EXHIBIT 2.2
CONFORMED COPY
DATED 19 NOVEMBER 2001
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TXU EUROPE GROUP PLC (1)
AND
LONDON ELECTRICITY GROUP PLC (2)
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SALE AND PURCHASE
AGREEMENT
RELATING TO
24 SEVEN UTILITY SERVICES LIMITED
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NORTON ROSE
CONTENTS
CLAUSE PAGE
1 Definitions and interpretation......................................1
2 Conditions precedent................................................3
3 Sale of the Sale Shares.............................................3
4 Consideration.......................................................3
5 Completion..........................................................3
6 Post-completion matters.............................................4
7 TXUEG's and Buyer's Warranties......................................5
8 Buyer's remedies; TXUEG protections.................................5
9 Pensions............................................................5
10 Confidentiality.....................................................5
11 Assignability.......................................................6
12 Remedies to be cumulative...........................................6
13 Costs...............................................................6
14 Further assurance...................................................6
15 Announcements.......................................................6
16 Entire agreement....................................................6
17 Miscellaneous.......................................................7
18 Notices.............................................................7
19 Choice of law and submission to jurisdiction........................8
Schedule 1 Warranties......................................................9
Schedule 2 Basic Information about 24 Seven...............................11
Schedule 3 Pensions.......................................................12
THIS AGREEMENT is dated 19 November 2001 and is made BETWEEN:
(1) TXU EUROPE GROUP PLC (No. 3247622) (a company incorporated under the laws
of England and Wales) whose registered office is at The Adelphi, 1-11 John
Adam Street, London WC2N 6HT ("TXUEG"); and
(2) LONDON ELECTRICITY GROUP PLC (No.2366852) (a company incorporated under
the laws of England) whose registered office is at Templar House, 81-87
High Holborn, London, WC1V 8NU (the "BUYER").
WHEREAS:
(A) 24 Seven Utilities Services Limited ("24 SEVEN") has an authorised share
capital of (pound)50,000,200 divided into 25,000,000 H ordinary shares of
(pound)1 each, of which 1,000,001 such shares have been issued, 25,000,000
I ordinary shares of (pound)1 each, of which 1,000,001 such shares have
been issued, 300 H preference shares of 331/3 pence each, of which 300 such
shares have been issued, and 300 I preference shares of 331/3 pence each,
of which 300 such shares have been issued.
(B) TXUEG is the registered and beneficial owner of 1,000,001 H ordinary
shares and 200 H preference shares in the capital of 24 Seven (basic
information on which is set out in schedule 2).
(C) Subject to satisfaction of the condition referred to in this Agreement,
this Agreement provides for TXUEG to sell, and the Buyer to purchase, all
the issued ordinary shares and preference shares referred to in (B) above.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"BUSINESS DAY" means a day on which banks are open for a full range of
domestic transactions in the City of London (excluding Saturdays) and
"BUSINESS DAYS" shall be construed accordingly;
"CA 1985" means the Companies Act 1985;
"COMPLETION" means completion of the transactions contemplated by clause 5
of this Agreement;
"COMPLETION DATE" means the date of Completion;
"DISCLOSURE LETTER" has the meaning set out it the EE S&P ;
"EE" means Eastern Electricity Limited (No. 2366906) (a company
incorporated under the laws of England and Wales) whose registered office
is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ;
"EE HOLDCO" means Eastern Electricity Holdings Limited (No. 4191756) (a
company incorporated under the laws of England and Wales) whose registered
office is at Wherstead Park, Wherstead, Ipswich, Suffolk IP9 2AQ;
"EE S&P" means the agreement dated the same date as this Agreement made
between EE Holdco, the Buyer and TXUEG relating to the sale by EE Holdco of
its shares in EE;
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"GROUP" means, in relation to any company, that company and any company
which is a holding company or subsidiary of that company and any subsidiary
of such holding company; and for the purposes of this Agreement
"SUBSIDIARY" and "HOLDING COMPANY" have the meanings ascribed thereto by
sections 736 and 736A Companies Act 1985;
"ICTA 1988" means the Income and Corporation Taxes Act 1988;
"JV AGREEMENT" means the Joint Venture Agreement/Shareholders Agreement
made between TXUEG and the Buyer relating to 24 Seven dated 14 December
1999 as amended and supplemented from time to time.
"PRE-CONTRACTUAL STATEMENT" means any agreement, undertaking,
representation, warranty, statement, promise, assurance or arrangement of
any nature whatsoever (whether or not in writing, whether express or
implied and whether or not in draft form) made or given by any person at
any time prior to the execution of this Agreement in connection with 24
Seven or any of the matters contemplated by the Transaction Documents (or
any of them);
"PURCHASE PRICE" means(pound)40,000,000;
"SALE SHARES" means the 1,000,001 H ordinary shares of (pound)1 each and
the 200 H preference shares of 331/3 pence each of 24 Seven to be purchased
by the Buyer under this Agreement;
"24 SEVEN" means 24 Seven Utility Services Limited, a company registered in
England under no. 3870728 whose registered office is at Harold Hill,
Spilsby Road, Romford, Essex RM3 8UB;
"THIRD PARTY LIABILITIES" means all and any guarantees or other liabilities
which TXUEG (or any member of its Group, excluding EE) owes (actually or
contingently) in respect of 24 Seven;
"TRANSACTION DOCUMENTS" has the meaning set out in the EE S&P ; and
"WARRANTIES" means the warranties set out in schedule 1.
1.2 In this Agreement:
(a) any document expressed to be "in the agreed form" means a
document in a form approved by (and for the purpose of identification
signed by or on behalf of) each of the Parties;
(b) references to clauses and the schedules are unless otherwise stated
to clauses of and the schedules to this Agreement; and
(c) subject to paragraph (d) below, references to "this Agreement",
including the schedules thereto shall be to this Agreement and
references to "the Parties" shall be to the parties to this Agreement
and "Party" shall be construed accordingly;
(d) where the context requires, references to (or to any specified
provision of) this Agreement or any other document shall be construed
as references to this Agreement, that provision or that document as in
force for the time being and as from time to time amended, novated or
supplemented in accordance with its terms, or, as the case may be,
with the agreement of the relevant parties;
(e) references to any enactment (meaning any statute or statutory
provision, whether of the United Kingdom or elsewhere, subordinate
legislation (as defined by section 2(1) Interpretation Act 1978) and
any other subordinate legislation made under any such statute or
statutory provision) shall be construed as references to:
(i) any enactment which that enactment has directly or indirectly
replaced (whether with or without notification); and
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(ii) that enactment as re-enacted, replaced or modified from time to
time, whether before, on or after the date hereof.
(f) words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons
include bodies corporate or unincorporate;
(g) the headings to the clauses and the schedules are for convenience
only and shall not affect the construction or interpretation of this
Agreement; and
(h) the Interpretation Act 1978 shall apply in the same way as it applies
to an enactment.
2 CONDITIONS PRECEDENT
2.1 Each Party agrees that this Agreement (save for this clause 2 and clauses
11 to 19 inclusive) is conditional upon satisfaction of all of the
completion obligations set out in clause 5.1 of the EE S&P (other than the
obligation to complete this Agreement).
2.2 If the condition set out in clause 2.1 above has not been satisfied by 30
June 2002 (or such later date as the Parties may agree) then the provisions
of this Agreement (with the exception of those set out in clauses 11 to 19
inclusive) shall forthwith terminate and cease to be of effect and, save as
aforesaid, no Party shall have any claim against the others.
3 SALE OF THE SALE SHARES
3.1 TXUEG shall sell, and the Buyer shall purchase, the Sale Shares with effect
from Completion.
3.2 TXUEG shall sell and transfer the Sale Shares free from all encumbrances
and with full title guarantee with effect from Completion.
3.3 The Parties irrevocably waive any rights of pre-emption or transfer
conferred on them by the Articles of Association of 24 Seven or under the
JV Agreement or otherwise over the Sale Shares.
3.4 In the event that there is any conflict between the provisions of this
Agreement and the JV Agreement, the provisions of this Agreement shall
prevail.
4 CONSIDERATION
The consideration for the Sale Shares shall be the payment on Completion by
the Buyer to TXUEG of the Purchase Price in cash.
5 COMPLETION
5.1 Completion shall take place immediately following the satisfaction of the
condition set out in clause 2.1 above at the same place as completion of
the EE S&P when all (but not part only) of the following business shall be
transacted:
5.1.1 the Buyer shall pay the Purchase Price by electronic funds transfer
for value on the day of Completion to a bank account nominated by
TXUEG and payment of the Purchase Price into such account shall
constitute a good discharge by the Buyer in respect of it;
5.1.2 TXUEG shall deliver to the Buyer transfers in respect of the Sale
Shares duly executed and completed in favour of the Buyer or as it may
direct or have directed, together with the certificates representing
such Sale Shares and the duly executed powers of attorney or other
authorities under which any of the transfers have been executed;
5.1.3 the Parties shall cause the transfers mentioned in clause 5.1.2 to be
resolved to be registered (subject only to their being duly stamped)
and cause such persons as the Buyer shall direct to be validly
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appointed or, in the case of existing Directors of 24 Seven, removed
as Directors of 24 Seven;
5.1.4 TXUEG shall repay, or procure the repayment to 24 Seven of, all
indebtedness outstanding at Completion from TXUEG or any member of
TXUEG's Group or any director of TXUEG or any member of TXUEG's Group
to 24 Seven; and
5.1.5 the Buyer shall procure that all indebtedness outstanding at
Completion from 24 Seven, any member of 24 Seven's Group or any
director of 24 Seven or any member of 24 Seven's Group to TXUEG is
repaid.
