Victorian Current Acts Victorian Current ActsSchedule 1—The Agreement
Sale of Business and Shares Agreement
SALE OF BUSINESS AND SHARES AGREEMENT made 10 May 1995
BETWEEN
(1) THE HONOURABLE ALAN STOCKDALE , Treasurer of the State of Victoria acting for and on behalf of the Crown in right of the State of Victoria ( the "State" );
(2) VICGRAIN OPERATIONS LIMITED ACN 069 291 532 of 24–28 Collins Street, Melbourne, Victoria ("the Purchaser");
(3) VICTORIAN GRAIN SERVICES LIMITED ACN 059 347 349 of 24–28 Collins Street, Melbourne, Victoria ("Victorian Grain Services");
(4) GRAINCORP OPERATIONS LIMITED ACN 003 875 401 of Level 10, 51 Druitt Street, Sydney, NSW ("GrainCorp"); and
(5) THE AUSTRALIAN
BARLEY BOARD of Grain House,
123–130 South Terrace, Adelaide, South
Australia ( "ABB" ).
RECITALS:
A. The State of Victoria by the Grain Elevators Act 1934 established The Grain Elevators Board ( "the GEB" ) as a body corporate owned by the State, and the GEB now operates pursuant to the Grain Elevators Act 1958 (the "Act" ).
B. In accordance with the Act, the GEB constructed, and now operates and maintains facilities for receiving, storing and out-turning Grain and other dry and semi-dry bulk products and carries on related business activities.
C. The GEB has been declared to be a "reorganising body" under Part 2 of the State Owned Enterprises Act 1992 and has received or will before the Completion Date receive a duly authorised direction pursuant to section 9 of that Act to transfer certain assets to its wholly owned subsidiary.
D. The State wishes to dispose of the Business including all of the GEB's right, title and interest in the Assets (including the Shares) and Liabilities and the Purchaser wishes to acquire the Business, the Assets and Liabilities and each has respectively agreed to do so on the terms and conditions of this agreement.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1.1 Definitions
In this agreement unless the contrary intention appears—
"this agreement" means this agreement, the schedules and any annexures to this agreement;
"Assets" means those assets owned by the GEB which are used in the Business and are set out in Schedule 1 (which does not include the Fixed Assets) including—
(i) any legal or equitable estate or interest in personal property, including a contingent one; and
(ii) any right, privilege and immunity, including a contingent or prospective one;
"Business" means the business of the GEB described in the Recital B;
"Business Day" means a day on which banks in Melbourne are open for business during normal hours;
"Completion" means completion of the sale and purchase of the Business in accordance with clause 5;
"Completion Date" means 30 June 1995 or such other date after 30 June 1995 but prior to or on 31 October 1995 as is notified by the State under clause 5.1;
"Consideration" means the consideration for the acquisition of the Business and Assets as defined in clause 3.1;
"Contracts" means all agreements and contracts to which the GEB or the State in respect of the GEB is a party, including without limitation, insurance policies and contracts with Customers, but excluding any contracts giving rise to an equitable or legal interest in land in favour of the GEB and excluding any contracts relating to Excluded Liabilities;
"Customers" means persons who use the facilities and services of the Business including Grain Customers;
"the Direction" means the direction of the Treasurer pursuant to section 9 of the State Owned Enterprises Act 1995 referred to in Recital C;
"Employee" means a person who on the Completion Date is an employee of the GEB other than an Excluded Employee;
"Employee Entitlements" means the vested and contingent amounts or entitlements to which Employees are entitled as at the Completion Date in respect of sick leave, maternity leave, annual leave, long service leave, accrued rostered hours for rostered days off and approved time off in lieu of overtime;
"Excluded Employees" means those persons in respect of whom written nomination is delivered to the State by the Purchaser before execution of this agreement;
"Excluded Liabilities" means the Liabilities described in Schedule 2;
"Fixed Assets" means all inventory and motor vehicles used by the Business and all assets noted in the Assets Register of the GEB (which is maintained at its head office at 43–51 Lonsdale Street, Melbourne) and all Land which is transferred to the GEB Subsidiary under the Direction;
"GEB Subsidiary" means the entity referred to in clause 2.3;
"Grain" means grains, oil seeds and pulses of all kinds, qualities and varieties including, wheat, barley, oats, sorghum, maize and rice;
"Grain Customers" means Growers and other owners from time to time of Grain stored in the facilities of the Business;
"Growers" means growers of Grain who as part of their farming business, generally deliver Grain to the facilities of the Business;
"Immediately Available Funds" means funds—
(a) which are upon payment immediately available for use and access by the recipient, or if paid into a bank account, immediately available for withdrawal from that bank account by the person or persons entitled to operate that bank account; and
(b) the payment of which is not capable of being cancelled or avoided by the payer or any person on behalf of the payer;
"Land" means any legal or equitable estate in real property vested in the GEB;
"Liabilities" means any and all liabilities and obligations of the GEB in respect of the Business of any nature known or unknown and duties, actual contingent or prospective, excluding any bank overdraft, loans and the Excluded Liabilities and including but not limited to—
(a) all obligations and burdens arising from the Assets and Fixed Assets;
(b) Deferred Revenue;
(c) contractual and lease obligations;
(d) payment obligations in respect of trade creditors and accruals;
(e) liabilities to pay Employee Entitlements; and
(f) liability to pay the Superannuation Provision,
as defined in the Balance Sheet and notes of the GEB in its 1994 Annual Report;
"Plant and Equipment Leases" means the leases set out in Item 1 of Schedule 1;
"Projected Schedule" means the Projected Schedule of Assets (other than Shares) and Liabilities in Schedule 3;
"Purchase Price" means the amount determined under clause 4;
"Purchaser's Fund" means a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Commonwealth) which has been established or identified by the Purchaser for the benefit of the Transferring Members under clause 20;
"Scheme" means each of the State Superannuation Revised Scheme, State Superannuation New Scheme, State Employee Retirement Benefits Scheme and the Transport Superannuation Scheme;
"Shares" means shares held by the GEB immediately before Completion in the GEB Subsidiary;
"Superannuation Provision" means in respect of each Scheme, an amount calculated by an actuary appointed by the State as the amount payable to the Trustee of that Scheme in full and final satisfaction of the liability of the GEB to the Trustee of that Scheme at the Completion Date;
"Transferring Employee" means an employee who accepts employment with the Purchaser in accordance with clause 19;
"Transferring Member" means a Transferring Employee who has elected to transfer his or her superannuation benefits under clause 20.5(a);
"Trustee" in relation to a Scheme means the entity which holds the assets of the Scheme on behalf of the members, whether or not the State.
