EXHIBIT 2.1
POWER PARTNERSHIP PTY LTD
ACN 070 061 282
and
UNITED ENERGY LIMITED
ACN 064 651 029
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POWER PARTNERSHIP
ASSET PURCHASE AGREEMENT
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Freehill Hollingdale & Page
Solicitors
101 Collins Street
Melbourne VIC 3000
Australia
Telephone: (03) 288 1234
Facsimile: (03) 288 1567
Reference: RWN/SMR/1737493
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . 3
2. SALE AND PURCHASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Dates for Payment . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . 5
3. COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Date for Completion . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Asset Buyer's Obligations at Completion . . . . . . . . . . . . 5
3.3 Property and Risk . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Interdependency between this agreement and Share Sale Agreement 6
3.5 Inconsistencies . . . . . . . . . . . . . . . . . . . . . . . . 6
4. ASSET BUYER'S WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Asset Buyer's Warranties. . . . . . . . . . . . . . . . . . . . 6
5. SELLER'S WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.1 Seller's Warranties . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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. . . . . . . . . . . . . . 9
8. GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.1 Government law and jurisdiction . . . . . . . . . . . . . . . . 10
8.2 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.3 Variation . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8.4 Further assurances. . . . . . . . . . . . . . . . . . . . . . . 11
8.5 Specific performance. . . . . . . . . . . . . . . . . . . . . . 11
8.6 Third party rights. . . . . . . . . . . . . . . . . . . . . . . 11
8.7 This agreement supersedes others. . . . . . . . . . . . . . . . 11
THIS ASSET PURCHASE AGREEMENT is made on 7 August 1995 between the following
parties:
1. POWER PARTNERSHIP PTY LTD ACN 070 061 282 of Level 27, 530 Collins Street,
Melbourne, Victoria ("Seller"); and
2. UNITED ENERGY LIMITED ACN 064 651 029 of 43-45 Centreway, Mt. Waverley 3149
("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 Seller is able to give the Financial
Assistance, being:
(a) (where no application is made under section 205(12) of the Corporations
Law) the first Business Day after the 21 day notice period referred to in
section 205(12) has expired; or
(b) (where an application is or applications are made under section 205(12) of
the Corporations Law) the first Business Day after:
(1) the application or each application has been withdrawn; or
(2) the Court has approved the giving of the Financial Assistance,
whichever applicable date first occurs.
"ASSETS" means the Plant and Equipment.
"AUTHORISATION" includes:
(a) any consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with a
Governmental Agency; and
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(b) in relation to anything which may be proscribed or restricted in whole or
in part by law or otherwise if a Governmental Agency intervenes or acts in
any way within a specified period after lodgement, registration or other
notification of anything, the expiration of that period without the
intervention or action by that Governmental Agency.
"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.
"BORROWING ACT" means the Borrowing and Investment Powers Act 1987.
"COMPLETION" means completion of the sale and purchase of the Assets under
clause 3.
"COMPLETION DATE" means, subject to clause 5.5 of the Share Sale Agreement, the
first Business Day after the Approval Date.
"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 and the government of
any state, territory, municipality or other political subdivision of a country,
and any administrative or judicial body, department, commission, authority,
instrumentality, tribunal, agency or entity of any such government.
"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 Seller) 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, switch yard
equipment and all other plant and
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equipment used in the reticulation, transformation or metering of electrical
power which, in its ordinary use, is located in a fixed position wherever
located.
"POWER" means any right, power, authority, discretion or remedy conferred on the
parties by this agreement or any applicable law.
"PURCHASE PRICE" means $950.5 million.
"SECURITY INTEREST" means an interest or power:
(a) reserved in or over an interest in any asset including, but not limited to,
any retention of title; or
(b) created or otherwise arising in or over any interest in any asset under a
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 or
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 so titled to be entered into between
State Electricity Commission of Victoria, the State of Victoria and Power
Partnership Pty Ltd under which Power Partnership Pty Ltd shall acquire, inter
alia, all the issued ordinary shares in the capital of the Asset Buyer.
"STATE" means the State of Victoria.
"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.
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;
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(e) an expression importing a natural person includes any company, partnership,
joint venture, association, corporation or other body corporate and 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 any thing is to be done is not a Business Day,
that thing must be done on or by the next Business Day;
(k) no rule of construction applies to the disadvantage of a party because that
party was responsible for the preparation of this agreement or any part of
it;
(l) a covenant or agreement on the part of two or more persons binds them
jointly and severally;
(m) a reference to an agreement other than this agreement includes an
undertaking, agreement or legally enforceable arrangement or understanding
whether or not in writing;
(n) a reference to an asset includes all property of any nature, including, but
not limited to, a business, and all rights, revenues and benefits;
(o) a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(p) a reference to liquidation includes appointment of an administrator,
compromise, arrangement, merger, amalgamation, reconstruction, winding-up,
dissolution, assignment for the benefit of creditors, scheme, composition
or arrangement with creditors, insolvency, bankruptcy, or any similar
procedure or, where applicable, changes in the constitution of any
partnership or person, or death; and
(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.