5.2 If the Buyer fails or is unable to comply with any of its obligations
under the preceding provisions of this clause 5 on the Completion Date,
TXUEG shall be deemed to have selected such of the following as it has
selected under clause 5.3 of the EE S&P:
(a) defer Completion to a date not more than 28 days after that date
(in which case the provisions of this clause 5 shall apply to
Completion as so deferred); or
(b) proceed to Completion so far as practicable but without
prejudice to TXUEG's rights (whether under this Agreement
generally or under this clause) to the extent that the Buyer
shall not have complied with its obligations thereunder; or
(c) treat such failure or inability to comply as a repudiatory
breach of this Agreement, acceptance of which shall discharge
TXUEG from its undischarged obligations under this Agreement
(without prejudice to any other remedy which TXUEG may have,
whether in damages or otherwise).
6 POST-COMPLETION MATTERS
6.1 TXUEG hereby declares that for so long as it remains the registered holder
of any of the Sale Shares after Completion it will:
6.1.1 hold the Sale Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in respect
of them after Completion and all rights arising out of or in
connection with them in trust for the Buyer and its successors in
title;
6.1.2 deal with and dispose of the Sale Shares and all such dividends,
distributions and rights as are described in clause 6.1.1 as the Buyer
or any such successor may direct; and
6.1.3 if so requested by the Buyer or any such successor:
(a) vote at all meetings which he shall be entitled to attend as the
registered holder of the Sale Shares in such manner as the Buyer
or any such successor may direct; and
(b) execute all instruments of proxy or other documents which the
Buyer may reasonably require and which may be necessary or
desirable or convenient to enable the Buyer or any such successor
to attend and vote at any such meeting.
6.2 THIRD PARTY LIABILITIES
6.2.1 The Buyer shall use its reasonable endeavours as soon as reasonably
practicable after Completion to procure that TXUEG (and any member of
its Group, excluding EE and 24 Seven) is released from all Third Party
Liabilities.
6.2.2 The Buyer irrevocably and unconditionally agrees to indemnify and
hold harmless TXUEG (for itself and on behalf of any member of its
Group, excluding EE) against all losses, demands, liabilities and
reasonable costs and expenses which TXUEG (or any member of its Group,
excluding EE and 24 Seven) may suffer or incur after the Completion
Date in respect of Third Party Liabilities.
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7 TXUEG'S AND BUYER'S WARRANTIES
7.1 In consideration of the Buyer entering into this Agreement, TXUEG
warrants to the Buyer (subject to clause 8) that each of the Warranties is
true and accurate in all material respects and not misleading in any
material respect at the date of this Agreement.
7.2 TXUEG acknowledges that, in entering into this Agreement, the Buyer has
relied on the Warranties.
7.3 Each of the Warranties shall be construed as being separate and
independent and (except where expressly provided to the contrary) shall not
be limited or restricted by reference to or inference from the terms of any
other Warranty or any other term of this Agreement.
7.4 The Buyer warrants at the date of this Agreement to TXUEG that it is not
aware of any matter which constitutes a breach of the Warranties.
8 BUYER'S REMEDIES; TXUEG PROTECTIONS
8.1 If, whether before or after Completion, the Buyer becomes aware that any
of the Warranties was untrue, inaccurate or misleading or there has been
any breach of the Warranties or any other term of this Agreement, the Buyer
shall not be entitled to treat this Agreement as rescinded or terminated
but shall (for the avoidance of doubt) be entitled to claim damages or
exercise any other right, power or remedy under, and subject to, this
Agreement.
8.2 No liability shall attach to TXUEG in respect of claims under the
Warranties if and to the extent that the limitations in schedule 2 of the
EE S&P apply to such liability.
8.3 The Buyer shall not be entitled to claim that any fact causes any of the
Warranties to be breached if fairly disclosed in the Disclosure Letter (as
defined in the EE S&P) or in any document thereby disclosed and for this
purpose "fairly disclosed" means disclosed in such manner and such detail
as to provide a reasonable purchaser with notice of the matter in question.
9 PENSIONS
The Parties shall implement all the matters set out in schedule 3.
10 CONFIDENTIALITY
The Buyer shall (and shall ensure that its directors, officers,
employees, agents and advisers shall) safeguard, treat as confidential, and
not use for the purposes of its own business, all information, documents
and materials which it acquires in connection with this Agreement and which
relate to the business of TXUEG or any member of TXUEG's Group (excluding
EE and 24 Seven), except:
(a) as may be required by law or by any relevant national or
supranational regulatory authority or by the rules of any
recognised stock exchange, in which case the Buyer shall, if
practicable, supply a copy of the required disclosure to the
other Parties before it is disclosed and comply with the
reasonable requests of the other Parties regarding the extent of
such disclosure;
(b) where it has come into the public domain otherwise than through
breach of this clause 10; and
(c) to the Buyer's professional and financial advisers who are
required to know the same to carry out their duties.
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11 ASSIGNABILITY
11.1 This Agreement shall be binding on and shall enure for the benefit of
each Party's successors and permitted assigns.
11.2 None of the Parties may, without the written consent of the others,
assign any of their respective rights or obligations under this
Agreement.
12 REMEDIES TO BE CUMULATIVE
No remedy conferred by any of the provisions of this Agreement is intended
to be exclusive of any other remedy available at law, in equity, by statute
or otherwise. Each and every other remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter
existing at law in equity, by statute or otherwise. The election by any
Party to pursue one or more of such remedies shall not constitute a waiver
by such Party of the right to pursue any other available remedy.
13 COSTS
Each of the Parties shall be responsible for its respective legal and
other costs incurred in relation to the preparation and completion of this
Agreement.
14 FURTHER ASSURANCE
Each of the Parties shall, and shall use their respective reasonable
endeavours to procure that any necessary third parties shall, execute and
deliver to the other Parties such other instruments and documents and take
such other action as may be required to carry out, evidence and confirm the
provisions of this Agreement.
15 ANNOUNCEMENTS
5.1 Subject as required by law or by any recognised stock exchange or any
relevant national or supra-national regulatory authority, all announcements
by or on behalf of any of the Parties and relating to the subject matter of
this Agreement shall be in terms to be agreed between the Parties in
advance of issue.
15.2 If a Party is required by law or by any recognised stock exchange or any
relevant national or supra-national authority to make an announcement, that
Party shall to the extent practicable and permitted by the relevant law,
rule, order, exchange or body:
(a) provide the other Parties with advance notice of the requirement
and a copy of the announcement to be made; and
(b) permit the other Parties to make representations in relation to
it with a view to avoiding the requirement for an announcement to
be made.
16 ENTIRE AGREEMENT
16.1 Each of the Parties on behalf of itself and as agent for each member of
its respective Group acknowledges and agrees that:
(a) other than the JV Agreement, the Transaction Documents
constitute the whole and only agreement and understanding between
the Parties in connection with 24 Seven and the matters described
in them and in the event of any conflict between the Transaction
Documents and the JV Agreement, the Transaction Documents shall
prevail;
(b) it has not entered into the Transaction Documents in reliance on
any Pre-contractual Statement which is not expressly set out in
the Transaction Documents (or any of them) and, to the extent
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that any Pre-contractual Statement was made or given and is not
expressly set out in the Transaction Documents (or any of them),
it irrevocably and unconditionally waives any claims, rights or
remedies which it may otherwise have in relation thereto; and
(c) it has no right of action or other remedy whatsoever against any
other Party arising out of or in connection with any
Pre-contractual Statement not expressly set out in the
Transaction Documents and the only rights and remedies available
to it in connection with the Transaction Documents are damages
for breach of contract and, for the avoidance of doubt, no Party
has any right to rescind all or any of the Transaction Documents
for negligent or innocent misrepresentation or otherwise,
provided always that this clause 16.1 shall not exclude or limit any
liability or any right which any Party may have in respect of
Pre-Contractual Statements made or given fraudulently or dishonestly or in
circumstances where there has been wilful concealment.
16.2 No purported variation of the Transaction Documents shall be effective
unless made in writing.
17 MISCELLANEOUS
17.1 If any term or provision in this Agreement shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Agreement but the enforceability of the remainder of this
Agreement shall not be affected.
17.2 A Party's failure to insist on strict performance of any provision of
this Agreement shall not be deemed to be a waiver thereof or of any right
or remedy for breach of a like or different nature.
17.3 No waiver shall be effective unless specifically made in writing and
signed by a duly authorised officer of the Party granting such waiver.
17.4 This Agreement may be entered into in any number of counterparts and by
the Parties to it on separate counterparts, each of which when executed and
delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument.
17.5 No term of this Agreement is enforceable under the Contracts (Rights of
Third Parties) Act 1999 by a person who is not a Party.
17.6 If Completion is delayed because of the default of the Buyer and TXUEG is
willing and able to perform its obligations on Completion, the Buyer
shall, in addition to the payment due under clause 5.1.1, pay to TXUEG a
supplementary amount computed as if it were interest on to the payment due
under clause 5.1.1 at a rate determined by TXUEG to be three per cent.
above the London Inter-Bank Offered Rate which appears on Telerate Page
3750 for overnight sterling deposits over the period from (and including)
the Completion Date to (but excluding) the date of actual making of the
payment due under clause 5.1.1, such interest to accrue from day to day.