1.2 Interpretation
In this agreement unless the contrary intention appears—
(a) a reference to this agreement, any other agreement or another document includes any variation or replacement of any of them;
(b) a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;
(c) a reference to a clause includes a sub-clause and a reference to a paragraph includes a sub-paragraph;
(d) the singular includes the plural and vice versa;
(e) a reference to any gender includes all genders;
(f) where an expression is deferred, another part of speech or grammatical form of that expression has a corresponding meaning;
(g) the word "person" includes a firm, body corporate, and unincorporated association or an authority;
(h) a reference to a person includes a reference to a person's executors, administrators, successors, substitutes (including without limitation, persons taking by novation) and assigns;
(i) a reference to an accounting term is to be interpreted in accordance with accounting standards under the Corporations Law, Schedule 5 to the Corporations Regulations and, where not inconsistent with those accounting standards and that schedule, generally accepted principles and practices in Australia consistently applied by a body corporate or as between bodies corporate and over time;
(j) headings are for convenience only and are not an aid in the interpretation of this agreement;
(k) words and phrases defined in the recitals or elsewhere in this agreement have the meaning there ascribed to them; and
(l) where any obligation to be performed under this agreement falls on a day other than a Business Day, this agreement shall be construed as requiring that obligation to be performed on the next Business Day.
1.3 Purchaser
For the purposes of clauses 14 and 15, references to the Purchaser in the context of the provision or disclosure of information, any inspection or examination or the making of and judgment or evaluation shall be taken to include each of the Purchaser, ABB, Victorian Grain Services, GrainCorp or any person acting on behalf of any of them.
2.1 Condition
Clauses 3 to 29 (other than clause 4.3) inclusive of this agreement are of no force or effect unless and until—
(a) the Parliament of Victoria has enacted legislation that has come into effect which ratifies this agreement and authorises its implementation; and
(b) the Direction is in force.
2.2 Satisfaction of Condition
The parties shall use reasonable endeavours to secure satisfaction of the conditions in paragraph 2.1 and the State shall ensure that a Minister of the Crown introduces and sponsors a bill in the Parliament which, if passed by Parliament, would satisfy the condition referred to in clause 2.1(a).
2.3 Incorporation of Subsidiary of GEB
The State shall ensure that a wholly owned subsidiary of the GEB is incorporated prior to Completion (the "GEB Subsidiary" ) and that the GEB transfers to the GEB Subsidiary all its right, title and interest in the Fixed Assets including Land as required by the Direction.
3.1 Consideration
The purpose of this agreement is to provide for the Purchaser to acquire (subject to the limitations contained in this agreement) the benefit and burden of Business from the Completion Date in consideration of the Purchaser paying the Purchase Price to the State and assuming the Liabilities (the "Consideration" ).
3.2 Transfer of the Business, Assets and Liabilities
Subject to Completion (and with effect from the Completion Date)—
(a) all property and rights in the Business and Assets vest in the Purchaser as a going concern free from all encumbrances; and
(b) the Liabilities are assumed by the Purchaser,
for the Consideration on and subject to the terms of this agreement.
3.3 Obligations Interdependent
The obligations of the parties in respect of Completion under this agreement and the requirements in respect of transfer of Fixed Assets under the Direction shall be interdependent. All actions at Completion under this agreement and under the Direction shall be deemed to take place simultaneously and no delivery or payment will be deemed to have been made until all deliveries required to be made at Completion under this agreement and the Direction have been made.
3.4 This Agreement is not a Contract for the Sale of Land
The parties acknowledge that this agreement is not a contract for the sale of land.
4.1 Immediately Available Funds
The Purchase Price is to be paid in Australian dollars in Immediately Available Funds.
4.2 Apportionment
The Purchase Price shall be allocated as follows—
(a) Assets Located in Victoria
97.5%
(b) Assets Located in New South Wales
2.5%
4.3 Banker's Guarantee as Deposit
(a) Promptly after executing this agreement, the Purchaser will provide to the State an unconditional irrevocable enforceable banker's guarantee in favour of the State for the amount of $2 500 000 payable on demand by the State, which is in a form and is given by a bank acceptable to the State, and upon which any applicable stamp duty has been paid.
(b) The banker's guarantee shall be security for the performance by the Purchaser of its obligations in relation to Completion and shall be surrendered by the State immediately after the Purchaser has discharged those obligations.
(c) If the Purchaser fails to perform any obligation in relation to Completion, the State may give the Purchaser a notice requiring that the matter be remedied within seven Business Days.
(d) If a notice is given by the State under clause 4.3(c) and the matter is not remedied (or, if the matter is incapable of remedy, agreement has not been reached as to adequate monetary compensation) by the expiration of the period specified in the notice, the State may by further notice terminate this agreement, and—
(i) the State will be entitled to call on and apply for its own benefit the full amount of the banker's guarantee; and
(ii) without prejudice to any rights that have already accrued (including any right to claim for damages), each party will be released from any further obligations arising by virtue of this agreement.
(e) Until the conditions set out in clause 2.1 are satisfied, the State shall have no right to call on the banker's guarantee and if those conditions are not satisfied by 29 June 1995, the State shall return the banker's guarantee to the Purchaser.
