<PAGE>
EXHIBIT 2.2
SHARE PURCHASE AGREEMENT
among
RAG COAL INTERNATIONAL AG
PEABODY ENERGY CORPORATION
and
PEABODY ENERGY AUSTRALIA PTY LIMITED
dated as of
February 29, 2004
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE I
DEFINITIONS...........................................................................................
1
1.1 Certain
Defined
Terms.........................................................................
1
1.2 Other
Interpretive
Provisions.................................................................
13
ARTICLE II PURCHASE AND
SALE....................................................................................
13
2.1 Purchase
and Sale of the
Shares...............................................................
13
2.2
Consideration; Estimated Purchase Price
Adjustment............................................ 13
2.3 The
Closing...................................................................................
14
2.4 Deliveries at
the
Closing.....................................................................
14
2.5 Closing
Board
Meeting.........................................................................
15
2.6 Period
after
Closing..........................................................................
16
2.7 Closing
Payment
Adjustment....................................................................
16
2.8 Payments
On or Before
Closing.................................................................
18
2.9 Form of
Payments..............................................................................
18
2.10
Allocation of Purchase
Price..................................................................
18
ARTICLE III REPRESENTATIONS AND WARRANTIES
OF
SELLER............................................................
18
3.1
Organization..................................................................................
18
3.2
Authorization;
Enforceability.................................................................
19
3.3 Capital
Stock.................................................................................
19
3.4 Ownership;
No Liabilities of RAG
Trading......................................................
19
3.5
Subsidiaries..................................................................................
20
3.6 Associated
Companies..........................................................................
20
3.7 Joint
Ventures................................................................................
21
3.8 Audited
Financial Statements;
Superannuation..................................................
21
3.9 Absence of
Undisclosed
Liabilities............................................................
21
3.10
No Conflicts or
Approvals.....................................................................
21
3.11
Governmental
Authorization....................................................................
22
3.12
Compliance with Law; Mining Authorities; Occupational Health
and
Safety Laws; Performance
Bonds..........................................................
22
3.13
Proceedings...................................................................................
24
3.14
Absence of Certain
Changes....................................................................
24
3.15
Tax
Matters...................................................................................
25
3.16
Employee
Benefits.............................................................................
28
3.17
Labor and Employee
Relations..................................................................
30
3.18
Intellectual
Property.........................................................................
31
3.19
Contracts.....................................................................................
31
3.20
Environmental
Matters.........................................................................
33
3.21
Insurance.....................................................................................
35
3.22
Personal Property
Assets......................................................................
35
3.23
Real
Property.................................................................................
36
3.24
Records and Constituent
Documents.............................................................
37
</TABLE>
i
<PAGE>
<TABLE>
<S>
<C>
3.25
Intercompany
Accounts.........................................................................
37
3.26
No Brokers' or Other
Fees.....................................................................
38
3.27
Entire Business; Condition of
Assets..........................................................
38
3.28
Solvency......................................................................................
38
3.29
Grants and
Allowances.........................................................................
38
3.30
Illegal
Acts..................................................................................
38
3.31
Offers........................................................................................
38
3.32
Security
Interests............................................................................
38
3.33
Forecasts.....................................................................................
39
3.34
No Other Representations or
Warranties........................................................
39
3.35
Native Title
Matters..........................................................................
39
ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF PEABODY AND
BUYER..................................................
39
4.1
Organization..................................................................................
39
4.2
Authorization;
Enforceability.................................................................
40
4.3 No
Conflicts or
Approvals.....................................................................
40
4.4
Governmental
Authorization....................................................................
40
4.5 No
Brokers' or Other
Fees.....................................................................
40
4.6
Financing.....................................................................................
41
4.7 No Other
Representations or
Warranties........................................................
41
ARTICLE V COVENANTS AND
AGREEMENTS..............................................................................
41
5.1 Conduct of
Business Prior to the
Closing......................................................
41
5.2 Access to
Books, Records and Properties; Reports;
Cooperation................................. 44
5.3 Tax
Matters...................................................................................
45
5.4 Employees;
Benefit
Plans......................................................................
51
5.5 Labor
Matters.................................................................................
51
5.6 Further
Actions...............................................................................
52
5.7 Further
Assurances............................................................................
52
5.8 Closing
Balance
Sheet.........................................................................
52
5.9
Noncompetition; Interference;
Nonsolicitation.................................................
52
5.10
Competing Transaction; Return of Confidential
Information..................................... 54
5.11
Intercompany Accounts; Affiliate
Agreements...................................................
54
5.12
Intercompany
Insurance........................................................................
55
5.13
Name
Changes..................................................................................
55
5.14
Seller Guarantees Provided to the
Company.....................................................
55
5.15
Tax
Consolidation.............................................................................
56
5.16
Confidentiality...............................................................................
56
5.17
Cooperation in
Financing......................................................................
58
5.18
Company Restructuring
Matters.................................................................
58
ARTICLE VI CONDITIONS TO SELLER's
OBLIGATIONS...................................................................
59
6.1
Representations and
Warranties................................................................
59
6.2
Performance...................................................................................
59
6.3 Officer's
Certificates........................................................................
59
6.4
Governmental
Approvals........................................................................
59
</TABLE>
ii
<PAGE>
<TABLE>
<S>
<C>
6.5
Injunctions...................................................................................
59
6.6 Closing
Deliveries............................................................................
59
6.7 Colorado
Transaction..........................................................................
60
ARTICLE VII CONDITIONS TO PEABODY'S AND
BUYER's
OBLIGATIONS.....................................................
60
7.1
Representations and
Warranties................................................................
60
7.2
Performance...................................................................................