18 NOTICES
18.1 Any notice or other document to be given under this Agreement shall be
in writing and shall be deemed:
(a) duly given, if left at or sent by (i) first class post or
airmail or express or other fast postal service or (ii)
registered post or (iii) the recorded delivery service or (iv)
facsimile transmission, in each case using the relevant notice
details set out in clause 18.2 or to such other address and/or
number as such Party may, by notice given in accordance with this
clause to all other Parties expressly substitute for such
details; and
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(b) to have been received by the recipient if it is:
(i) delivered by hand, on delivery;
(ii) duly posted or transmitted in accordance with clause
18.1(a) by any of the methods there specified, on the second
(or where sent airmail, fifth) business day after the day of
posting or (in the case of a notice transmitted by facsimile
transmission) upon receipt by the sender of the correct
transmission report;
provided that if, in accordance with the above provisions, any
such notice or other document would otherwise be deemed to be
given or made after 5.00 p.m. on any Business Day, such notice or
document shall be deemed to be given or made at 9.00 a.m. on the
next following Business Day.
18.2 The notice details of the parties are as follows:
(a) the Buyer:
address 81 - 87 High Holborn, London, WC1V 6NU
attention Company Secretary
facsimile no. (020) 7331 3624
(b) TXUEG
address Wherstead Park, Wherstead, Suffolk IP9 2AQ
attention Company Secretary
facsimile no. (01473) 554003
18.3 In proving the giving of a notice it shall be sufficient to prove that
the notice was left or that the envelope containing such notice was
properly addressed and posted or that the correct transmission report was
received by the sender (as the case may be).
19 CHOICE OF LAW AND SUBMISSION TO JURISDICTION
19.1 This Agreement shall be governed by and interpreted in accordance with
English law.
19.2 The Parties hereby submit to the exclusive jurisdiction of the High Court
of Justice in England.
IN WITNESS whereof this Agreement has been executed the day and year first
above written
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SCHEDULE 1
WARRANTIES
1 CAPACITY OF TXUEG
19.3 TXUEG is a company duly incorporated and validly existing under the laws of
England and Wales.
19.4 TXUEG has the requisite power and authority to enter into and perform this
Agreement.
19.5 This Agreement constitutes valid and binding obligations of TXUEG in
accordance with its terms.
19.6 The execution and delivery of this Agreement, and the performance by
TXUEG of its obligations under this Agreement, will not:
(a) result in a breach of any provision of its memorandum or articles
of association; or
(b) result in a breach of any agreement, licence or other instrument
or order, judgement or decree of any court, governmental agency
or regulatory body to which it is a party or by which it is
bound.
20 INSOLVENCY
20.1 No order has been made or petition presented, meeting convened or
resolution passed for the winding up of TXUEG or for a provisional
liquidator to be appointed in respect of TXUEG.
20.2 No administration order has been made and no petition for such an order
has been presented in respect of TXUEG.
20.3 TXUEG is not insolvent, or unable to pay its debts within the meaning of
section 123 of the Insolvency Act 1986, nor has stopped paying its debts as
they fall due.
20.4 No voluntary arrangement has been proposed under section 1 of the
Insolvency Act 1986 in respect of TXUEG.
20.5 No receiver (which expression shall include an administrative receiver)
has been appointed in respect of any of the assets or undertaking of TXUEG.
20.6 No distress or execution has been levied on, or other process commenced
against, the Sale Shares.
20.7 TXUEG is not aware of any circumstances which have arisen which entitle
any person to take any action, appoint any person, commence proceedings or
obtain any order of the type mentioned in paragraphs 20.1 to 20.6 above in
respect of TXUEG, which could have a material adverse effect on the
transaction contemplated by this Agreement.
21 SALE SHARES
21.1 TXUEG is the full legal and beneficial owner of the Sale Shares.
21.2 There is no option, right to acquire, mortgage, charge, pledge, lien or
other form of security or encumbrance on, over or affecting the Sale
Shares, there is no agreement or commitment to give or create any of the
foregoing and no person has made any claim to be entitled to any of the
foregoing.
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21.3 Subject only to compliance with the Articles of Association of 24 Seven
and the JV Agreement, TXUEG is entitled to sell and transfer or procure the
sale and transfer of the full legal and beneficial ownership in the Sale
Shares to the Buyer on the terms set out in this Agreement.
21.4 The Sale Shares are fully paid or credited as fully paid.
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SCHEDULE 2
BASIC INFORMATION ABOUT 24 SEVEN
1. Registered number : 3870728
2. Date of incorporation : 3 November 1999
3. Place of incorporation : England
4. Address of registered office : Harold Hill
Spilsby Road
Romford
Essex RM3 8UB
5. Class of company : private limited
6. Authorised share capital : 25,000,000 H Ordinary Shares of(pound)1
25,000,000 I Ordinary Shares of(pound)1
300 H Preference Shares of 33 1/3p
300 I Preference Shares of 33 1/3p
7. Issued share capital 1,000,001 H Ordinary Shares
1,000,001 I Ordinary Shares
300 H Preference Shares
300 I Preference Shares
8. Directors : Ian Beament
Homer J Gibbs
David Jeffries
Bruno Lescoeur
Paul Marsh
Philip Turberville
Gerald Wingrove
9. Secretary : Mark Bullock
10. Accounting reference date : 31 December
11. Auditors : Arthur Andersen
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SCHEDULE 3
PENSIONS
1 INTERPRETATION
(A) In addition to the provisions of clause 1 of this agreement, this Schedule
shall be construed as set out in this paragraph.
(B) The following expressions and related expressions have the same meanings as
in the Pension Schemes Act 1993: "CASH EQUIVALENT", "CONTRACTED-OUT",
"GUARANTEED MINIMUM PENSION", TRANSFER PREMIUM", "MONEY PURCHASE BENEFITS"
and section 9(2B) rights.
(C) The following expressions have the same meanings as in the Rules of the
ESPS: "SALARY", "PENSIONABLE SALARY", "CONTRIBUTING SERVICE", "PENSIONABLE
SERVICE" and "PARTICIPATING EMPLOYER".
(D) All references to notifications and other communications mean written ones.
(E) The following expressions have the following meanings:
"24 SEVEN" means, for the purposes of this schedule, 24 Seven Utility
Services Limited and 24 Seven Contract Services Limited;
"ACTUAL PAYMENT DATE" means the date on which the Transfer Amount is
actually transferred to the Buyer's Scheme;
"ACTUARY" means a Fellow of the Institute or Faculty of Actuaries or a
firm of those Fellows or a body making available the advice of one of
those Fellows;
"ACTUARY'S LETTER" means the letter dated 16th November 2001 from
TXUEG's Actuary to the Buyer's Actuary relating to this Schedule, a
copy of which is Appendix B;
"AGREED RATE" means a rate per annum equal to the base rate of
Barclays Bank PLC from time to time compounded half-yearly and
references to interest at the Agreed Rate mean interest accruing daily
at the Agreed Rate;
"ALTERNATIVE SCHEME" is as defined in the Protection Regulations;
"AVCS" means additional voluntary contributions paid by Members to the
Pension Scheme other than those applied to purchase added years of
pensionable service;
"BUYER'S ACTUARY" means an Actuary appointed by the Buyer and notified
to TXUEG for the purpose of this schedule. Until further notice by the
Buyer, the Buyer's Actuary is Ian Edwards of Bacon & Woodrow, Epsom;
"BUYER'S SCHEME" means the scheme described in paragraph 3 below,
namely the London Electricity Group of the ESPS, and, where the
context permits, includes its trustees;
"COMPLETION" means completion of the transactions contemplated by
clause 5 of this agreement and "COMPLETION DATE" means the date of
Completion;
"DUE PAYMENT DATE" means a date agreed between TXUEG and the Buyer
which is no later than one month after all the Transfer Conditions
have been satisfied provided they then remain satisfied;
"EMPLOYEE" means any person who, at the Completion Date, is an
employee of 24 Seven and "EMPLOYEES" shall be construed accordingly;
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"EXEMPT APPROVED SCHEME" has the same meaning as in section 592 of
ICTA 1988 and "EXEMPT APPROVED" and "EXEMPT APPROVAL" shall be
construed accordingly;
"TXUEG'S ACTUARY" means an Actuary appointed by TXUEG and notified to
the Buyer for the purpose of this Schedule. Until further notice,
TXUEG's Actuary is Corinne Groves of Bacon & Woodrow, St. Albans;
"INDEX" means an index at the Completion Date comprising as to:
(a) 80 per cent. the FT-Actuaries all-share total return index; and
(b) 20 per cent. the FT-Actuaries index of prices for British
government stocks 5 to 15 years (assuming notional gross interest
is reinvested in the same index at the end of each calendar
month).