4.4 Adjustment of Purchase Price for Completion Date
The Purchase Price shall be determined according to the date elected by the State under clause 5.1 to be the Completion Date, as follows—
(a) if Completion is notified by the State to be 30 June 1995 the Purchase Price is $51 000 000;
(b) if Completion is notified by the State to be a day after 30 June 1995 but no later than 31 July 1995 the Purchase Price is $50 000 000;
(c) if Completion is notified by the State to be a day after 31 July 1995 but no later than 31 August 1995 the Purchase Price is $52 000 000;
(d) if Completion is notified by the State to be a day after 31 August 1995 but no later than 30 September 1995 the Purchase Price is $54 000 000; and
(e) if Completion is notified by the State to be a day after 30 September 1995 but no later than 31 October 1995 the Purchase Price is $56 000 000.
In determining the Purchase Price under this clause, if a notice is given under clause 4.3(c) and Completion subsequently occurs, Completion will be deemed to have occurred on the day of that notice.
4.5 Adjustment of Purchase Price for Current Assets and Liabilities
The Purchase Price shall be reduced by the net amount of Forecast Net Liabilities shown in Schedule 3 as at the Completion Date, or such other amount as agreed by the parties as representing that forecast. If the parties cannot agree the amount of Forecast Net Liabilities then the reduction in the Purchase Price under this clause shall be the amount shown as the Forecast Net Liabilities for 30 June 1995 in Schedule 3.
4.6 Adjustment of Purchase Price for Portland Land
(a) In this clause, "Portland Land" means the land described in the leases which are described in Schedule 2 of the Direction and bear the references LS25 to LS31 inclusive.
(b) If the State procures the sale of the Portland Land to the Purchaser then the price shall be $3 000 000.
(c) Neither party is under any obligation to proceed with the sale and purchase of the Portland Land under this clause.
5.1 Time for Completion
(a) The State may elect by notice in writing to the Purchaser given before 30 June 1995 and at least 7 days prior to the elected date, that Completion will occur on a day between or on 30 June 1995 and 31 October 1995 and if such an election is made, "Completion Date" under this agreement shall mean that day. If no election is made, Completion shall occur on 30 June 1995.
(b) Subject to clause 2, Completion shall take place at 12.00 midday on the Completion Date at the offices of Blake Dawson Waldron, Level 37, 101 Collins Street, Melbourne.
5.2 Payment
The Purchaser shall at Completion—
(a) pay to the State the amount of the Purchase Price; and
(b) assume liability for and indemnify and hold the GEB and the State harmless from and against the Liabilities.
5.3 Control
Upon Completion, the State shall, and shall procure that the GEB shall—
(a) deliver up operating control of the Business and the Assets to the Purchaser;
(b) deliver (or where the GEB or the State is legally required to retain them, make available) to the Purchaser (to the extent not already done so) all books of account, files and correspondence, reports, records and other financial and business data and papers relating to the Business and the Assets (including documents of title relating to the Assets, executed copies of leases, executed copies of the Contracts and board and committee minutes and papers);
(c) deliver or make available to the Purchaser (to the extent not already done so) all customer lists relating to the Business;
(d) deliver to or at the direction of the Purchaser all Assets, including the certificates for the Shares, which are capable of transfer by delivery at the places within Australia at which they are usually located in the normal course of operations of the Business;
(e) deliver to or at the direction of the Purchaser instruments of transfer of the Shares which have been duly executed in blank by the transferor and are in registrable form;
(f) execute and deliver to the Purchaser the documents necessary to give effect to the Direction including all necessary Transfers of Land, consents, orders, assignments of leases and licences, in registrable form where necessary;
(g) execute and deliver to the Purchaser all documents, deeds and instruments in registrable form where applicable and do all things which may be necessary to novate Plant and Equipment leases to the Purchaser or otherwise to give effect to this agreement to vest in the Purchaser absolute legal title to and beneficial interest in the Assets as at Completion;
(h) deliver to the Purchaser all certificates and instruments evidencing that the benefit of all and any licences, permits or registrations necessary for the conduct of the Business are vested in the Purchaser pursuant to this agreement (other than those licences, permits or registrations which are available to the Purchaser from the appropriate authorities), including any documents held by the GEB relevant to the re-issue of any such licences, permits and registrations to the Purchaser; and
(i) deliver all securities and guarantees held from Customers.
6.1 Working Capital Adjustment
(a) In this clause—
(i) "Adjustment Amount" means the difference between the Net Amount at Completion and the Net Amount at Adjustment;
(ii) "Adjustment Date" means the day which is 90 days after the Completion Date;
(iii) "Projected Net Amount at Completion" means the total amount shown in the Projected Schedule at the Completion Date;
(iv) "Actual Net Amount at Completion" means the actual audited amount which is the difference between the value of the Assets and Liabilities shown in the Projected Schedule as at the Completion Date, calculated on the Adjustment Date under paragraph (b) of this clause;
(b) The parties shall arrange that an auditor appointed by the State shall calculate the Actual Net Amount at Completion and the Adjustment Amount on the Adjustment Date.
(c) If the Adjustment Amount represents an amount by which the Actual Net Amount at Completion is a lesser liability than the Projected Net Amount at Completion, then the Purchaser shall pay the Adjustment Amount to the State within 5 Business days after the Adjustment Date.
(d) If the Adjustment Amount represents an amount by which the Projected Net Amount at Completion is a greater liability than the Actual Net Amount at Completion, then the State shall pay the Adjustment Amount to the Purchaser within 5 Business days after the Adjustment Day.
6.2 Depreciation Adjustment
(a) If, in respect of depreciation of the Fixed Assets—
(i) the Purchaser or an entity related to the Purchaser is allowed a deduction from its assessable income for the year of income immediately following Completion which is based on a cost base of the book written down value of the Fixed Assets; or
(ii) the Purchaser or an entity related to the Purchaser obtains a ruling or determination from the Australian Taxation Office that a deduction will be allowed which is based on a cost base of the book written down value of the Fixed Assets,
the Purchaser shall pay $5 000 000 to the State.