60
7.3 Officer's
Certificate.........................................................................
60
7.4
Governmental
Approvals........................................................................
60
7.5 Third
Party
Approvals.........................................................................
60
7.6
Injunctions...................................................................................
60
7.7
Intercompany Accounts; Affiliate
Agreements...................................................
61
7.8 Absence of
Company Material Adverse
Effect....................................................
61
7.9 Closing
Deliveries............................................................................
61
7.10
Company and Subsidiary Board
Meetings.........................................................
61
7.11
North Goonyella
Longwall......................................................................
61
7.12
Colorado
Transaction..........................................................................
61
ARTICLE VIII
TERMINATION........................................................................................
61
8.1
Termination...................................................................................
61
8.2 Procedure
and Effect of
Termination...........................................................
62
ARTICLE IX
INDEMNIFICATION......................................................................................
62
9.1
Indemnification...............................................................................
62
9.2 Specific
Indemnification......................................................................
66
9.3 Treatment
of Indemnification
Payments.........................................................
67
ARTICLE X GOODS & SERVICES
TAX..................................................................................
67
10.1
Imposition of
GST.............................................................................
67
10.2
Payment.......................................................................................
67
10.3
Reimbursements and
Indemnities................................................................
67
10.4
Interpretation................................................................................
67
ARTICLE XI
MISCELLANEOUS........................................................................................
68
11.1
Fees and
Expenses.............................................................................
68
11.2
Governing
Law.................................................................................
68
11.3
Amendment.....................................................................................
68
11.4
Assignment....................................................................................
68
11.5
Waiver........................................................................................
68
11.6
Notices.......................................................................................
69
11.7
Complete
Agreement............................................................................
70
11.8
Counterparts..................................................................................
70
11.9
Publicity.....................................................................................
70
11.10
Headings......................................................................................
70
11.11
Severability..................................................................................
70
11.12
Third
Parties.................................................................................
71
11.13
Consent to Jurisdiction; Waiver of Jury
Trial................................................. 71
11.14
Specific Performance;
Rescission..............................................................
71
</TABLE>
iii
<PAGE>
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT, dated as of February 29, 2004,
between RAG Coal International AG, a
company incorporated under the laws of
Germany ("Seller"), Peabody Energy
Australia Pty Ltd (ACN 096 909 410), a
company incorporated in New South Wales,
Australia ("Buyer"), and Peabody Energy
Corporation, a company incorporated under
the laws of the U.S. State of Delaware
("Peabody").
WHEREAS, Seller owns (i) 1,500 Ordinary Shares (the "Ordinary
Shares") of RAG Australia Coal Pty Limited
(ACN 001 401 663), a company
incorporated in New South Wales, Australia
(the "Company"), and (ii) 65,000,000
Redeemable Preference Shares (the
"Preference Shares" and, together with the
Ordinary Shares, the "Shares") of the
Company;
WHEREAS, Seller desires to sell, and Buyer desires to
purchase, the Shares, upon the terms and
subject to the conditions set forth in
this Agreement; and
WHEREAS, the parties intend for the Company Restructuring (as
defined below) to occur prior to the
Closing.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and
agreements herein contained and
intending to be legally bound hereby, the
parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Certain
Defined Terms. As used in this Agreement, the
following terms shall have the following
meanings:
"AASB" shall mean the Australian Accounting Standards Board.
"Additional Amount" shall have the meaning set forth in
Section 10.1.
"Affiliate" shall mean, with respect to any specified Person,
any other Person that directly, or
indirectly through one or more
intermediaries, controls, is controlled by,
or is under common control with,
such specified Person.
"Affiliate Agreement" shall have the meaning set forth in
Section 3.19 (a)(xiii).
"Agreement" shall mean this Share Purchase Agreement
(including the Schedules), as amended,
modified or supplemented from time to
time.
"Amount Incurred" shall have the meaning set forth in Section
10.3.
"Assessment" includes a notice, statement, letter, account or
other document or an amended or deemed
assessment (including a notice of
adjustment of a loss claimed by a company)
that relates to, requires or imposes
a liability for Tax or deprives, reduces,
grants or increases any credit,
rebate, refund, relief, allowance or
deduction claimed or allowed.
1
<PAGE>
"Associated Company" shall have the meaning set forth in
Section 3.6.
"ATO" shall have the meaning set forth in Section 10.1.
"Audited Balance Sheet" shall have the meaning set forth in
Section 2.7(a).
"Audited Financial Statements" shall have the meaning set
forth in Section 3.8(a).
"Australian Accounting Standards" shall mean in relation to
the Audited Financial Statements:
(i) the
accounting standards required under the
Australian Corporations Act; and
(ii)
if no accounting standard applies under the
Australian Corporations Act in relation to an
accounting practice, the standards acceptable to the
AASB, including; in order of preference:
(a) The
requirements and guidance in other
Accounting Standards or other authoritative
pronouncements of the AASB and/or the
Australia Public Sector Accounting Standards
Board dealing with similar or related
issues.
(b) The
requirements and guidance in UIG
Consensus Views dealing with similar or
related issues.
(c) The
definitions and recognition criteria for
assets, liabilities, equity, revenues and
expenses set out in Statement of Accounting
Concepts SAC 4 "Definition and Recognition
of the Elements of Financial Statements".
(d)
International Accounting Standards and
Interpretations of the Standing
Interpretations Committee of the
International Accounting Standards Committee
(only to the extent that these are
consistent with (a), (b) and (c) of this
paragraph).
(e) The
pronouncements of other national
accounting standard setting bodies and
accepted industry practices (only to the
extent that these are consistent with (a),
(b) and (c) of this paragraph).