If there is any difference between either of the FT-Actuaries indices
as published in the press and the index in accordance with the basis
agreed between the Financial Times, the Institute of Actuaries and the
Faculty of Actuaries, the latter is used for the purposes of this
Schedule;
"INVESTMENT ADJUSTMENT" means the notional investment return, reduced
by 0.1 per cent. per annum to take account of investment expenses,
over the relevant period specified in this Schedule calculated by
comparing the level of the Index at the close of business on the first
day of that period with the level of the Index at close of business on
the last day of that period or, if either of those days is not a day
for which the indices comprising the Index are quoted, the level of
the Index at the close of business on the previous day for which they
were quoted is used;
"JOINING DATE" means (a) 1st April 2002; or (b) such earlier date as
the PSO may require; or (c) another date agreed between TXUEG and the
Buyer, such agreement not to be unreasonably withheld or delayed, in
any case unless the Buyer materially defaults on any obligation under
paragraph 2 below and TXUEG notifies the Buyer that its participation
is to end on an earlier date, such notice to be given four weeks
before participation shall end in consequence of the Buyer's material
default, in which case the day after the expiry of four weeks from
such notice will be the Joining Date;
"MEMBER" means, at any time or during any period specified in this
schedule, an active member of the Pension Scheme in Pensionable
Service (including a member who is temporarily absent under the Rules
on maternity leave);
"MEMBERS' CONTRIBUTIONS" for use in the Actuary's Letter means all
contributions made by or in respect of Transferring Members with
respect to the Participation Period other than AVCs and those
described in paragraph 2(D)(ii) and (iv) below;
"NON-CONSENTING MEMBER" means a person who is an Employee and a Member
at any time during the Participation Period other than a Transferring
Member;
"OPTION FORM" means a form to be completed by Members and delivered to
the Pension Scheme, to be in a form agreed by TXUEG and the Buyer,
such agreement not to be unreasonably withheld or delayed, and
including words substantially in the form set out in Appendix A;
"PARTICIPATION PERIOD" means the period from and including the
Completion Date up to but excluding the Joining Date.
"PENSION SCHEME" means, and this Schedule applies to, the Eastern
Group of the Electricity Supply Pension Scheme (the "ESPS")
established by a resolution of the Electricity Council dated 28th
January 1983, as amended. Where the context requires, the "PENSION
SCHEME" includes its trustees;
13
"PROTECTION REGULATIONS" means the Electricity (Protected Persons)
(England and Wales) Pension Regulations 1990 (S1 1990 No. 346);
"PROTECTED PERSON" is as defined in the Protection Regulations;
"PSO" means the Pension Schemes Office of the Inland Revenue or its
successor in function;
"RETAINED COSTS" for use in the Actuary's Letter means a sum equal to
2 1/4 per cent. per annum of the total Salaries of Employees who are
Transferring Members during the Participation Period (pro rated to the
period of participation);
"RULES" means, in relation to the Pension Scheme, the trust deeds,
rules and other documents governing the Pension Scheme as identified
to the Buyer;
"SENIOR MANAGERS" means D.W. Owens, R.S. Thomas, R.M. Harpley, M.W.
Bullock, P. Gibbons, C. A. Welch.
"TRANSFER AMOUNT" means the amount that is calculated as specified in
the Actuary's Letter. In calculating the Transfer Amount any benefits
under the Pension Scheme which are attributable to AVCs paid by the
Transferring Members and in respect of which the Transferring Members
are not entitled to benefits based on their final pensionable earnings
are disregarded;
"TRANSFER CONDITIONS" means all of the following:
(a) in all material respects (except in relation to paragraph (f) of
this definition, where the Buyer shall comply absolutely) the
Buyer has complied with the requirements of paragraphs 2 and 3
below and the Buyer's Scheme is as described in, and complies
with, paragraph 3 below or TXUEG has, at its absolute discretion,
waived such compliance;
(b) neither the Buyer, any member of the Buyer's Group nor the
Buyer's Scheme has made any statement to the effect that any
benefit which is required to be provided under paragraph 3 below
will be reduced or discontinued;
(c) the Board of Inland Revenue has given written approval to the
transfer of assets from the Pension Scheme to the Buyer's Scheme
in respect of the Transferring Members and any condition to which
that approval is subject is satisfied;
(d) the Pension Scheme has received the Option Forms completed and
signed by the Transferring Members;
(e) the calculation of the Transfer Amount has become final and
binding as set out in this schedule; and
(f) the Buyer's Scheme complies with the minimum funding requirement
(within the meaning of section 56, Pensions Act 1995) (the
"MFR"), such that the value of the Buyer's Scheme's assets
exceeds 100 per cent. of its liabilities as certified by the
Buyer's Actuary to TXUEG's Actuary and there is a certified
schedule of contributions in support of such valuation.
"TRANSFERRING MEMBER" means a person:
(a) who is a Member at the Completion Date and an Employee;
(b) who is a Member immediately before the Joining Date;
(c) who begins to accrue retirement benefits as stated in paragraph
3(B) below under the Buyer's Scheme as of the Joining Date; and
14
(d) in respect of whom the Pension Scheme receives a signed Option
Form with transfer payment selected, by the date specified in the
form for its return, and who does not, before the Joining Date,
withdraw his selection of that option, die or become entitled to
the payment of immediate benefits under the Pension Scheme.
22 24 SEVEN'S PARTICIPATION IN THE PENSION SCHEME
(A) Subject to the treatment of the Pension Scheme as an Exempt Approved Scheme
not being prejudiced and to the Buyer and 24 Seven complying with the terms
of this Schedule, the Rules and all applicable statutory requirements,
TXUEG will, subject to Inland Revenue approval, procure the continued
participation of 24 Seven in the Pension Scheme during the Participation
Period in respect of those Employees who are Members at the Completion Date
in particular (but without prejudice to the generality of the foregoing)
where those Members are Protected Persons.
(B) The Buyer (with such assistance from TXUEG as the Buyer may reasonably
require) will make all necessary arrangements to obtain its own
contracting-out certificate in relation to 24 Seven and will cause the
Employees who are Members to be in contracted-out employment by reference
to the Pension Scheme throughout the Participation Period and promptly
after the end of the Participation Period will make all necessary
arrangements to surrender that certificate as of the end of the
Participation Period.
(C) The Buyer undertakes that it shall not, and undertakes to procure that 24
Seven and any member of the Buyer's Group shall not:
(a) do or omit to do during or in respect of the Participation Period any
act or thing which would or might adversely affect the Exempt Approval
of the Pension Scheme or its status as a contracted-out scheme or
cause the Pension Scheme to be in breach of any statutory requirement;
(b) exercise any power or discretion of a Participating Employer under the
Pension Scheme except on terms (whether as to payment of additional
contributions or otherwise) which TXUEG agrees in writing (such
agreement not to be unreasonably withheld).
(D) The Buyer will procure the prompt payment of the following in respect of
those Employees who are Members during and in respect of the Participation
Period from time to time:
(i) employer's contributions for Members at the rate of 13 per cent.
of their respective Salaries;
(ii) 1 per cent. of Salary in respect of administration expenses;
(iii) Member's contributions and Member's AVCs in accordance with the
Rules; and
(iv) an amount equal to the additional capital cost to the Pension
Scheme of providing benefits on the termination of employment,
early retirement or redundancy of Employees who do not become
Transferring Members as calculated and advised as appropriate by
the Pension Scheme's actuary in accordance with clause 13(1)(e)
and rule 16 or 17 of the ESPS Rules.
(E) The Buyer shall procure that payment of the employer's and Members'
contributions and other payments as stated in paragraph 2(D) above are made
in cleared funds on the twelfth day of each month and will pay interest at
the Agreed Rate on any amount due and unpaid from time to time. Payment
under paragraph 2(D)(ii) shall be made to or to the order of TXUEG.
Payments under paragraphs 2(D)(i), (iii), and (iv) shall be made to the
Pension Scheme.
(F) (a) In this sub-paragraph (F):
15
"LIMITED EARNINGS INCREASE" means, in relation to a Non-Consenting
Member entitled to or accruing defined benefits other than just lump
sum death in service benefits, an increase in earnings after the
Completion Date that has the effect of increasing Pensionable Salary,
compared to what Pensionable Salary would have been if his
Contributing Service had ended at the Completion Date, by no more than
a percentage equal to the assumption used for salary increases in the
Actuary's Letter if the period between the Completion Date and the
termination of his Contributing Service is one year and so in
proportion for a period other than a year. This paragraph (F) applies
separately in respect of each Non-Consenting Member.
(b) The Buyer will pay to the Pension Scheme (or as it may direct) on
demand an amount in cash equal to:
(i) the amount by which the capital value of the benefits payable
under the Pension Scheme to or in respect of any Non-Consenting
Member is increased by an increase in earnings in excess of a
Limited Earnings Increase by the Buyer (or by 24 Seven or any
member of the Buyer's Group); plus
(ii) interest at the Agreed Rate on the amount in sub-paragraph (i)
above in respect of the period from (and including) the date on
which the Non- Consenting Member ceases to be in Contributing
Service by reference to the Pension Scheme up to (but excluding)
the date on which final payment is made in accordance with this
sub-paragraph.
For the purposes of this sub-paragraph (F):
(iii) the amount by which the capital value of the benefits is so
increased is taken to be the amount by which A exceeds B where
"A" is the capital value of the benefits payable under the
Pension Scheme (whether immediately, prospectively or
contingently) to or in respect of the Non-Consenting Member on
and after the date on which the Non-Consenting Member ceases to
be in Contributing Service and "B" is the capital value of the
benefits which would have been so payable had earnings been
increased by a Limited Earnings Increase;
(iv) the amount by which the capital value of the benefits is so
increased is calculated as at the date on which the
Non-Consenting Member ceases to be in Contributing Service and
on the basis of the assumptions and method set out in the
Actuary's Letter in the same way as the unadjusted Transfer
Amount is calculated;
(v) paragraph 5 applies to the calculation referred to in
sub-paragraph (iv) above mutatis mutandis; and
(vi) payment in accordance with this sub-paragraph must be made within
a period of 14 days after the calculation of the amount by which
the capital value has been increased as mentioned in
sub-paragraphs (iii) and (iv) above has become final and binding
in accordance with sub-paragraph (v) above.