(b) The Purchaser shall or shall procure an entity related to the Purchaser to either—
(i) within two years of the Completion Date, apply to the Australian Taxation Office for a ruling that the cost base of the Fixed Assets for the purpose of calculation of depreciation for taxation purposes is the book written down value of those Fixed Assets; or
(ii) claim a deduction for depreciation of the Fixed Assets calculated on the basis that the cost base of those assets is their book written down value for the purposes of any taxation return for the year of income immediately following Completion.
(c) The Purchaser shall, or shall procure an entity related to the Purchaser to—
(i) give notice to the State within 7 days of it being notified of an allowance or disallowance of a claim or a ruling or refusal to make a ruling in respect of depreciation of the Fixed Assets; and
(ii) if required by the State, at the State's expense, no later than 14 days before the last day for lodging an objection, lodge a written objection with the Commissioner of Taxation containing such grounds as the State shall reasonably require.
(d) If such objection is disallowed in whole or in part, the State shall be entitled to elect by notice in writing whether or not the objection should be further pursued at the expense of the State. If the State elects to pursue the objection, it shall be entitled to conduct such proceedings in the name of the Purchaser or entity related to the Purchaser and to compromise the matter on such terms as the State determines.
(e) The Purchaser shall pay any amount required to be paid under paragraph (a) to the State within 14 days after the claim or deduction is ultimately determined.
Property in, title to and risk of the Business and the Assets as at the Completion Date shall vest in the Purchaser on the Completion Date.
Any securities or guarantees held from Customers and capable of being exercised only by the State or the GEB may be exercised or enforced by the Purchaser at its expense in the name of the GEB or the State as and from the Completion Date, and the State shall do all things reasonably required, and shall ensure that the GEB will do all things reasonably required, to enable the Purchaser to do this.
The State shall procure that, upon Completion the GEB gives to each trade debtor notice of the assignment of the debt to the Purchaser under this agreement.
10.1 Vesting
Subject to Completion and without prejudice to the rights of the parties under clause 10.3, with effect from the Completion Date all the right title and interest of the State and the GEB in or arising out of the Contracts are vested in the Purchaser including all monies payable, whether already payable or payable in the future and whether or not contingently payable.
10.2 Purchaser's Assumption of Obligations under Contracts
Subject to clause 10.3, on the Completion Date, the Purchaser shall assume all and any of the obligations of the GEB and the State under the Contracts and the Purchaser shall indemnify and hold the GEB and the State harmless against—
(a) all liabilities, losses, damages, costs or expenses incurred or suffered by the GEB and/or the State under any such Contract; and
(b) all actions, proceedings, claims or demands made against the GEB and/or the State under any such Contract.
10.3 Payments in Respect of Prior Years' Harvests
Where, under any Contract with respect to Grain received by the GEB before Completion—
(a) there arises an obligation to pay an amount in respect of out-turn performance under the Contract, the Purchaser and the State shall each be liable to pay half that amount; and
(b) there arises a right to receive an amount in respect of out-turn performance under the Contract, the Purchaser and the State shall each be entitled to receive half that amount
and the Purchaser shall within 7 days of receipt or payment of such amount or of ascertainment of any such obligation or right, claim from the State, or account to the State for, as the case requires, the amount received from or due to the State as the case may be.
On or before Completion, the State shall, and shall procure that the GEB shall execute and deliver to the Purchaser all documents, deeds and instruments and do all things which may be necessary to vest the benefit of the Plant and Equipment Leases in the Purchaser as from Completion.
The State shall ensure that, prior to the Completion Date, the GEB, complies with the Direction in relation to the transfer of Land to the GEB Subsidiary.
The shipping gallery and loader facility used by the Business at the Port of Geelong Grain Terminal and the rights of the GEB under section 13 of the Act to enter upon the pier at the Port of Portland and to erect, maintain and operate appurtenances and appliances are Assets subject to this agreement and the State shall ensure that those rights survive the repeal of the Act.
14.1 Authority
The State warrants that—
(a) it has full power and authority to enter into, execute and complete the transactions contemplated by this agreement;
(b) this agreement has been duly authorised, executed and delivered by the State and is a valid and legally binding obligation of the State enforceable against it in accordance with its terms subject to general equity principles; and
(c) no other acts on the part of the State are necessary to authorise the execution and delivery of the agreement by it and the completion of the transactions contemplated on its part.