"Australian Corporations Act" shall mean the Australian
Corporations Act 2001 (Cth).
"Benefit Period" shall have the meaning set forth in Section
9.1(c).
"Burton Sub" shall have the meaning set forth in Section
3.19(c).
2
<PAGE>
"Business Day" shall mean any day that is not a Saturday, a
Sunday or other day on which banks are
required or authorized by law to be
closed in the City of New York.
"Buyer" shall have the meaning set forth in the first sentence
of this Agreement.
"Buyer Indemnitees" shall have the meaning set forth in
Section 9.1(a).
"Buyer Loan" shall have the meaning set forth in Section
5.18(b)(iii).
"Buyer Representative" shall have the meaning set forth in
Section 5.16(b).
"Capital Expenditure Budget" shall have the meaning set forth
in Section 5.1(a).
"Cash" shall mean the sum of cash, cash equivalents (as
determined under Australian Accounting
Standards) and accounts receivable
arising from loans or advances to
Affiliates.
"Cash Shortfall Amount" shall have the meaning set forth in
Section 5.18(a).
"Closing" shall have the meaning set forth in Section 2.3.
"Closing Balance Sheet" shall have the meaning set forth in
Section 2.7(a).
"Closing Date" shall have the meaning set forth in Section
2.3.
"Closing Payment" shall have the meaning set forth in Section
2.2(a).
"Closing Total Company Adjusted Net Assets Statement" shall
have the meaning set forth in Section
2.7(a).
"Colorado Agreement" shall have the meaning set forth in
Section 6.7.
"Company" shall have the meaning set forth in the recitals to
this Agreement.
"Company Bank Debt" shall have the meaning set forth in
Section 5.18(b)(i).
"Company
Bank Debt Amount" shall have the meaning set forth in
Section 5.18(b)(ii).
"Company Bank Debt Repayment" shall have the meaning set forth
in Section 5.18(b)(iii).
"Company Benefit Plan" shall have the meaning set forth in
Section 3.16(a).
"Company Dividend" shall have the meaning set forth in Section
5.18(a).
"Company Employees" shall have the meaning set forth in
Section 3.16(a).
3
<PAGE>
"Company Material Adverse Effect" shall mean any change,
occurrence or development that has a
material adverse effect on the business,
assets, Liabilities, results of operations
or financial condition of the Company
and its Subsidiaries, taken as a whole, but
shall exclude any effect (i)
resulting from changes in general economic
and political conditions (including,
without limitation, changes in commodity
prices, interest rates, currency
exchange rates, applicable Law and/or
Australian Accounting Standards) that do
not disproportionately affect the Company
and its Subsidiaries or (ii) resulting
from changes affecting companies in the
Australian coal mining industry
generally that do not disproportionately
affect the Company and its
Subsidiaries.
"Company Restructuring" shall have the meaning set forth in
Section 5.18(b)(iii).
"Company Securities" shall have the meaning set forth in
Section 3.3.
"Company Surety Bonds" shall have the meaning set forth in
Section 3.12(e).
"Competing Transaction" shall have the meaning set forth in
Section 5.10(a).
"Competition/Investment Law" shall mean any Law that is
designed or intended to prohibit, restrict
or regulate (a) foreign investment in
Australia or (b) antitrust, monopolization,
restraint of trade or competition in
Australia, including, without limitation,
the Australian Foreign Acquisitions
and Takeovers Act of 1975 (Cth) and the
Australian Trade Practices Act 1974
(Cth).
"Competition Restraint Area" shall mean the greater
geographical area of the following to the
extent permitted by Law: (A)
Australia; (B) New South Wales, Queensland
and Victoria; or (C) a radius of 500
kilometers from any site of current
operation of the business of the Company or
any of its Subsidiaries.
"Competition Restraint Period for Noncompetition/Interference"
shall mean the greater of the following to
the extent permitted by Law: (A) 3
years; (B) 2 years; or (C) 1 year, from the
Closing Date.
"Competition Restraint Period for Nonsolicitation" shall mean
the greater of the following to the extent
permitted by Law: (A) 2 years or (B)
1 year from the Closing Date.
"Confidential Information" shall have the meaning set forth in
Section 5.16(a).
"Confidentiality Agreement" shall mean the confidentiality
agreement between Seller and Peabody, dated
October 10, 2003, as amended by that
certain Amended and Restated Heads of
Agreement, dated December 22, 2003,
between Seller and Peabody.
"Consent" shall mean any consent, approval, authorization,
consultation, waiver, permit, grant,
agreement, license, certificate, exemption,
order, registration, declaration, filing or
notice of, with or to any Person, in
each case required to permit the
consummation of any of the transactions
contemplated hereby.
4
<PAGE>
"control" (including the terms "controlled by" and "under
common control with"), with respect to the
relationship between or among two or
more Persons, shall mean the possession,
directly or indirectly, of the power to
direct or cause the direction of the
affairs or management of a Person, whether
through the ownership of voting securities,
by contract or otherwise, including
the ownership, directly or indirectly, of
securities having the power to elect a
majority of the board of directors or
similar body governing the affairs of such
Person.
"Debt" shall, as applied to any Person, mean, without
duplication:
(a) all indebtedness for borrowed money, including, without
limitation, all obligations evidenced by a
note, bond, debenture, letter of
credit, draft or similar instrument;
(b) that portion of obligations with respect to capital leases
that is properly classified as a Liability
on a balance sheet in conformity with
Australian Accounting Standards;
(c) Liabilities for interest rate swaps; and
(d) all indebtedness and obligations of the types described in
the foregoing clauses (a) through (c) to
the extent secured by any Encumbrance,
other than Permitted Encumbrances, on any
property or asset owned or held by
that Person, regardless of whether the
indebtedness secured thereby shall have
been incurred or assumed by that Person or
is otherwise nonrecourse to the
credit of that Person.