(G) The Buyer shall nominate, and shall procure that 24 Seven shall nominate,
such person as TXUEG may direct for the purpose of any provision of or
regulations made under the Pension Schemes Act 1993 or the Pensions Act
1995 which allow employers in multi-employer schemes to nominate a person
to act for them for any purpose and that the Buyer will exercise, and shall
procure that 24 Seven exercises any power and executes any document as
TXUEG may reasonably require to implement the relevant provision and will
not exercise any such power without TXUEG's consent, such consent not to be
unreasonably delayed or refused.
(H) If any actuarial valuation of the Pension Scheme discloses an actuarial
surplus, the principal employer of the Pension Scheme shall have no
obligation to make arrangements to deal with any such surplus such that any
16
part thereof shall be used for the benefit of the Buyer, 24 Seven and any
member of the Buyer's Group or any Employee who is a Member. If any
actuarial valuation of the Pension Scheme prepared under the terms of the
ESPS discloses an actuarial deficit, the Buyer and 24 Seven shall have no
obligation to fund or contribute towards such deficit.
(I) TXUEG shall provide on the Buyer's reasonable demand to the Buyer, on the
expiry of the Participation Period, all relevant pensions data in respect
of Transferring Members' participation in the Pension Scheme.
(J) The Buyer shall provide on reasonable demand to TXUEG accurate and complete
payroll details to enable TXUEG efficiently to administer the Pension
Scheme during the Participation Period in accordance with this schedule and
in compliance with all legal requirements and regulations.
(K) The Buyer shall indemnify and keep indemnified TXUEG and any of TXUEG's
Group in respect of any of the obligations of the Buyer under this
paragraph 2.
(L) During the Participation Period, TXUEG will procure that no alterations are
made to the benefits or contributions of any Employee who is a Member nor
make any amendment which would reduce the Transfer Amount without the prior
written consent of the Buyer and will not terminate contributions to the
Pension Scheme.
(M) If any Member who receives an Option Form (as referred to paragraph 4(A))
does not transfer his past service rights to the Buyer's Scheme pursuant to
the Option Form but does subsequently elect to transfer his past service
benefits to the Buyer's Scheme within the period of two years from the
Completion Date (each subsequent transfer to be referred to in this
paragraph 2 as a delayed transfer) then the transfer payment from the
Pension Scheme to the Buyer's Scheme in respect of that delayed transfer
will be calculated on the same basis as if the Member had elected to
transfer his past service benefits pursuant to the Option Form.
Paragraph 5 and 8 of this schedule shall apply to delayed transfers as if
they were transfers pursuant to the Option Form.
(N) The Buyer acknowledges that benefits up to Inland Revenue limits for two of
the Senior Managers, D.W. Owens and R.S. Thomas, are provided by the
Pension Scheme and the balance of benefits for those individuals is
provided by 24 Seven on an unfunded, unapproved basis. In relation to D.W.
Owens' benefits within the Pension Scheme, the Buyer further acknowledges
that D.W. Owens' Pensionable Salary is expressed to include the amount of
his annual cash bonus.
(O) During the Participation Period the Buyer will procure the prompt payment
to TXUEG of an amount not exceeding (pound)1,000,000 in relation to the
arrears of 24 Seven's contributions for the period from 1st April 2001 to
the Completion Date and the augmentation value relating to 24 Seven Senior
Managers' and P.R. Harvey's enhanced benefits for service up to the
Completion Date, in respect of benefits that are approved by the PSO.
In the event that the Completion Date is after 31st December, 2001, the
amount of (pound)1,000,000 shall be increased by such an amount to reflect
this delay as shall be agreed between TXUEG's Actuary and the Buyer's
Actuary.
23 BUYER'S SCHEME
(A) PARTICULARS OF SCHEME
Not later than three months before the Joining Date the Buyer shall:
(a) procure that 24 Seven shall participate in the Buyer's Scheme; and
17
(b) provide to TXUEG particulars of the group of the ESPS that the Buyer
intends to be the Buyer's Scheme for the purposes of this schedule.
For Members entitled to or accruing defined benefits other than just
lump sum death in service benefits, the scheme (or each such scheme)
must be a scheme which as at the Due Payment Date satisfies the terms
of paragraph 3(B) below.
(B)
(a) General conditions
------------------
The Buyer will procure that at the Joining Date the Buyer's Scheme:
(i) is established and wholly administered in the United Kingdom;
(ii) is Exempt Approved under chapter 1 of part XIV of ICTA 1988 (or
designed so as to be capable of such approval) as an occupational
defined benefits scheme; and
(iii) is contracted-out and a scheme to which the Pension Scheme is
permitted by law to make a transfer payment in respect of the entire
rights under the Pension Scheme of the Transferring Members
(including rights to guaranteed minimum pensions and section 9(2B)
rights).
(b) Future service benefits
-----------------------
The Buyer will, and will procure that the Buyer's Scheme will, make the
offers described below and provide as at and from the Joining Date the
benefits described below in respect of persons who accept the offers. Each
Employee will be offered, in relation to employment from and after the
Joining Date, membership of the Buyer's Scheme on the following basis:
(i) with benefits that TXUEG's Actuary and the Buyer's Actuary shall
agree mirror those that would prospectively have been provided
(including where such benefits comprise enhancements granted on an
individual basis for the Senior Managers where such enhanced benefits
may be provided inside or outside the Buyer's Scheme on a funded or
unfunded basis) by the Pension Scheme and, in respect of the Senior
Managers, by 24 Seven, to and in respect of that Member if he had
continued in membership after the Joining Date (assuming that the
Pension Scheme and the Senior Managers' enhanced benefits are not
altered after the date of this agreement except as mentioned in any
document disclosed to the Buyer as part of the transaction in which
this agreement was made) and taking account of the required amounts
of Members' contributions including the current member contribution
reduction until 31st March 2002 but not any member contribution
reduction thereafter. The offer will not be conditional on the
Employee agreeing to transfer to the Buyer's Scheme the value of his
accrued rights in the Pension Scheme; and
(ii) the Buyer will procure that Members at the Completion Date can
continue to convert AVCs into benefits on the same terms applicable
in the Pension Scheme at the Completion Date. Where a Transferring
Member was purchasing added years while participating in the Pension
Scheme, the Buyer will make arrangements that mirror those under the
Buyer's Scheme.
(c) Past service benefits
---------------------
(i ) The Buyer will, and will procure that the Buyer's Scheme will, make
the offers described below and, in consideration of receipt of the
Transfer Amount, provide the benefits described below in respect of
persons who accept the offers.
(ii) Each person who is an Employee and a Member at the Joining Date in
respect of his Contributing Service in the Pension Scheme will be
offered benefits that TXUEG's Actuary and the Buyer's Actuary shall
agree mirror those applying (including where such benefits comprise
enhancements granted on an individual basis for the Senior Managers,
18
where such enhanced benefits may be provided inside or outside the
Buyer's Scheme on a funded or unfunded basis) for and in respect of
him under the Pension Scheme and, in respect of the Senior Managers,
granted by 24 Seven immediately before the Joining Date in relation
to his Contributing Service.
(iii) Each person referred to above who has paid additional voluntary
contributions will, subject to receipt of assets representing the
person's AVCs, be offered benefits which are at least equal in value
to the amount to be paid by the Pension Scheme to the Buyer's Scheme
in respect of additional voluntary contributions and provide such
benefits (in addition to any others) for and in respect of each such
person who becomes a Transferring Member.
(iv) In respect of additional voluntary contributions to the Pension
Scheme that have been made to buy added years under that scheme, the
Buyer shall offer benefits that mirror the extent permitted by the
PSO, those provided in the Pension Scheme with respect to the same
service and contributions. To the extent that benefits of Protected
Persons cannot be mirrored because of PSO limits, benefits of equal
value to those that cannot be mirrored will be provided in the
Buyer's Scheme to the extent possible within PSO limits.
(v) The Buyer shall procure that the Buyer's Scheme contains a rule the
same as Rule 8(3) of the Rules with respect to the benefits that
Employees who are Members who join the Buyer's Scheme accrue under
the Buyer's Scheme based on the level of Salary that would have
applied for the purpose of the option under that Rule 8(3) had the
Employee continued as a Member.
(vi) The Buyer shall procure that each Transferring Member is given the
same period of (in terms of months and years) Contributing Service as
that which that Transferring Member had under the Pension Scheme.
24 NOTICES TO EMPLOYEES
(A) Not later than two months before the Joining Date the Buyer will issue a
notice in a form agreed by TXUEG and the Buyer, (such agreement not to be
unreasonably withheld or delayed) to the Employees who are Members inviting
them to join the Buyer's Scheme for future service and offering them the
ability to transfer the value of their accrued rights under the Pension
Scheme to the Buyer's Scheme by completing an Option Form, such Option Form
to be returned no later than one week before the Joining Date. The notice
shall explain the options available to the persons concerned under the
Pension Scheme in respect of their accrued rights.
(B) This paragraph 4 shall not apply where the Joining Date is accelerated
because of the Buyer's default. The Buyer shall supply to TXUEG the draft
notice for TXUEG's comments three weeks before the draft notice shall be
issued to Members. TXUEG shall supply its comments on the draft notice to
the Buyer within two weeks of its receipt. The Buyer will then submit a
further draft to TXUEG having considered TXUEG's comments for final
agreement within one week, such agreement not to be unreasonably withheld.