14.2 Warranties
The State warrants that at Completion each of the statements set out below is accurate and not misleading—
(a) the Direction has been fully complied with, or arrangements have been made to comply with it, in all material respects;
(b) the Assets are not subject to any mortgage, pledge, charge or lien;
(c) the State has sufficient authority to enter this agreement and to ensure that the Assets are transferred to the Purchaser;
(d) the written information given by or on behalf of the State to the Purchaser, in respect of the GEB's assets and business is accurate and not misleading in the context in which it was given;
(e) the GEB—
(i) complies with all laws and regulations relating to human health and safety applicable to the Business and is not aware of any notice, order, prosecution, action or suit taken or likely to be taken against it pursuant to any such laws or regulations, except as disclosed to the Purchaser;
(ii) has obtained and maintained all permits, orders or approvals required by the Business under those laws and regulations; and
(iii) nothing is likely to prejudice the continuance of such permits, orders or approvals;
(f) the Assets are substantially in the same condition (fair wear and tear excepted) as the Assets were when inspected by the Purchaser, as part of its due diligence investigations;
(g) no guarantee has been given by the GEB except as disclosed in writing prior to the date of this agreement;
(h) except where previously advised to the Purchaser by the State or the GEB, all material contracts entered in to by the GEB have been disclosed to the Purchaser in writing prior to the date of this agreement;
(i) the GEB is not involved in any material litigation or arbitration proceedings and no such litigation or arbitration has been compromised except as disclosed to the Purchaser in writing prior to the date of this agreement on the basis that litigation and arbitration is material if it involves a claim or claims totalling more than $100 000 which was made during the 5 years prior to the date of this agreement;
(j) the accounts of the GEB for the period ended 30 September 1994 ("1994 accounts") present fairly the financial position and assets and liabilities of the GEB and its business at the date of those accounts;
(k) since the date of the 1994 accounts—
(i) the business of the GEB has been carried out in the ordinary course of business;
(ii) no substantial asset of the GEB has been disposed of or acquired or become subject to any option except in the ordinary course of business;
(iii) no liability has been incurred except in the ordinary course of business; and
(iv) there have been no brand names, copyright, franchises, intellectual property, licences, patents or trademarks created, acquired or revalued in respect of the GEB's business; and
(l) to the best of the State's knowledge and belief no contract to which the GEB is a party is liable to be rescinded or terminated by any other party by reason of a breach or default by the GEB, or by reason of this agreement;
(m) to the best of the State's knowledge and belief each contract to which the GEB is a party is binding on each party, valid and, subject to the discretions applying in respect of equitable remedies, enforceable according to its terms;
(n) other than those disclosed to the Purchaser in writing prior to the date of this agreement, the GEB is not a party to any agreement with a union or with its employees (and no such agreement or award applies to the GEB) and the GEB has complied with its obligations under all such agreements or awards;
(o) other than as disclosed to the Purchaser in writing prior to the date of this agreement, the GEB has not entered into any contract of employment with any Employee and except as provided in an applicable award or contract has not entered into any agreement or arrangement for payment to an Employee of a retirement, severance or redundancy allowance or benefit;
(p) the GEB Subsidiary has not (other than for the purpose of the Direction)—
(i) given any mortgage, charge or pledge or created any encumbrance over its assets;
(ii) issued any security (within the meaning of "securities" as defined in Section 92 of the Corporations Law); or
(iii) entered into any contract, incurred any debt or fine or assumed any liability or obligation apart from any obligation pursuant to the Direction other than in the ordinary course of business; and
(q) the assets of the GEB Subsidiary are substantially in the same condition (fair wear and tear excepted) as when inspected by the Purchaser, as part of its due diligence investigations.
14.3 Exclusion of Liability
To the extent permitted by law, all other warranties in respect of the Business, the Assets, the Liabilities and the entitlements of the Employees are expressly excluded.
14.4 Indemnities
(a) Notwithstanding anything elsewhere contained in this agreement, the State indemnifies the Purchaser in respect of every cause of action or liability to a third party arising from any act done or omitted to be done on or before the Completion Date by the GEB or any of its agents or employees and in respect of any loss, damage, liability or payment (legally required to be made), which the Purchaser suffers, incurs or is liable for as a result of such an act or omission.
(b) Where any action or claim is instituted against the Purchaser to which paragraph (a) may apply—
(i) the Purchaser shall notify the State of the action or claim and all the relevant details and that a claim for indemnity is likely to be made by the Purchaser under paragraph (a) of this clause;
(ii) the Purchaser must not agree to arbitrate, settle or compromise the claim without the consent of the State;
(iii) any defence or action will be conducted in the name of the Purchaser but according to the directions of the State having regard to the ongoing business relationships of the Purchaser; and
(iv) the Purchaser shall render such assistance to the State as it may reasonably require in connection with such defence, including providing witnesses, documentary and other evidence and affording the State reasonable access to all relevant books, records and files.
15.1 Own Judgment
The Purchaser relies on its own—
(a) judgement and evaluation of the information and data supplied by or on behalf of the State and the GEB including, without limitation, discussions with officers, employees and agents of the State and the GEB conducted at the Purchaser's discretion; and
(b) inspection and appraisal of the Fixed Assets, Assets and Liabilities, including contractual and other rights.
15.2 Representations and Statements
The Purchaser does not rely upon any—
(a) conduct of; or
(b) statements, warranties or representations (other than those specified in this agreement) made to the Purchaser or to any other person by,
the State or the GEB or any person acting on behalf of the State or the GEB including any officer, director, employee, agent or adviser of any of them.
15.3 Acknowledgment
The Purchaser acknowledges that—
(a) it has had the opportunity to—
(i) examine the information and data supplied by or on behalf of the State and the GEB;
(ii) seek such independent advice as it considers necessary and make enquires of the State, the GEB and other persons; and
(iii) access information with respect to those matters in connection with its purchase of the Assets and assumption of the Liabilities;
(b) it is capable of evaluating the merits and risks associated with the purchase of the Assets and the assumption of the Liabilities;
(c) to the extent that—
(i) the Purchaser has failed to make an inquiry of the State or the GEB as part of the Purchaser's due diligence about a matter material to its purchase of the Assets and assumption of the Liabilities; or
(ii) there is a fault or defect with any of the Assets, the cost of rectification of which, taken individually or together with the cost of rectifying any other fault or defect, involves the expenditure of less than $100 000,
the Purchaser foregoes its right to claim damages under the warranties given in clauses 14.1 and 14.2 in relation to such matter;
(d) none of—
(i) the State or the GEB; and
(ii) any person acting on behalf of the State or the GEB including any officer, director, employee, agent or adviser of any of them,
has given any representation or warranty as to the future prospects of the Business; and
(e) no person other than the State has authorised or caused the issue of any invitation or offer in respect of the subject matter of this agreement.