"Duty" shall mean any stamp, transaction or registration duty
or similar charge imposed by any
Governmental Authority 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
calculated by reference to any
income, profits, gains or other similar
measure.
"Encumbrance" shall mean any security interest, pledge,
mortgage, lien, charge, option to purchase
or lease or otherwise acquire any
interest, conditional sales agreement,
claim, restriction, covenant, easement,
right of way, title defect, retention of
title, adverse claim of ownership or
use, interest created under any bill of
sale, trust or power or other
encumbrance of any kind.
"Environmental Claim" shall mean any notice or Proceeding by
any Person alleging Liability or potential
Liability (including Liability or
potential Liability for investigatory
costs, cleanup costs, governmental
response costs, natural resource damages,
fines or penalties) relating to any
Environmental Losses or in respect of any
Environmental Laws.
"Environmental Law" shall mean any applicable Law relating to
remediation, restoration or protection of
the environment, contamination of the
environment or other environmental matters
including licensing of activities
that harm the environment, including such
Laws relating to storage, treatment,
management, generation, transportation,
land use, development, pollution, waste
disposal, toxic materials, conservation of
natural resources and resource
allocation (including any Law relating to
development or exploitation of any
natural resource) or use or disposal of
Hazardous Materials, including
applicable Governmental Approvals pursuant
to Environmental Laws; provided,
however, Environmental Law shall not
include any Law concerning cultural
heritage or Native Title matters.
5
<PAGE>
"Environmental Losses" shall mean Losses arising from a
Release of Hazardous Materials or
noncompliance with or Liability under any
Environmental Law or noncompliance with any
Environmental Permits.
"Environmental Permits" shall mean any consent, approval,
authorization, permit, license, certificate
or exemption which any Environmental
Law requires any of the Company, its
Subsidiaries or the Associated Companies to
hold in order to develop and operate their
assets and conduct their business,
other than any Permit concerning cultural
heritage or Native Title matters.
"Estimated Closing Total Company Adjusted Net Assets" shall
have the meaning set forth in Section
2.2(b).
"Estimated Closing Total Company Adjusted Net Assets
Statement" shall have the meaning set forth
in Section 2.2(b).
"Expert" shall mean a person with over ten years experience in
Tax agreed by Buyer, Seller and Peabody, or
if they do not agree on the person
to be appointed within 5 days of one party
requesting appointment, a person with
the same expertise appointed by the
President of the Australian Institute of
Chartered Accountants at the request of
Buyer, Seller and Peabody.
"Final Closing Balance Sheet" shall have the meaning set forth
in Section 2.7(c).
"Final Closing Total Company Adjusted Net Assets Statement"
shall have the meaning set forth in Section
2.7(c).
"FIRB Approval" shall mean: (A) Buyer receives written advice
from or on behalf of the Treasurer of the
Commonwealth of Australia stating or
to the effect that the Commonwealth
Government of Australia does not object to
Buyer and Seller entering into and
completing the transactions the subject of
this Agreement, being advice that is either
unconditional or does not include a
condition that the Buyer, acting
reasonably, considers unacceptable; or (B) the
Treasurer of the Commonwealth of Australia
becomes precluded from making an
order in respect of the acquisition of the
Shares under the Australian Foreign
Acquisitions and Takeovers Act 1975
(Cth).
"Governmental Approval" shall mean any Consent of, with or to
any Governmental Authority, including,
without limitation, FIRB Approval.
"Governmental Authority" shall mean any Australian or other
federal, state, provincial or local
government or other political subdivision
thereof, any entity, authority, industrial
relations commission, tribunal,
agency or body exercising executive,
legislative, judicial, regulatory, fiscal
or administrative functions of any such
government or political subdivision, and
any supranational organization of sovereign
states exercising such functions for
such sovereign states.
"Governmental Order" shall mean, with respect to any Person,
any judgment, order, writ, injunction,
decree, stipulation, agreement,
determination or award entered or issued by
or with any Governmental Authority
and binding on such Person.
6
<PAGE>
"GST" has the same meaning as in the A New Tax System (Goods
&
Services Tax) Act 1999 (Cth).
"Hazardous Materials" shall mean any substance or preparation
defined as a "contaminant", "hazardous
contaminant", "hazardous substance,"
"toxic substance," "hazardous waste,"
"dangerous preparation" or "dangerous
substance" or any other term of similar
import under any Environmental Law as in
effect as of the date of the Closing or any
other materials which are regulated
or give rise to liability under
Environmental Laws as in effect as of the date
of the Closing, including petroleum
(including crude oil or any fraction
thereof), asbestos and asbestos-containing
materials, radiation and radioactive
materials, leaded paints, molds and other
harmful biologic agents, and
polychlorinated biphenyls.
"Indemnified Party" shall have the meaning set forth in
Section 9.1(d).
"Indemnifying Party" shall have the meaning set forth in
Section 9.1(d).
"Indemnity Termination Date" shall have the meaning set forth
in Section 9.1(c).
"Intellectual Property" shall mean all (i) patents, (ii)
inventions, discoveries, processes,
formulae, designs, models, industrial
designs, know-how, confidential
information, proprietary information and trade
secrets, whether or not patented or
patentable, (iii) trademarks, service marks,
trade names, brand names, trade dress,
slogans, logos and internet domain names,
(iv) copyrights and other copyrightable
works and works in progress, databases
and software, (v) all other intellectual
property rights and foreign equivalent
or counterpart rights and forms of
protection of a similar or analogous nature
or having similar effect in any
jurisdiction throughout the world, (vi) any
renewals, extensions, continuations,
divisionals, reexaminations or reissues or
equivalent or counterpart of any of the
foregoing in any jurisdiction throughout
the world, and (vii) all registrations and
applications for registration of any
of the foregoing.