The Buyer will issue the notice and the Option Form to the relevant
Employees as soon as reasonably practicable thereafter.
(C) The parties acknowledge the obligations of the Pension Scheme under
Regulation 27A of the Occupational Pension Schemes (Preservation of
Benefit) Regulations 1991 and will co-operate with each other and the
Pension Scheme with a view to assisting the Pension Scheme in complying
with that Regulation.
25 CALCULATION OF TRANSFER AMOUNT
The Buyer shall provide to TXUEG any documents and information which is
reasonably required for the calculation of the Transfer Amount. TXUEG's
Actuary will calculate the Transfer Amount as soon as reasonably
practicable and in any event within two months following the Joining Date
or two months following receipt of the documents and information
19
required for the calculation of the Transfer Amount if later. As soon as
reasonably practicable and in any event within 14 days after TXUEG's
Actuary has calculated the Transfer Amount (excluding the amount of the
interest and Investment Adjustment but including particulars of the manner
in which they are to be calculated) TXUEG will notify the Buyer of the
result of that calculation and supply to the Buyer's Actuary particulars of
the calculation and the data on which it is based which he reasonably
requires to enable him to check that the calculation is mathematically
correct and made in accordance with the provisions of this schedule. The
Buyer's Actuary has one month from the date on which those particulars and
data have been supplied to him in which he may raise any objection that the
calculation is incorrect. The calculation will be final and binding on
TXUEG and the Buyer on the later of:
(i) if the Buyer's Actuary raises no objection within the terms mentioned
above, the expiry of the period mentioned above in which he may raise
an objection;
(ii) if the Buyer's Actuary raises an objection as mentioned above, the
date of a subsequent written agreement between TXUEG's Actuary and
the Buyer's Actuary that the calculation (or revised calculation) is
correct; or
(iii) if a reference is made to an independent actuary under paragraph 11
below, the date of his determination of the disputed issue.
26 TRANSFER OF TRANSFER AMOUNT AND AVCS
(A) TXUEG will use all reasonable endeavours to procure that on the Due Payment
Date the Pension Scheme transfers to the Buyer's Scheme the Transfer Amount
and the assets representing, as at the date of transfer, the AVCs paid by
the Transferring Members together with the accrued investment returns on
such AVCs.
(B) The Buyer will seek promptly from the Board of Inland Revenue approval to
the transfer of assets from the Pension Scheme to the Buyer's Scheme in
respect of the Transferring Members and, at the Buyer's request, TXUEG will
supply promptly to the Buyer the documents and information which the Buyer
reasonably requires for this purpose.
27 FORM OF TRANSFER
TXUEG and the Buyer will use all reasonable endeavours to secure agreement
between the Pension Scheme and the Buyer's Scheme respectively as to the
particular assets to be transferred representing the Transfer Amount. If
agreement is not reached by the Due Payment Date, a transfer will be made
in cash with a reduction of 1 per cent.. Any securities to be transferred
will be valued at the mid-market price at the close of business on The
London Stock Exchange on the day before the date of transfer.
28 PAYMENTS BY TXUEG AND BUYER
(A) If the Transfer Amount is not transferred in full to the Buyer's Scheme
within one week after the Due Payment Date as provided for in paragraph 6
above, TXUEG shall, subject to sub-paragraphs (B) and (C) below, not later
than one month after receipt of a written demand from the Buyer, pay to the
Buyer, by way of an adjustment of the Purchase Price, the following amount:
(a) if some assets have been transferred from the Pension Scheme to the
Buyer's Scheme (whether before or after that written demand is
received) - the amount by which the Transfer Amount (calculated as at
the date on which those assets were transferred) exceeds the value so
transferred but the excess for this purpose shall:
(i) be the excess adjusted by the Investment Adjustment from (and
including) the date of that transfer up to (but excluding) the
date of payment by TXUEG pursuant to this sub-paragraph; and
20
(ii) be reduced (after the adjustment in sub-paragraph (i) above) if,
despite some assets having been transferred to the Buyer's
Scheme, any benefit remains payable to or in respect of a
Transferring Member under the Pension Scheme; the reduction will
be by the aggregate of the cash equivalents of those benefits;
or
(b) if no assets have been transferred - the amount by which the Transfer
Amount (calculated as at the date on which payment is made to the
Buyer in accordance with this sub-paragraph) exceeds the aggregate of
the cash equivalents of the benefits remaining payable to or in
respect of the Transferring Members under the Pension Scheme when
payment is made in accordance with this sub-paragraph;
less (in either case):
(c) any amount due after any Investment Adjustment from the Buyer to TXUEG
or the Pension Scheme under this schedule; and
(d) (pound)7,000,000 as adjusted (from the Completion Date to the actual
date of payment by TXUEG to the Buyer pursuant to this paragraph) by
the Investment Adjustment.
For the purpose of this sub-paragraph each of the Transferring Members in
respect of whom benefits are so payable shall be deemed to have a right to
a cash equivalent.
The amount derived under sub-paragraphs (a) to (d) above is referred to
below as the "SHORTFALL". (If the amount in sub-paragraph (d) above is
greater than the amount derived under sub-paragraphs (a) to (c) above there
will be no Shortfall.)
(B) If any of the Transfer Conditions ceases to be fulfilled or effective, the
Buyer shall not demand payment pursuant to sub-paragraph (A) above and the
time limit referred to in sub-paragraph (A) above will not commence, or (if
any of the Transfer Conditions cease to be fulfilled or effective after the
time limit has started to run) will be suspended, until all those
conditions are again fulfilled and effective.
(C) No payment shall be due from TXUEG pursuant to sub-paragraph (A) above if
the reason for the Transfer Amount (or part of it) not having been
transferred to the Buyer's Scheme by the expiry of the time limit referred
to above is the failure of the Buyer's Scheme for whatever reason to accept
the whole or any part of the Transfer Amount or if the reason is any other
reason outside the control of TXUEG or the Pension Scheme but, if no
payment is due from TXUEG because of any such other reason outside the
control of TXUEG or the Pension Scheme, payment will become due (subject to
the other provisions of this paragraph) if and when such reason ceases to
exist.
(D) If payment is made by TXUEG in accordance with sub-paragraph (A) above the
amount of that payment will be deducted from the amount otherwise payable
under paragraph 6 of this schedule.
(E) If TXUEG pays to the Buyer an amount pursuant to this paragraph:
(i) forthwith following TXUEG making the payment the Buyer shall procure
that an amount equal to the payment shall be contributed to the
Buyer's Scheme; and
(ii) the Buyer, 24 Seven and all members of the Buyer's Group shall take
all reasonable steps (including the claiming of any relevant
deduction from profits and any repayment of tax) to maximise the
Aggregate Tax Benefit, and the Buyer shall, 14 days after the earlier
of the date on which the Aggregate Tax Benefit has been finally
determined by the Inland Revenue (allowing for the maximum permitted
spread under accounting principles and ICTA 1988) and the date which
falls 4 years after the Completion Date (in which case it shall be a
best estimate of the Aggregate Tax Benefit agreed between the Buyer
and TXUEG), pay to TXUEG, by way of adjustment to the Purchase Price,
an amount equal to the Aggregate Tax Benefit, adjusted (if payment is
21
not made within the 14 day period) by the Investment Adjustment from
(and including) the earlier of those two dates to (but excluding) the
date of payment.
(F) (a) Subject to paragraph (F)(b), if, for a reason outside TXUEG's
control, the value of the aggregate of the assets transferred by the
Pension Scheme to the Buyer's Scheme and the assets transferred by
TXUEG to the Buyer under this paragraph (in the case of non-cash
assets based on the value of the assets transferred as at the date of
transfer) exceeds the Transfer Amount, the Buyer shall, within one
month of such an excess having been transferred, pay to TXUEG, by way
of an adjustment of the Purchase Price, a sum in cash equal to such
excess (less a best estimate agreed between TXUEG and the Buyer of the
Aggregate Tax Benefit which the TXUEG Group has obtained or could have
obtained as a result of paying the excess into the Pension Scheme by
way of contribution ) adjusted by the Investment Adjustment from (and
including) the date of transfer of the excess to the Buyer's Scheme up
to (but excluding) the date of payment of the excess by the Buyer to
TXUEG.
(b) If the reason for such payment in excess of the Transfer Amount is one
of manifest error, the Buyer and TXUEG will first use all reasonable
endeavours (and subject to any legal and Inland Revenue restrictions)
to procure that the trustees of the Buyer's Scheme return the excess
to the trustees of the Pension Scheme and, to the extent that this is
possible and practical, the provisions of paragraph (a) above shall
not then apply.
(G) In this paragraph 8:
"BUYER'S GROUP" means the Buyer and any company which is a member of
the same group of companies as the Buyer for the purposes of Chapter
IV of Part X of ICTA 1988 and "member of the Buyer's Group" means any
such company.
"TXUEG GROUP" means TXUEG and any company which is a member of the
same group of companies as TXUEG for the purposes of Chapter IV of
Part X of ICTA 1988 and "member of the TXUEG Group" means any such
company.
"TAX BENEFIT" means the aggregate of the amount by which the relevant
company's liability to pay corporation tax is or will be reduced and
the amount of any repayment of corporation tax to which the relevant
company is or will be entitled, which, in either case, arises as a
result of the contribution referred to in (E)(i) or (F)(a) above
(including any such reduction or right which is attributable to a
surrender by way of group relief or consortium relief under sections
402 to 413, ICTA 1988 of a loss which arises as a result of the
payment of the contribution); and
"AGGREGATE TAX BENEFIT" means, in (E) above, the aggregate of any Tax
Benefits arising to the Buyer, 24 Seven and the Buyer's Group in
respect of the contribution referred to in (E)(i) and (F) above the
aggregate of the actual Tax Benefit (or potential Tax Benefit that
would have arisen if the contribution had been paid into the Pension
Scheme) arising to TXUEG and any member of the TXUEG Group in respect
of the contribution referred to in (F)(a).