The Purchaser, the ABB, Victorian Grain Services and GrainCorp each warrant that—
(a) it has full power and authority to enter into, execute and complete the transactions contemplated by this agreement;
(b) the execution of this agreement has been duly authorised by all necessary corporate action on its behalf;
(c) it is satisfied that the Purchaser or the GEB Subsidiary has all necessary licences, consents, authorisations and permits required for the ownership and operation of the Business;
(d) it has completed its due diligence to its satisfaction;
(e) it is satisfied that the Assets and the Liabilities are all the assets and liabilities that the Purchaser and the GEB Subsidiary is acquiring and that the Assets are sufficient for the Purchaser and the GEB Subsidiary to properly operate the Business; and
(f) except as disclosed to the State and the GEB in writing, the Purchaser has not entered into an agreement, arrangement or understanding with any person in respect of—
(i) the management or operation of the Business; or
(ii) the Purchaser's acquisition of the Assets including, without limitation, the provision of finance to the Purchaser.
(a) The Purchaser and Victorian Grain Services shall ensure that all Growers are progressively given an equitable opportunity to acquire an interest in Victorian Grain Services and that by 1 January 2001 all Growers will have been given such opportunity to acquire the entire ownership of Victorian Grain Services.
(b) The ABB, Victorian Grain Services, GrainCorp and the Purchaser shall ensure that the issued capital of the Purchaser is initially owned as follows—
ABB not less than 10%
GrainCorp not less than 20%
Victorian Grain Services not less than 65%,
and that such proportions of ownership are maintained for at least 2 years.
The Purchaser, the ABB, Victorian Grain Services and GrainCorp each agrees that it shall not, and shall ensure that its employees, agents and assigns shall not use the name "Grain Elevators Board" in connection with any of the Assets or the Business in any way whatsoever after Completion.
19.1 Offers by Purchaser
The Purchaser shall offer employment as from the day following the Completion Date to each of the Employees on terms comparable to those upon which the Employees are employed by the GEB including, where an Employee is a member of a Scheme, terms which have regard to the benefits available to the Employee under that Scheme.
19.2 Release from Employment
The State shall ensure that the GEB shall unconditionally release from its services Employees who wish to accept the Purchaser's offer of employment and shall use its best endeavours to ensure that each of the Employees accepts the offers as made.
19.3 Entitlements
The Purchaser undertakes to honour all Employee Entitlements (whether accrued or accruing) existing on the Completion Date of each Transferring Employee including, without limiting the generality of this clause, entitlements to long service leave, sick leave, maternity leave and recreation leave.
19.4 Conditions of Employment
On and from the day following the Completion Date, the Purchaser is responsible for and must comply with all Awards relating to Transferring Employees and employment award conditions, as varied in accordance with their terms, including (without limitation) conditions relating to redundancy and termination of employment, of each Transferring Employee.
19.5 Non-accepting Employees
The Purchaser indemnifies and holds the State and the GEB harmless against any payments paid to an Employee to whom no offer of comparable employment with the Purchaser was made or to whom an offer of employment was made but not accepted, in accordance with the provisions of this agreement.
19.6 Indemnity
The Purchaser indemnifies and holds the State and the GEB harmless against all expenses, losses, damages and costs that the State and the GEB may sustain or incur as a result of, whether directly or indirectly, any claim by a Transferring Employee in relation to payment or non-payment of salary, holiday pay and long service leave to such employees which accrue on and after the day following the Completion Date.
20.1 Definitions
In this clause—
(a) "Three Month Date" means the day which is three months after the Completion Date;
(b) "Estimated Superannuation Provision" means the amount calculated under clause 20.7(a) in relation to each Scheme;
(c) "Actual Superannuation Provision" means the amount calculated under clause 20.8(a)(i) on the Three Month Date in relation to each Scheme; and
(d) "Adjustment Amount" means the amount calculated under clause 20.8(a)(ii).
20.2 The Purchaser to Provide Superannuation Benefits
The Purchaser shall be responsible for the provision of superannuation benefits for Employees and shall comply with the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Industry (Supervision) Act 1993 after the Completion Date.
20.3 Establishment or Identification of Purchaser's Fund
Before the Completion Date, the Purchaser shall establish or identify one or more superannuation funds—
(a) which provide benefits to Employees in association with their employment by the Purchaser to a level at least sufficient to avoid liability for a superannuation guarantee charge under the Superannuation Guarantee (Administration) Act 1992 ;
(b) which are regulated superannuation funds under the Superannuation Industry (Supervision) Act 1993 ; and
(c) which have all necessary approvals and powers to receive transfers of members' benefits from the Schemes.
20.4 Transfer of Members
As and from the Completion Date, the Purchaser shall arrange for all Transferring Employees to be admitted as members of a Purchaser's Fund.
20.5 Election by Members
The Trustees and the GEB shall arrange for Transferring Employees to elect to either—
(a) transfer an amount in respect of their accrued entitlements in the Schemes to a Purchaser's Fund or any other superannuation fund elected by a Transferring Employee which complies with the requirements set out in paragraphs 20.3(a), (b) and (c); or
(b) subject their accrued entitlements to the Superannuation (Portability) Act 1989 .
20.6 Transfer of Benefits
On the Three Month Date, the Purchaser shall arrange for an amount representing the entitlements of each Transferring Member in the Schemes at the Completion Date, to be accepted by the Trustee of a Purchaser's Fund or any other fund elected by the Transferring Member which complies with the requirements in paragraphs 20.3(a), (b) and (c) as a transfer into that fund.
20.7 Calculation and Payment of Superannuation Provision
(a) Before the Completion Date, GEB shall ensure that the actuary of each Scheme estimates by way of actuarial assessment the Superannuation Provision in relation to that Scheme as at the Completion Date, and the GEB shall notify the Purchaser of that amount (the "Estimated Superannuation Provision" ).
(b) The calculation of the Superannuation Provision for each Scheme shall be on an actuarial basis recommended by the actuary of that Scheme and approved by the State.
(c) Before the Completion Date, the GEB shall arrange for the Purchaser to be authorised to pay the Superannuation Provision in respect of each Scheme, to the Trustee of that Scheme.
(d) On the Completion Date, the Purchaser shall pay into a bank account held in the name of the Purchaser, to which a representative of the Purchaser and a representative of the State are joint signatories, the aggregate amount of the Estimated Superannuation Provision in relation to each Scheme.