"Intercompany Account" shall have the meaning set forth in
Section 3.25.
"Joint Venture" shall have the meaning set forth in Section
3.7.
"Joint Venture Agreement" shall have the meaning set forth in
Section 3.7.
"Knowledge of Seller" shall mean matters actually known after
reasonable investigation by any of the
Persons listed on Schedule 1.1(A).
"Law" shall mean any applicable Governmental Order or any
applicable provision of any constitution,
law (including principles of the
common law), legally binding directive,
treaty, statute, rule, regulation or
order of any Governmental Authority.
"Leased Real Property" shall have the meaning set forth in
Section 3.23(a).
"Liabilities" shall mean any and all liabilities and
obligations of every kind and description
whatsoever, whether such liabilities
or obligations are known or unknown,
disclosed or undisclosed, matured or
unmatured, accrued, absolute, contingent or
otherwise.
7
<PAGE>
"Losses" shall mean any and all claims, Liabilities, losses,
damages, fines, penalties and costs (in
each case including reasonable
out-of-pocket expenses (including
reasonable attorneys', accountants', technical
consultants', engineers' and experts' fees
and expenses)).
"Material Contracts" shall have the meaning set forth in
Section 3.19(a).
"Material Environmental Applications" shall have the meaning
set forth in Section 3.20(a)(vii).
"Material Mining Applications" shall have the meaning set
forth in Section 3.12(c)(ii).
"Material Permits" shall mean all Permits that are material to
the Company, any of its Subsidiaries or any
Associated Company.
"Mining Authorization" shall mean the mining leases, licenses,
permits and other mining authorities held
by any of the Company, its
Subsidiaries or the Associated Companies,
and which are listed on Schedule
1.1(B).
"Native Title" shall mean a right, interest or entitlement to
the occupation or use of land by indigenous
persons or their descendants in
accordance with the laws and customs
recognized by statute or common law from
time to time (including in respect of
cultural heritage).
"Net Debt" shall mean, as of any date, the result of Debt
minus Cash of the Company and its
Subsidiaries.
"Neutral Auditor" shall have the meaning set forth in Section
2.7(c).
"ordinary course of business" shall mean, the usual, regular
and ordinary course of a business
consistent with the past practice thereof.
"Ordinary Shares" shall have the meaning set forth in the
recitals to this Agreement.
"organizational document" shall mean, as to any Person, its
constitution, certificate or articles of
incorporation, its regulations or
by-laws or any equivalent documents under
the law of such Person's jurisdiction
of incorporation or organization.
"Owned Real Property" shall have the meaning set forth in
Section 3.23(b).
"Peabody" shall have the meaning set forth in the first
sentence of this Agreement.
"Permits" shall mean any consent, approval, authorization,
permit, license, certificate or exemption
which the Law requires the Company,
any of its Subsidiaries or any
8
<PAGE>
Associated Company to hold in order to
develop and operate its respective assets
and conduct its respective business.
"Permitted Encumbrance" shall mean, (i) liens for Taxes,
Assessments and other charges of
Governmental Authorities not yet due and
payable or being contested in good faith by
appropriate proceedings during which
collection or enforcement against the
property is stayed, (ii) mechanics',
workmen's, repairmen's, warehousemen's,
carriers' or other like liens arising or
incurred in the ordinary course of business
or by operation of law if the
underlying obligations are not delinquent,
(iii) any conditions that may be
shown by a current, accurate survey, (iv)
easements, encroachments,
restrictions, rights of way and any other
non-monetary title defects, and (v)
zoning, building and other similar
restrictions; provided none of the foregoing
described shall individually or in the
aggregate impair the continued use and
operation or materially impair the value of
the property to which they relate in
the ordinary course of business of the
Company and its Subsidiaries, as
applicable.
"Permitted Restructuring Tax Costs" shall mean any liability
for Tax and any related advisory costs that
the Company or any of its
Subsidiaries incurs to the extent that such
liability or costs would not have
arisen or been incurred had the Company or
any of its Subsidiaries not
undertaken the Company Restructuring.
"Person" shall mean any individual, partnership, firm,
corporation, association, trust,
unincorporated organization, joint venture,
limited liability company, Governmental
Authority or other entity.
"Post-Closing Filing Return" shall have the meaning set forth
in Section 5.3(b)(ii).
"Post-Closing Tax Period" shall mean all taxable periods
beginning after the Closing Date.
"Pre-Closing Tax Period" shall mean all taxable periods ending
on or before the Closing Date.
"Preference Shares" shall have the meaning set forth in the
recitals to this Agreement.
"Proceeding" shall mean any action, claim, matter, dispute,
demand, suit, proceeding, conciliation,
arbitration, citation, summons,
subpoena, inquiry or investigation of any
nature, civil, criminal, regulatory or
otherwise, in law or in equity, by or
before any Governmental Authority.
"Purchase Price" shall have the meaning set forth in Section
2.2(a).
"Recipient" shall have the meaning set forth in Section 10.1.
"RAG Trading" shall have the meaning set forth in Section
3.4(b).
9
<PAGE>
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or
disposing of Hazardous Materials into any
occupied structure or the environment,
including, surface water, ground water, a
drinking water supply, land surface or
subsurface strata or ambient air (including
the abandonment or discarding of
barrels, containers, and other closed
receptacles containing any Hazardous
Material).