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2. SALE AND 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:
(a) motor vehicles and mobile plant: $9 million;
(b) general plant and equipment: $8.2 million; and
(c) distribution plant and equipment: $933.3 million.
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.
2.2 DATES FOR PAYMENT
On and subject to the terms of this agreement, the Asset Buyer must pay the
Purchase Price on demand by the Seller.
2.3 METHOD OF PAYMENT
All payments to be made under this agreement must be made by bank cheque or in
such other method as may be agreed in writing between the Seller and the Asset
Buyer.
3. COMPLETION
3.1 DATE FOR COMPLETION
Completion must take place on the Completion Date at 10 am at the office of the
Seller's solicitors, Freehill Hollingdale & Page, 101 Collins Street, Melbourne.
3.2 ASSET BUYER'S OBLIGATIONS AT COMPLETION
At Completion, the Asset Buyer must pay the Seller the Purchase Price as
described in clause 2.
3.3 PROPERTY AND RISK
Property and risk in the Assets shall pass to the Asset Buyer on the Completion
Date.
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3.4 INTERDEPENDENCY BETWEEN THIS AGREEMENT AND SHARE SALE AGREEMENT
It is the intention of the parties that:
(a) Completion under this agreement;
(b) completion under the Share Sale Agreement;
(c) completion under the Asset Sale Agreement; and
(d) payment of the SECV Loan and TCV Loan under clause 6 of the Share Sale
Agreement,
are interdependent, so that if the obligations of the parties in respect of a
particular completion or payment under clause 6 are not satisfied, then no
delivery or payment which has been made, will be deemed to have been made.
For the avoidance of doubt the parties acknowledge and agree that once
Completion under this agreement, completion under the Share Sale Agreement and
the payments under clause 6 of the Share Sale Agreement have occurred, as a
chronological sequence of events, all deliveries and payments will be deemed to
have taken place in the order in which they occurred.
3.5 INCONSISTENCIES
In the event there are any inconsistencies between this agreement and the Share
Sale Agreement, the provisions of the Share Sale Agreement shall prevail.
4. ASSET BUYER'S WARRANTIES
4.1 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) the 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
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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
instruments.
5. SELLER'S WARRANTIES
5.1 SELLER'S WARRANTIES
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.
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5.2 REMEDIES
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.
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 this agreement; and
(b) any fine, penalty or other cost in respect of a failure to pay any Duty
except to the extent that the fine, penalty or other cost is caused by an
act or default on the part of the Seller.
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:
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(1) if to the Seller:
Address: Power Partnership Pty Ltd
91 William Street
Melbourne 3000
Attention: Mr Andrew M Guarriello
Facsimile: (03) 9627 2070;
(2) if to the Asset Buyer:
Address: United Energy Limited
43-45 Centreway
Mt Waverley 3149
Attention: The Company Secretary
Facsimile: (03) 9222 9223,
or as specified to the sender by any party by notice;
(b) where the sender is a company, must be signed by an Officer or under the
common seal of the sender;
(c) is regarded as being given by the sender and received by the addressee:
(1) if by delivery in person, when delivered to the addressee;
(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 or
is after 4.00 pm (addressee's time) it is regarded as received at 9.00 am
on the following Business Day; and
(d) can be relied upon by the addressee and the addressee is not liable to any
other person for any consequences of that reliance if the addressee
believes it to be genuine, correct and authorised by the sender.
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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 GOVERNMENT LAW AND JURISDICTION
(a) This agreement is governed by the laws of Victoria. Each party irrevocably
submits to the exclusive jurisdiction of the courts of Victoria.
(b) Each party irrevocably waives any objection to the venue of any legal
process on the basis that the process has been brought in an inconvenient
forum.
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 party granting the waiver.
(b) A failure or delay in exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or non-exercise
of a right or Power arising from a breach of this agreement or on a default
under this agreement as constituting a waiver of that right or Power.
(d) A party may not rely on any conduct of another party as a defence to
exercise of a right or Power by that other party.
(e) This clause 8.2 may not itself be waived except by writing executed by the
party granting the waiver.
8.3 VARIATION
A variation of any term of this agreement must be in writing and executed by the
parties.
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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 SPECIFIC PERFORMANCE
The Seller acknowledges that monetary damages alone would not be adequate
compensation to the Asset Buyer for the Seller's breach of its obligations under
this agreement and that accordingly specific performance of those obligations is
an appropriate remedy.
8.6 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.
8.7 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.
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EXECUTED by the parties as an agreement.
THE COMMON SEAL of
POWER PARTNERSHIP PTY LTD
is affixed in accordance with
its articles of association in
the presence of:
/s/Robert Green /s/G.E. Timms
----------------------------------- ------------------------------------
Director Director/Secretary
/s/Robert Green /s/G.E. Timms
----------------------------------- ------------------------------------
Name (please print) Name (please print)
THE COMMON SEAL of
UNITED ENERGY LIMITED
is affixed in accordance with
its articles of association in
the presence of:
/s/Noel Bond /s/Brian Hamley
----------------------------------- ------------------------------------
Director Director
/s/Noel Bond /s/Brian Hamley
----------------------------------- ------------------------------------
Name (please print) Name (please print)