(e) Within three Business Days of the Completion Date, the Purchaser shall pay 95% of the amount of the Estimated Superannuation Provision calculated for each Scheme under paragraph (b) (and held under paragraph (d)) to the Trustee of that Scheme.
(f) The parties shall ensure that their nominated signatories to the bank account described in paragraph (d) sign withdrawal forms relating to that account for, but only for, the purpose of the payment required under paragraph (e) or under clause 20.8(b).
(g) After the obligations under this clause 20 have been satisfied, paragraph (f) shall no longer apply and the Purchaser shall not be required to maintain a nominee of the State as a signatory to the bank account described in paragraph (d).
20.8 Adjustment for Actual Superannuation Provision
(a) The GEB shall arrange for the actuary of each Scheme to calculate before the Three Month Date—
(i) the Superannuation Provision as at the Completion Date (the "Actual Superannuation Provision" ); and
(ii) the excess of the Actual Superannuation Provision over the amount paid under clause 20.7(e) to the Trustee of each Scheme (the "Adjustment Amount" ),
and shall notify the Purchaser of those amounts.
(b) The Purchaser shall pay to the Trustee of each Scheme the Adjustment Amount and interest on the Adjustment Amount calculated at 10% per annum for the period between the Completion Date and the Three Month Date, for that Scheme.
(c) Any payment required to be made under this clause shall be made within 14 days of the Three Month Date.
The State shall bear and be responsible for the payment of all and any stamp duty payable in Victoria and the Purchaser shall bear and be responsible for stamp duty payable in New South Wales, on or in respect of this agreement or any instrument or transaction contemplated in or necessary to give effect to this agreement or the Direction.
22.1 The Purchaser, ABB, Victorian Grain Services and GrainCorp
The Purchaser, the ABB, Victorian Grain Services and GrainCorp shall not, except as required by law, make or cause to be made any public announcement of, or in relation to, the sale and purchase of the Business or the Assets without the prior written consent of each of the other parties.
22.2 The State
The State may make public announcements of, or in relation to, the sale of the Business and Assets.
23.1 Transfer of Assets
The State will and will ensure that the GEB will, execute all documents and do all things reasonably necessary to facilitate the registration of the Purchaser as the legal owner of the Assets at Completion.
23.2 Facilities on Land Owned by Third Parties
Where the Assets comprise facilities constructed on land which on the Completion Date is owned by a person other than the State or the GEB or the GEB Subsidiary, the State undertakes to execute and to ensure that the GEB or the GEB Subsidiary executes all documents and do all things reasonably necessary to vest those Assets in the Purchaser, together with any ancillary rights in relation to land necessary for the conduct of the Business which are held by the State or the GEB or the GEB Subsidiary, without further payment to the State by the Purchaser.
24.1 Events of Default
In addition to its rights to terminate under clauses 4.3 and 25.3, the State may at its option terminate this agreement by notice in writing to the Purchaser, the ABB, Victorian Grain Services and GrainCorp if—
(a) any litigation is commenced or threatened against the Purchaser, the ABB, Victorian Grain Services or GrainCorp or any judgment order or decree is made by a court or tribunal against any of them which in the State's reasonable opinion is material;
(b) a receiver, receiver and manager, liquidator, administrator or any similar person is appointed to the Purchaser, the ABB, Victorian Grain Services or GrainCorp or any action is taken which has the likely effect of such appointment;
(c) the Purchaser, the ABB, Victorian Grain Services or GrainCorp does any act or thing or omits to do any act or thing which will make it liable to any fine, penalty or prosecution which in the State's reasonable opinion is material;
(d) the Purchaser, the ABB, Victorian Grain Services or GrainCorp does any act or thing or omits to do any act or thing which might adversely affect (in the reasonable opinion of the State) its ability to perform its obligations under this agreement;
(e) any part of the Purchase Price or any payment required to be paid by the Purchaser under clause 6 is not paid when due and payable;
(f) any representation, warranty or statement made by the Purchaser, the ABB, Victorian Grain Services or GrainCorp in connection with this agreement is untrue or misleading (whether by omission or otherwise) in any material respect when made; or
(g) the Purchaser defaults under, breaches any term of, or fails to comply with the Direction.
24.2 Default Interest
Any amount payable to the State under this agreement not paid when due shall bear interest on the amount outstanding from time to time at the same rate as is payable from time to time on a judgment for debt entered in the Supreme Court of Victoria.
24.3 Termination by Purchaser
The Purchaser may at its option terminate this agreement by notice in writing to the State if—
(a) the State does any act or thing or omits to do any act or thing which might adversely affect (in the reasonable opinion of the Purchaser) the ability of the State to perform its obligations under this agreement;
(b) any representation, warranty or statement made by the State in connection with this agreement is untrue or misleading (whether by omission or otherwise) in any material respect when made; or
(c) the State defaults under or breaches any term of the Direction.
25.1 Banker's Guarantee to secure Purchaser's Performance
The Purchaser shall at Completion provide to the State an unconditional irrevocable enforceable banker's guarantee in favour of the State for the amount of $2 500 000 payable on demand by the State, which is in a form and is given by a bank acceptable to the State, and upon which any applicable stamp duty has been paid.
25.2 Guarantee
The banker's guarantee shall be security for the due and punctual payment of any amount required to be paid by the Purchaser under clauses 6, 10.3 and 20.8 of this agreement.
25.3 Default in Performance
(a) If the Purchaser fails to perform any of the payment obligations described in clause 25.2, the State may give the Purchaser a notice requiring that the matter be remedied within seven Business Days.