"Resolution Period" shall have the meaning set forth in
Section 2.7(b).
"Ruhrkohle" shall have the meaning set forth in Section
9.1(a).
"Seller" shall have the meaning set forth in the first
sentence of this Agreement.
"Seller Confidential Information" shall have the meaning set
forth in Section 5.16(b).
"Seller Guarantees" shall mean all guarantees, indemnities,
letters of credit, letters of comfort and
similar credit obligations set forth
on Schedule 1.1(C).
"Seller Indemnitees" shall have the meaning set forth in
Section 9.1(b).
"Seller Insurance Policies" shall have the meaning set forth
in Section 5.12.
"Seller Representatives" shall have the meaning set forth in
Section 5.16(a).
"Shares" shall have the meaning set forth in the recitals to
this Agreement.
"Straddle Indemnification Period" shall have the meaning set
forth in Section 5.3(e).
"Straddle Period" shall have the meaning set forth in Section
5.3(e).
"Subject Claims" shall have the meaning set forth in Section
5.12.
"Subject Liabilities" shall have the meaning set forth in
Section 5.12.
"subsidiaries" shall mean any and all corporations,
partnerships, limited liability companies
and other entities with respect to
which a company, directly or indirectly,
owns securities having the power to
elect a majority of the board of directors
or similar body governing the affairs
of such entity.
"Subsidiaries" shall have the meaning given in the Australian
Corporations Act; provided, however, that
for purposes of Sections 3.15,
5.1(b)(ix) and 5.3 "Subsidiaries" shall
mean any entities which are controlled
by a parent entity, where control means the
capacity to dominate decision
making, directly or indirectly, in relation
to the financial and operating
policies of another entity so as to enable
that other entity to operate with it
in pursuing the objectivities of the parent
entity. For the purpose of this
definition "control" shall not be deemed to
exist where 50% or less of the
issued capital is held
10
<PAGE>
"Subsidiary Securities" shall have the meaning set forth in
Section 3.5.
"Supplier" shall have the meaning set forth in Section 10.1.
"Target Total Company Equity" shall have the meaning set forth
in Section 2.2(b).
"Tax" or "Taxes" shall mean any taxes of any kind, including
but not limited to:
(a) income
tax, capital gains tax, franking deficits tax, land
tax, Duty, fringe benefits tax,
superannuation guarantee levy, GST, training
guarantee levy, PAYE or PAYG withholding
tax, other withholding taxes, land tax,
import or customs duty, excise, municipal
and council rates;
(b) those measured on, measured by or referred to as, income,
alternative or add-on minimum, gross
receipts, escheat, capital, capital gains,
sales, use, ad valorem, franchise, profits,
license, privilege, transfer,
withholding, payroll, employment, social,
excise, severance, stamp, occupation,
premium, value added, goods and services,
property, environmental or windfall
profits taxes, customs, duties or similar
fees, Assessments or charges of any
kind whatsoever; and
(c) any contractual obligation to indemnify another Person for
Taxes;
together with any interest and any
penalties, additions to tax or additional
amounts imposed by any Governmental
Authority.
"Tax Act" shall mean the Income Tax Assessment Act 1936 (Cth)
or the Income Tax Assessment Act 1997
(Cth), as the case may be, as in force
from time to time.
"Tax Amendment Period" shall mean the last date by which the
relevant Governmental Authority may review,
audit, amend or cause to be amended
a Tax Return or Assessment of the relevant
Person relating to or arising in
respect of a period occurring on or before
Closing or a Straddle Period,
provided that no extension or waiver of the
Tax Amendment Period applicable to
any Tax or Tax Return has been agreed for
the relevant period. Notwithstanding
the foregoing, the last date of any Tax
Amendment Period shall not be later than
8 years from the date of assessment or
deemed assessment pursuant to a Tax Law.
"Tax Benefit" shall have the meaning set forth in Section
9.1(c).
"Tax Claim" shall have the meaning set forth in Section
5.3(h).
"Tax Law" shall mean any Law relating to Tax.
"Tax Loss" shall
have the meaning set forth in Section
5.3(f)(vi).
"tax reserve" shall have the meaning set forth in Section
5.3(g).
11
<PAGE>
"Tax Return" shall mean any return, report, declaration, form,
election letter, statement or other
information or document required by any Tax
Law to be or prepared by a Person, filed
with any Governmental Authority or kept
by the Person with respect to Taxes,
including, but not limited to, an income
tax return, a GST return and any schedule
or attachment thereto or amendment
thereof.
"Taxing Authority" shall mean, with respect to any Tax, the
Governmental Authority thereof that imposes
such Tax and the agency, court or
other body (if any) charged with the
interpretation, administration or
collection of such Tax for such
Governmental Authority.
"Tenure Defect" shall mean any potential defect in a Material
Mining Application caused by the background
tenure of a prospecting permit, an
exploration permit or a mineral development
license granted by the Queensland
Department of Natural Resources and Mines
and which background tenure was
subject to a condition that excluded land
subject to Native Title from the
permit area.
"Termination Nonsolicitation Period" shall mean the greater of
the following to the extent permitted by
Law: (A) 2 years or (B) 1 year from the
date of termination of this Agreement in
accordance with its terms.
"Thiess" shall have the meaning set forth in Section 3.19(c).
"Thiess Operating Agreement" shall have the meaning set forth
in Section 3.19(c).
"Third Parties" shall have the meaning set forth in Section
5.10(a).
"Third-Party Claim" shall have the meaning set forth in
Section 9.1(d).