29 TXUEG'S PROTECTION
(A) In this paragraph:
"CLAIM" means a claim relating to:
(a) any Relevant Benefit; and/or
(b) access to any Relevant Benefit or to a scheme providing any Relevant
Benefit,
attributable to employment from and after Completion or, in the case of a
Transferring Member (or any person claiming through or in respect of him),
attributable to employment before or after Completion, which it is alleged
22
TXUEG or the Pension Scheme is liable to provide for or in respect of a
Transferring Member.
"CLAIMANT" means an Employee or any person claiming benefit through or in
respect of him.
"LIABILITY" includes any compensation, damage, loss or requirement of any
court, industrial tribunal or Pensions Ombudsman order, award or direction,
and costs and expenses properly incurred.
"LIABILITY AMOUNT" means the amount of any Liability incurred or sustained
by TXUEG or any member of the Pension Scheme or the Pension Scheme arising
out of or in connection with a Claim by a Claimant.
"RELEVANT BENEFIT" is construed in accordance with section 612 of the
Income and Corporation Taxes Act 1988.
(B) 24 Seven will indemnify, and keep indemnified on an after tax basis, TXUEG,
each member of the TXUEG Group and the Pension Scheme against any Liability
Amount and any liability referred to in paragraph 9(E).
(C) To the extent that this indemnity relates to a Claim against a member of
the TXUEG Group (other than TXUEG) or the Pension Scheme, TXUEG holds the
benefit of the indemnity as trustee for that member or the Pension Scheme
(as the case may be). Without prejudice to the ability of that person to
enforce the indemnity, TXUEG as trustee for him may enforce the indemnity.
(D) In quantifying any Liability Amount, the assumptions set out in the
Actuary's Letter shall be applied as nearly as practicable and, in default
of agreement as to how it should apply, the disagreement shall be resolved
in accordance with paragraph 11.
(E) The liability referred to in paragraph 9(B) is any liability arising under
Regulation 19 of the Protection Regulations relating to the Employees (or
any of them) in respect of a duty imposed on 24 Seven or on any person who
becomes the employer of any of the Employees by reason of action (including
but not limited to a transfer of share capital or undertaking) by 24 Seven
or by any such person. This indemnity is without prejudice to any indemnity
to which TXUEG is entitled under Regulation 20 of the Protection
Regulations.
(F) The Buyer shall guarantee the obligations of 24 Seven under this paragraph
9 and to the extent that 24 Seven does not meet its obligations under this
paragraph 9, the Buyer shall be primarily liable to do so.
(G) If TXUEG becomes aware of any claim, action or demand brought or made by
anyone against TXUEG or the Pension Scheme or a matter which is reasonably
likely to give rise to such a claim, action or demand, TXUEG shall promptly
give written notice to the Buyer of such a claim, action or demand. The
Buyer shall be wholly responsible for the conduct of such a claim and may
settle or compromise any such claim if it thinks fit. TXUEG shall give the
Buyer all such information, documents and access to personnel as the Buyer
may reasonably request to enable the Buyer to deal with such claims.
30 NO ASSISTANCE
The Buyer agrees that it will not, and will procure that the Buyer's Scheme
and the Buyer's Group will not, take any action or provide any assistance
to any person (direct or indirect) which might result in the Pension Scheme
transferring a smaller or a larger amount than the Transfer Amount and the
assets representing Transferring Members' AVCs to the Buyer's Scheme. This
undertaking does not apply to any obligation that the Buyer or the Buyer's
Scheme may have to pay the costs or the expenses of the trustees or members
of the Buyer's Scheme or where the Buyer or the Buyer's Scheme is under a
legal obligation to provide information to any party.
23
31 DISPUTES
(A) Any dispute between TXUEG and the Buyer or between TXUEG's Actuary and the
Buyer's Actuary concerning the calculation of the Transfer Amount or
compliance with paragraph 2, 3 and paragraph 9 as it relates to the
actuarial assumptions described in paragraph 9(D) above shall, in the
absence of agreement between them within one month of the party concerned
having notified the other in writing of the dispute, be referred to an
independent actuary chosen by agreement between TXUEG and the Buyer or,
failing agreement, appointed by the President for the time being of the
Institute of Actuaries at the instance of either party. The independent
actuary shall determine the disputed matter in accordance with this
schedule (including the Actuary's Letter) acting as an expert and not as an
arbitrator and his decision shall be final and binding. The fees and
expenses of the independent Actuary and of the President shall be borne
equally between TXUEG and the Buyer, except that the independent actuary
shall have power to determine, at the request of either of TXUEG or the
Buyer, that the fees and expenses shall be borne exclusively by TXUEG or
the Buyer or in such proportions as the independent actuary may determine
and any such determination shall be final and binding.
(B) Any dispute between TXUEG and the Buyer concerning the calculation of the
Aggregate Tax Benefit for the purpose of paragraph 8 shall, in the absence
of agreement between them within one month of the party concerned having
notified the other in writing of the dispute, be referred to an independent
accountant chosen by agreement between TXUEG and the Buyer or, failing
agreement, appointed by the President for the time being of the Institute
of Chartered Accountants, at the instance of either party. The independent
accountant shall determine the disputed matter acting as an expert and not
as an arbitrator and his decision shall be final and binding. The fees and
expenses of the independent accountant and of the President shall be borne
equally between TXUEG and the Buyer, except that the independent accountant
shall have power to determine, at the request of either of TXUEG or the
Buyer, that the fees and expenses shall be borne exclusively by TXUEG or
the Buyer or in such proportions as the independent accountant may
determine and any such determination shall be final and binding.
32 WARRANTY
(A) TXUEG warrants to the Buyer that the accrued value as at 16th November,
2001 (using the Actuary's Letter) of the unfunded, unapproved benefit
promises provided by 24 Seven for D.W. Owens and R.S. Thomas does not
exceed the amount of (pound)300,000.
(B) No claim shall be brought against TXUEG unless the Buyer shall have given
to TXUEG written notice of such claim specifying the Buyer's then best
estimate of the amount claimed (detailing the Buyer's calculation of the
loss alleged to have been suffered by it) on or before the second
anniversary of Completion.
In addition, the liability of TXUEG under this paragraph shall absolutely
determine (if such claim has not been previously satisfied, settled or
withdrawn) if legal proceedings in respect of such claim shall not have
been commenced within nine months of the service of such notice (and for
this purpose proceedings shall not be deemed to have been commenced unless
they shall have been properly issued and served upon TXUEG).
33 UNDERTAKING
The Buyer shall co-operate with TXUEG in order to enable TXUEG to obtain a
new contracting-out certificate in its name or the name of any member of
the TXUEG Group.
34 INDEMNITY
Other than in respect of the Buyer's payment of employer's contributions
during the Participation Period as set out in this schedule, TXUEG shall
indemnify the Buyer on an after tax basis against all costs, liabilities
and expenses arising or which may arise out of the operation of section 75
24
of the Pensions Act 1995 in respect of the Participation Period, except
where such cost is attributable to an act or omission of the Buyer or any
of 24 Seven Utility Services Limited and 24 Seven Contract Services Limited
or any of the Buyer's Group.
25
APPENDIX A
OPTION FORM
TO BE COMPLETED AND RETURNED TO [ ] BY [ ]
To: The trustees of the Pension Scheme (the "[ ] SCHEME")
I have read and understood the notice dated [ ], in which the [Buyer's Scheme]
(the "[ ] SCHEME") has offered to provide benefits in respect of my Pensionable
Service/Contributing Service under the Pension Scheme up to [Joining Date] and
in which the options available to me in respect of my accrued rights under the
Pension Scheme have been explained.
I have had the opportunity to take independent financial advice before
completing this form.
PLEASE SPECIFY WHICH ONE OF THE OPTIONS YOU SELECT BY TICKING THE BOX ALONGSIDE
IT AND THEN SIGNING AND COMPLETING THIS FORM
OPTION A - TRANSFER TO [BUYER'S] SCHEME
I have applied to become a member of the [Buyer's]
Scheme with effect on and from [Joining Date]. I
request the trustees of the Pension Scheme to
transfer the value of all benefits relating -----
to my membership of thePension Scheme which
have accrued to or in respect of me under the BOX
Pension Scheme to the trustees of the [Buyer's]
Scheme to secure benefits for me as mentioned in -----
the notice referred to above. I understand and
acknowledge that in complying with this request
the trustees of the Pension Scheme will be discharged
from any obligation to provide benefits to me or any
person claiming under me or in respect of my membership.
B - OTHER OPTIONS
I do not want to transfer the value of my accrued
benefits to the [Buyer's] Scheme. I request the
Pension Scheme to send me further details -----
details of the alternative options which I have.
BOX
-----
IMPORTANT - PLEASE NOTE THAT THE BENEFITS OFFERED IN OPTION A WILL BE AVAILABLE
ONLY IF THIS FORM IS RETURNED, DULY COMPLETED, BY
Signature ....................... Date ...................................
Name ............................)
) block capitals
Address .........................) National Insurance No. ..........