(b) If a notice is given by the State under paragraph (a) and the matter is not remedied (or, if the matter is incapable of remedy, agreement has not been reached as to adequate monetary compensation) by the expiration of the period specified in the notice, the State may by further notice terminate this agreement in relation to that obligation, whereupon—
(i) the State will be entitled to call on and apply for its own benefit up to the full amount of the banker's guarantee provided under this clause; and
(ii) without prejudice to any rights that have already accrued (including any right to claim for damages), each party will be released from any further obligations arising by virtue of this agreement in relation to the relevant obligation.
26.1 No assignment
ABB, Victorian Grain Services, GrainCorp or the Purchaser may not assign any of their rights or obligations under this agreement except with the prior written consent of the State, which may be withheld at its absolute discretion.
Each party bears its own legal, accounting and other advisory costs and expenses in relation to the preparation, execution and implementation of this agreement.
28.1 Method of Giving Notices
A notice, consent, approval or other communication (each a "Notice" ) under this agreement shall be signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and—
(a) delivered to that person's address;
(b) sent by pre-paid mail to that person's address; or
(c) transmitted by facsimile to that person's address.
28.2 Time of Receipt
A Notice given to a person in accordance with this clause is treated as having been given and received—
(a) if delivered to a person's address, on the day of delivery if a Business Day, otherwise on the next Business Day;
(b) if sent by pre-paid mail, on the third Business Day after posting; or
(c) if transmitted by facsimile to a person's address and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day.
28.3 Addresses for Notices
For the purpose of this clause the address of a person is the address set out below or another address of which that person may from time to time give Notice to each other person—
State:
Attention: The Secretary
Department of the
Treasury and Finance
Address: Level 7
55 Collins Street
MELBOURNE VIC 3000
Facsimile: (03) 9654 6861
Purchaser:
Attention: The Executive Director,
Grains Group
Victorian Farmers Federation
Address: Level 3
Farrer House
24–28 Collins Street
MELBOURNE VIC 3000
Facsimile: (03) 9207 5539
GrainCorp:
Attention: Mr Tom Keene
Address: Level 10
51 Druitt Street
SYDNEY NSW 2000
Facsimile: (02) 9325 9180
ABB:
Attention: Mr Michael Iwaniw
Address: 123–130 South Terrace
ADELAIDE SA
5000
Facsimile: (08) 8321 1249
Victorian Grain Services:
Attention: The Executive Director,
Grains Group
Victorian Farmers Federation
Address: Level 3
Farrer House
24–28 Collins Street
MELBOURNE VIC 3000
Facsimile: (03) 9207 5539
The State shall ensure that the GEB shall continue in existence with undiminished power for as long as is necessary for it to perform its obligations under this agreement for a period of up to 12 months after the Completion Date.
30.1 No Merger
Any rights and obligations of the parties under this agreement which are expressed to operate or may have effect upon or after Completion or have not been fulfilled in whole or in part by Completion, as the case may be, (including the representations, warranties and indemnities made and given pursuant to this agreement) shall not merge on Completion, but shall remain in full force and effect.
30.2 Time of the Essence
Time shall be of the essence of this agreement.
30.3 Waiver
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing signed by the party to be bound by the waiver.
30.4 Amendment
The parties may from time to time by agreement in writing vary any provision of this agreement and—
(a) a Minister of the Crown must cause a copy of that agreement to be laid before each House of Parliament within 6 sitting days of the House following the making of that agreement;
(b) that agreement comes into operation on the expiration of 6 sitting days after a copy of that agreement has been laid before each House of Parliament unless revoked in whole or in part by either House of Parliament;
(c) paragraphs (a) and (b) shall not apply to the giving of a waiver, a failure of a party to require full or part performance of an obligation or the granting of or agreement to an extension of time under this agreement.
30.5 Attorneys
Each attorney who executes this agreement on behalf of a party declares that the attorney has no notice of the revocation or suspension of the power of attorney under the authority of which the attorney executes this agreement.
30.6 Severability
Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
30.7 Counterparts
This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.
30.8 Further Assurance
Each party shall do, sign, execute and deliver and shall procure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this agreement and the rights and obligations of the parties under it.
30.9 Entire Agreement
This Agreement is the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in this agreement. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this agreement.
31.1 Governing Law
This Agreement is governed by the law in force in Victoria.
31.2 Submission to Jurisdiction
The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement.
EXECUTED as an agreement.
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Signed for and on behalf of THE STATE OF VICTORIA by the Honourable Alan Stockdale, MP, Treasurer in the presence of: |
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Peter Coatman | |
Alan R. Stockdale |
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Witness: | | |
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THE COMMON SEAL of VICGRAIN OPERATIONS LIMITED was affixed in the presence of, and the sealing is attested by: |
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Peter Alleyne Cook | |
Allan Donald McCallum |
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Secretary | |
Director |
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THE COMMON SEAL of VICTORIAN GRAIN SERVICES LIMITED was affixed in the presence of, and the sealing is attested by: |
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Peter Alleyne Cook | |
Allan Donald McCallum |
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Secretary | |
Director |
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THE COMMON SEAL of GRAINCORP OPERATIONS LIMITED was affixed in the presence of, and the sealing is attested by: |
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Ron O'Meara | |
David Groves |
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Secretary | |
Director |
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THE COMMON SEAL of AUSTRALIAN BARLEY BOARD was affixed in the presence of, and the sealing is attested by: |
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B. D. Banbury | |
K. Dingwall |
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Secretary | |
Director |
SCHEDULE 1
ASSETS
All leases of photocopiers or other equipment used by the Business to which the GEB is a party.
All issued Shares in the GEB Subsidiary.
Current assets comprising:
• Cash at bank and on hand
• Investments
• Debtors and Accrued Revenue
• Term Deposits
• Stores
as defined in the Balance Sheet and Notes of the GEB in its 1994 Annual Report.
All the right, title and interest of the GEB in Contracts.
All other rights and assets connected with the Business, including:
• rights under warranties relating to equipment;
• goodwill;
• intellectual property rights;
and excluding—
• any
rights arising out of the Act, other than those expressly referred to in this
agreement.