"Total Company Equity" shall mean, with respect to a specific
date, the total company equity set forth on
the Company's statement of financial
position as of such date, as determined in
accordance with Australian Accounting
Standards, consistently applied.
"Total Company Adjusted Net Assets" shall mean, with respect
to a specific date, (i) Total Company
Equity minus (ii) Net Debt as calculated
based on amounts set forth on the Company's
statement of financial position as
of such date, as determined in accordance
with Australian Accounting Standards,
consistently applied; provided that for any
determination as of the Closing
Date, Total Company Equity shall be
adjusted by the addition of the amount of
the after-tax cost to the Company of
payments made pursuant to the last sentence
of Section 11.1 of this Agreement; and,
provided further that for any
determination as of the Closing Date, the
amount of the Company Dividend shall
be deemed to be Cash for purposes of the
calculation of Net Debt to the extent
such amount has been deducted in
calculating Total Company Equity.
"Water Permits" shall mean any Consent under the Australia
Water Act 2000 (Qld) (the "Water Act") or
Australia Integrated Planning Act 1994
(Qld) required by the Company or any of its
Subsidiaries to take or use water or
to construct works for the taking, use
12
<PAGE>
or inference with water or the construction
of a dam in order to develop and
operate their respective assets and conduct
their respective businesses.
1.2 Other
Interpretive Provisions. (a) The words
"hereof," "herein" and "hereunder" and
words of similar import when used in this
Agreement shall refer to this Agreement as
a whole (including any Schedules
hereto) and not to any particular provision
of this Agreement, and all Article,
Section, Schedule and Exhibit references
are to this Agreement unless otherwise
specified. The words "include," "includes"
and "including" shall be deemed to be
followed by the phrase "without
limitation." The meanings given to terms defined
herein shall be equally applicable to both
the singular and plural forms of such
terms. Whenever the context may require,
any pronoun shall include the
corresponding masculine, feminine and
neuter forms. Except as otherwise
expressly provided herein, all references
to "U.S. dollars" or "US$" shall be
deemed references to the lawful money of
the United States of America, and all
references to "Australian dollars" or "A$"
shall be deemed references to the
lawful money of Australia.
(b) The
disclosure of any matter on a Schedule shall not
be deemed to be an admission or
representation as to the materiality of the
matter so disclosed. Any matter disclosed
on a Schedule pursuant to any Section
of this Agreement shall be deemed to have
been disclosed for purposes of another
Section or Sections of this Agreement if
the relevance or applicability of such
disclosure to the subject matter of such
other Section or Sections is clear and
apparent on the face of such
disclosure.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase
and Sale of the Shares. (a) On the Closing
Date and subject to the terms and
conditions set forth in this Agreement, Seller
will sell, convey, assign and transfer to
Buyer, and Buyer will purchase and
acquire, all of such Seller's right, title
and interest in and to the Shares,
free and clear of all Encumbrances.
2.2
Consideration; Estimated Purchase Price Adjustment.
(a) On the Closing Date and subject to the
terms and conditions set forth in
this Agreement, in reliance on the
representations, warranties, covenants and
agreements of the parties contained herein
and in consideration of the sale,
assignment and transfer of the Shares,
Buyer will (and Peabody will cause Buyer
to) pay to Seller Two Hundred Fifty Million
U.S. Dollars (US$250,000,000), as
adjusted in accordance with Section 2.2(b)
hereof (the "Closing Payment"; and
the Closing Payment, as adjusted in
accordance with Section 2.7, the "Purchase
Price").
(b) Not later
than three (3) business days prior to the
Closing Date, Seller shall deliver to Buyer
a statement (the "Estimated Closing
Total Company Adjusted Net Assets
Statement") setting forth Sellers' good faith
estimate of the Total Company Adjusted Net
Assets of the Company and its
consolidated entities in Australian Dollars
as of the Closing Date, giving
effect to the Company Restructuring (the
"Estimated Closing Total Company
Adjusted Net Assets"). At the Closing, the
amount of the Closing Payment that
Buyer shall pay shall be adjusted by the
difference between (i) the Estimated
Closing Total Company Adjusted Net Assets
and (ii) A$253,765,000 (the "Target
Total Company Equity"). If the Estimated
Closing
13
<PAGE>
Total Company Adjusted Net Assets exceeds
the Target Total Company Equity, the
amount of the Closing Payment paid at the
Closing shall be increased
dollar-for-dollar by the amount of such
excess (after converting the amount of
such excess to U.S. dollars in accordance
with Section 2.9); and if the
Estimated Closing Total Company Adjusted
Net Assets is less than the Target
Total Company Equity, the amount of the
Closing Payment paid at the Closing
shall be decreased dollar-for-dollar by
such shortfall (after converting the
amount of such shortfall to U.S. dollars in
accordance with Section 2.9). The
Closing Payment shall thereafter be subject
to further adjustment as provided in
Section 2.7.
2.3 The
Closing. Unless this Agreement shall have been
terminated pursuant to ARTICLE VIII,
subject to the satisfaction or waiver of
the conditions set forth in ARTICLES VI and
VII, the closing (the "Closing") of
the transactions contemplated by this
Agreement shall take place at the offices
of Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York
10017, on the later of (i) five (5)
Business Days following the satisfaction or
waiver of the conditions set forth in
Article VI and Article VII occurs and (ii)
April 15, 2004 (the later of (i) and (ii),
the "Closing Date"), or at such other
place and time as may be agreed upon by
Seller, Peabody and Buyer. Except as may
otherwise be agreed to by the parties, the
Closing shall be deemed effective for
all purposes under this Agreement as of
11:59 p.m., Eastern Standard Time, on
the Closing Date.