26
APPENDIX B
BACON & WOODROW
Actuaries and Consultants
Ivy House, 107 St. Peter's Street, St. Albans, Herts AL1 3EW
Tel: +64 1727 855566 Fax: +44 1727 834343
www.bacon-woodrow.com
Private & Confidential
Mr. I Edwards 16 November 2001
Bacon & Woodrow
Parkside House Out Ref: CAG/saf0535-doc
Ashley Road
Epson
Surrey
KT18 5BS
Dear Ian
Project Pear (24 Seven)
This is the Actuary's Letter referred to in Schedule 3 of the Agreement
relating to Pensions.
Yours sincerely
For Bacon & Woodrow
/s/ Carinae Groves
------------------
Mrs. C.A. Groves
(TXUEG's Actuary)
Countersigned
/s/ Ian Edwards
-----------------
Mr. I. Edwards
(Buyer's Actuary)
Enc.
27
BACON & WOODROW
Actuaries and Consultants
TXU
Actuarial Methods and Assumptions for the calculation of the Transfer Amount
for Pension Scheme members as defined in Schedule 3 - Pensions
1. Actuarial Method
The past service liabilities will be calculated for the Transferring
Members in accordance with the actuarial assumptions set out in section
2 below using pensionable service to and Salary or Pensionable Salary
(as the case requires) over the year to the Completion Date, and
adjusted to the Actual Payment Date in accordance with the provisions
in sections 3 and 4 below. The past service liabilities will be based
on the benefit structure applying for and in respect of such
Transferring Member immediately prior to the Completion Date.
For this purpose pensionable services includes any additional service
resulting from a previous transfer in or the accrued part of any added
years secured by additional member contributions. In the event that a
Transferring Member's Salary or Pensionable Salary represents less than
a full year, it should be grossed up to the annual equivalent.
For the avoidance of doubt the past service liabilities shall include
the accrued element of the Transferring Member's ill health pension
and death in service pensions. It shall take no account of benefits for
service after the Completion Date.
2. Actuarial Assumptions
Investment Return The annualized gross redemption yield
on the FT-Actuaries 20 year Gilt
Index (at close of business on the day
before the Completion Date), plus 1.75%
pa prior to retirement/0.75% pa after
retirement, rounded to the nearest 0.01%
pa compound
Increase in prices 100 x [(11 + G) / (1+ I) - 1] % pa
where G is the annualized gross
redemption yield on the FT-Actuaries 20
Year Gilt Index (at close of business on
the day before the Completion Date) and
I is the arithmetic average of the
annualized gross redemption yields on
the FT-Actuaries Over 5 Year
Index-Linked Gilt Index with 0% and 5%
inflation (at close of business on the
day before the Completion Date),
respectively. The figures shall be
rounded to the nearest 0.01% pa compound
Salary or Pensionable Salary 1.0% pa (with no averaging at the
increases in excess of assumed date of exit from active
increases in prices membership) plus an allowance for
promotional increases in line with the
attached table
Increases in Section 148 1.0% pa
Orders in excess of
increases in prices
Increase to pensions once in In line with increases in prices plus
payment 0.2% pa on pensions in excess of GMPs
Nil on GMPs accrued before 6 April 1988
In line with increases in prices, less
0.4% pa, on GMPs accrued after 5 April
1998
Increases to pensions and In line with increases in prices on
lump sums in deferment pensions in excess of GMPs
28
BACON & WOODROW
Actuaries and Consultants
Withdrawals In accordance with attached table
Age basis Age nearest birthday
Death in service and in In accordance with standard tables,
deferment adjusted as follows:
Males 75% of AM92 unrated
Females 75% of AF92 unrated
Retirement in normal health Average age of retirement is assumed to
be 60 for all members
Retirement from deferment At the member's Normal Pension Age
applying under the Rules of the Scheme,
with a 17% reduction for early payment
of pre-17 May 1 1990 benefits for pre-1
April 1989 male joiners under ESPS
Retirement in ill-health In accordance with attached table
(for ESPS members only)
Death after retirement In accordance with the standard table
PMA92/PFA92 (base year 2020), related up
in age as follows:
Males (normal health) + 1 year
Males (ill-health) + 9 years
Females (normal health) + 2 years
Females (ill-health) + 9 years
Widow + 2 years
Widowers + 2 years
Family Details 90% of members are assumed to be married
at retirement or death before retire-
ment. A man is assumed to be 2 years
older than his wife.
3. Market Value Adjustment
The liabilities assessed using the above actuarial assumptions shall be
increased to the Actual Payment Date by assuming investment at the
Completion Date in the following indices:
1. 80% in the FT - Actuaries All-Share index
2. 20% in the FT - Actuaries 5-15 Years Fixed Interest Gilt
Index.
The value shall be increased to the Actual Payment Date by reference to
the published total return indices reduced by 0.1% pa to allow for
investment expenses. More precisely, the total return on the portion in
each of 1 or 2 above before reduction for investment expenses will be
determined as the total return index at close of business on the last
working day before the Accrual Payment Date divided by the total return
index at close of business on the last working day before the
Completion Date. The market value of the liabilities at the Accrual
Payment Date is then the product of a) and b) below reduced by 0.1% pa
between Completion Date and Actual Payment Date
a) the market value of the liabilities at Completion Date
b) the sum of the ratios of the relevant total return
indices multiplied by the national investment in those
indices at the Completion Date
29
BACON & WOODROW
Actuaries and Consultants
4. Transfer Amount
The Transfer Amount at the Actual Payment Date will be:
a) the value of the liabilities at the Actual Payment Date as
calculated under 3 above, plus
b) the Members' Contributions less the Retained Costs having
adjusted each net contribution between the day of receipt by
the Pension Scheme of the relevant contribution to the Actual
Payment Date, by the ratio of the total index of the
FT-Actuaries All-Share index at close of business on the last
working day before the Actual Payment Date to the total return
index of the FT-Actuaries All-Share index at close of business
on the last working day before the day of receipt by the
Pension Scheme of the relevant contribution
c) the value, if any, at Joining Date calculated using the
actuarial assumptions in 2. above of contributions at the
rate of 1% of Salaries payable monthly in arrears from
Completion Date to 31 March 2002 in respect of Transferring
Members who were Members of the Eastern Group of ESPS on 31
March 1999 and who remain as such immediately before
Joining Date and who agree to join the Buyer's Scheme from
the Joining Date. This value shall be adjusted between
Joining Date to the Actual Payment Date by the ratio of the
total return index of the FT - Actuaries All-Share Index at
close of business on the last working day before Actual
Payment Date to the total return index of the FT - Actuaries
All-Share index at close of business on the last working day
before Joining Date
30
BACON & WOODROW
Actuaries and Consultants
TXU
ACTUARIAL ASSUMPTIONS - TABLES OF ASSUMED RATES OF
ILL-HEALTH RETIREMENT, WITHDRAWALS AND PROMOTIONAL SALARY INCREASES
ILL-HEALTH(1) WITHDRAWALS(1) PROMOTIONAL
SALARY SCALE
AGE MALES FEMALES MALES FEMALES MALES & FEMALES
20 0 0 7,500 15,000 1.000
21 0 0 7,500 15,000 1,070
22 0 0 7,500 15,000 1,114
23 0 0 7,620 14,678 1,224
24 0 0 7,358 15,118 1,309
25 33 0 6,420 15,345 1,400
26 40 0 5,828 15,728 1,449
27 40 0 5,228 15,833 1,499
28 47 0 4,628 15,645 1,551
29 47 0 4,238 14,948 1,604
30 58 45 3,855 13,905 1,660
31 65 60 3,473 12,555 1,702
32 73 75 3,113 11,235 1,745
33 87 90 2,783 9,960 1,789
34 95 105 2,535 9,195 1,834
35 102 120 2,310 8,490 1,880
36 117 135 2,123 7,845 1,922
37 127 150 1,943 7,290 1,965
38 143 180 1,778 6,818 2,009
39 162 210 1,665 6,270 2,054
40 180 240 1,568 5,813 2,100
41 207 270 1,478 5,415 2,129
42 233 300 1,395 5,048 2,159
43 260 360 1,313 4,688 2,189
44 287 420 1,238 4,320 2,219
45 312 480 1,163 3,968 2,250
46 345 540 1,080 3,630 2,266
47 392 600 1,005 3,308 2,282
48 432 630 923 2,993 2,298
49 497 660 833 2,738 2,314
50 590 690 750 2,498 2,330
51 710 720 0 0 2,330
52 828 750 0 0 2,330
53 968 1,050 0 0 2,330
54 1,148 1,350 0 0 2,330
55 1,347 1,650 0 0 2,330
56 1,598 1,950 0 0 2,330
57 1,877 2,250 0 0 2,330
58 2,235 2,550 0 0 2,330
59 2,672 2,850 0 0 2,330
60 3,235 3,150 0 0 2,330
61 3,925 3,450 0 0 2,330
62 4,687 3,750 0 0 2,330
63 0.00 0.00 0 0 2,330
<FN>
1 The figures shown are the number of ill-health retirements and withdrawals
during the year per 100,000 members at the beginning of each year.
</FN>
31
EXECUTION PAGE
TXUEG
SIGNED by )
for and on behalf of ) KEN MCLEOD
TXU EUROPE GROUP PLC ) ..................................
Director / duly authorised
THE BUYER
SIGNED by )
for and on behalf of ) ROBERT HIGSON
LONDON ELECTRICITY GROUP PLC ) ..................................
Director / duly authorised
32