject to the terms of this agreement, the Seller must sell free of
Security Interests and the Asset Buyer must buy the Assets for the
Purchase Price on the Completion Date. The parties agree that the
allocation of the Purchase Price between the Assets is as follows:
Plant and Equipment $1,610,000,000.00
Intellectual Property $40,000,000.00
_________________
Total: $1,650,000,000.00
_________________
The Purchase Price allocated to the above asset categories is then
further allocated to each individual asset rateably on the basis of the
current book value of the asset as a proportion of the total book value
of that respective class.
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2.2 DATE FOR SATISFACTION OF PURCHASE PRICE
On and subject to the terms of this agreement the Asset Buyer must
satisfy the Purchase Price on the Completion Date.
3. COMPLETION
3.1 DATE AND TIME FOR COMPLETION
Completion must take place on the Completion Date at the place nominated
for completion under the Share Sale Agreement and shall occur
immediately after completion under the Asset Sale Agreement.
3.2 PROPERTY AND RISK
Property and risk in the Assets shall pass to the Asset Buyer on the
Completion Date, subject to satisfaction of the Purchase Price.
4. ASSET BUYER'S WARRANTIES
The Asset Buyer represents and warrants to the Seller as at the date of
this agreement and the Completion Date that:
(a) it has the corporate power to enter into this agreement and has
taken all necessary action (including all shareholder approvals
and Authorisations) to authorise the execution, delivery and
performance of this agreement;
(b) this agreement constitutes a legally valid and binding obligation
of the Asset Buyer enforceable in accordance with its terms; and
(c) the execution, delivery and performance of this agreement 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 Asset Buyer; and
(3) any security agreement, deed, contract, undertaking or other
instrument to which 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.
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5. SELLER'S WARRANTIES
5.1 The Seller represents and warrants to the Asset Buyer as at the date of
this agreement and the Completion Date that:
(a) it has the corporate power to enter into this agreement and has
taken all necessary action (including all shareholder approvals
and Authorisations) to authorise the execution, delivery and
performance of this agreement;
(b) the agreement constitutes a legally valid and binding obligation
of the Seller enforceable in accordance with its terms; and
(c) the execution, delivery and performance of this agreement 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 Seller; and
(3) any security agreement, deed, contract, undertaking or other
instrument to which the Seller 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.
5.2 The sole remedy of the Asset Buyer for breach of any representation or
warranty in relation to the Assets is to damages in accordance with this
agreement and in no event is the Asset Buyer to be entitled to rescind
this agreement.
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6. DUTIES, COSTS AND EXPENSES
6.1 PAYMENT OF DUTY
The Asset 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 the
agreement; and
(b) any fine, penalty or other cost in respect of a failure to pay any
Duty.
6.2 INDEMNITY
The Asset Buyer indemnifies the Seller against any amount payable under
clause 6.1.
6.3 COSTS AND EXPENSES
Subject to clause 6.1, 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
6.1(a).
6.4 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.
7. NOTICES
7.1 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
below:
(1) if to the Seller:
Address: 50th Floor
120 Collins Street,
Melbourne Vic 3000
Attention: Mr Peter Vines/Ms J Earls
Facsimile: (03) 9274 5111
(2) if to the Asset Buyer:
Address: Level 3
77 Southbank Boulevard
Southbank Vic 3006
Attention: The Company Secretary
Facsimile: 9679 4566
or as specified to the sender by any party by notice;
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(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;
(2) if by post within Australia, 3 Business Days from and
including the date of postage; or
(3) 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 is after 4.00pm (addressee's time) it is regarded as received
at 9.00am 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;
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7.2 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 7.1(c)(3) and informs the sender
that it is not legible.
8. GENERAL
8.1 GOVERNING LAW AND JURISDICTION
(a) The 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.
8.2 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 partys granting the waiver.
(b) A failure or delay in the 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 8.2 may not itself be waived except by writing
executed by the party granting the waiver.
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8.3 VARIATION
A variation of any term of this agreement must be in writing and
executed by the parties.
8.4 FURTHER ASSURANCES
Each party must do all things, and execute all further documents,
necessary to give full effect to this agreement.
8.5 THIRD PARTY RIGHTS
No person other than a party to this agreement is intended to have any
right, power or remedy or derives or is intended to derive any benefit
under this agreement.
8.6 THIS AGREEMENT SUPERSEDES OTHERS
This agreement embodies the entire agreement between the parties with
respect to the subject matter of this agreement and supersedes 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.
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THE COMMON SEAL of )
PACIFICORP AUSTRALIA )
HOLDINGS PTY LTD ACN 068 231 )
005 was hereunto affixed in )
accordance with its Articles of )
Association in the presence of: )
..................................
Director - Daniel L. Spalding
..................................
Director - Verl R Topham
THE COMMON SEAL of )
POWERCOR AUSTRALIA LIMITED )
(ACN 064 651 109) was hereunto )
affixed in accordance with its )
Articles of Association in the )
presence of: )
..................................
Director - Daniel L. Spalding
..................................
Director - Verl R Topham
i
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions ................................................ 1
1.2 Interpretation ............................................. 4
2. SALE OF PURCHASE 5
2.1 Sale of Assets ............................................. 5
2.2 Date for Satisfaction of Purchase Price .................... 6
3. COMPLETION 6
3.1 Date and Time for Completion ............................... 6
3.2 Property and Risk .......................................... 6
4. ASSET BUYER'S WARRANTIES 6
5. SELLER'S WARRANTIES 7
6. DUTIES, COSTS AND EXPENSES 8
6.1 Payment of Duty ............................................ 8
6.2 Indemnity .................................................. 8
6.3 Costs and expenses ......................................... 8
6.4 Costs of performance ....................................... 8
7. NOTICES 8
7.1 General .................................................... 8
7.2 Legibility of facsimile transmission ....................... 10
8. GENERAL 10
8.1 Governing law and jurisdiction ............................. 10
8.2 Waivers .................................................... 10
8.3 Variation .................................................. 11
8.4 Further assurances ......................................... 11
8.5 Third Party rights ......................................... 11
8.6 This agreement supersedes others ........................... 11