2.4 Deliveries
at the Closing. (a) At or prior to the
Closing, Seller shall deliver or cause to
be delivered, to Buyer (provided that
in the case of the documents referred to in
paragraphs (vii) to (xi) below such
documents shall be deemed to have been
delivered to Buyer if at the Closing they
are located at any premises owned or
controlled by the Company or any of its
Subsidiaries):
(i)
share
certificates for the Shares accompanied by
share transfer forms duly executed by Seller;
(ii)
a receipt from Seller for the Closing Payment;
(iii)
copies of the resolutions (or local equivalent) of
the board of directors and, where required, the shareholders of
Seller,
authorizing and approving this Agreement and the transactions
contemplated hereby, certified by the corporate secretary or
other
senior officer or officers of Seller reasonably acceptable to Buyer
to
be true and complete and in full force and effect and unmodified as
of
the Closing Date;
(iv)
the Consents listed on Schedule 2.4(a)(iv);
(v) the
certificate required by Section 7.3;
(vi)
the written resignations of all directors and
officers of the Company and each of its Subsidiaries, including,
the
secretary of the Company and each of its Subsidiaries, and the
auditors
of the Company and each of its Subsidiaries; each resignation to
be
effective on the appointment of the directors, officers,
secretaries
and auditors to be appointed at the board meeting to be convened
under
Section 2.5;
14
<PAGE>
(vii) the
certificate of registration, common seal (to the
extent the Company and each Subsidiary has one); all statutory,
minute
and other record books and share certificate books of the Company
and
each Subsidiary and all unused share certificates;
(viii) all
ledgers and books of account of the Company and
each Subsidiary;
(ix)
all check books and a list of all bank accounts
maintained by the Company and each Subsidiary;
(x) all
documents in the possession of the Company and
each Subsidiary relating to the Owned Real Property and the Leased
Real
Property; and
(xi)
a form of proxy as contemplated by Section 2.6(i) to
appoint a nominee of Buyer as sole proxy of Seller to attend
all
shareholder meetings and exercise the votes attached to the
Shares.
(b) At or
prior to the Closing, Buyer shall (and Peabody
shall cause Buyer to) deliver or cause to
be delivered to Seller the following:
(i) the
Closing Payment by wire transfer of immediately
available funds;
(ii)
a receipt from Buyer for the Shares;
(iii)
copies of the resolutions of the board of directors
of Peabody and Buyer authorizing and approving this Agreement and
all
other transactions and agreements contemplated hereby, certified by
the
corporate secretary of Peabody and Buyer, as applicable, to be true
and
complete and in full force and effect and unmodified as of the
Closing
Date; and
(iv)
the certificate required by Section 6.3.
2.5 Closing
Board Meeting.
At the Closing, Seller shall ensure that a meeting of the
directors of the Company and each of its
Subsidiaries is convened and the
following business is conducted at the
meeting:
(i) approval
of the registration of Buyer as the holder
of the Shares on the books of the Company, subject to the payment
of
applicable Duty on those Shares;
(ii)
appointment of the nominees of the Buyer as
directors, secretary, or auditors of the Company and each of
its
Subsidiaries;
(iii)
alteration of the registered office of the Company to
that of the registered
office of Buyer; and
(iv)
revocation of all existing powers of attorney,
signing authorities and mandates for the operation of bank accounts
of
the Company and each of its Subsidiaries
15
<PAGE>
and approval of new mandates in favour of the officers of the
Company
and each of its Subsidiaries nominated by Buyer.
2.6 Period
after Closing. From the Closing Date, until
the Shares are registered in the name of
Buyer, Seller shall, at the cost of the
Buyer: (i) appoint the nominees of Buyer as
sole proxy of Seller to attend
shareholders meetings and exercise the
votes attached to the Shares; (ii) not
itself attend or vote at those meetings;
and (iii) take all other actions in the
capacity of a registered holder of the
Shares as Buyer directs.
2.7 Closing
Payment Adjustment. (a) Within thirty-five
(35) calendar days after the Closing Date,
Seller, at its expense, will prepare,
or cause to be prepared, and will deliver
to Buyer, a statement of financial
position of the Company and its
Subsidiaries as of the Closing Date (the
"Closing Balance Sheet"). The Closing
Balance Sheet shall be prepared on a
consolidated basis in accordance with
Australian Accounting Standards, applied
on a basis consistent with the audited
statement of financial position of the
Company and its consolidated entities as at
December 31, 2003 included in the
Audited Financial Statements (the "Audited
Balance Sheet") and shall be
attested, in accordance with Australian
Auditing Standards, by KPMG. At the same
time, Seller, at its expense, will prepare
or cause to be prepared, and will
deliver to Buyer, a statement of Total
Company Adjusted Net Assets of the
Company and its consolidated entities in
Australian Dollars as of the Closing
Date (the "Closing Total Company Adjusted
Net Assets Statement"). The Closing
Total Company Adjusted Net Assets Statement
shall be prepared in accordance with
the definition of Total Company Adjusted
Net Assets and on a consolidated basis
in accordance with Australian Accounting
Standards, applied on a basis
consistent with the Audited Balance Sheet
and shall be attested, in accordance
with Australian Auditing Standards, by
KPMG. Peabody and Buyer will assist and
cooperate with Seller in the preparation of
each of the Closing Balance Sheet
and the Closing Total Company Adjusted Net
Assets Statement, including by
providing Seller and KPMG with reasonable
access to the books and records of the
Company and to any other information
reasonably necessary to prepare the Closing
Balance Sheet and the Closing Total Company
Adjusted Net Assets Statement.
(b) Peabody
and Buyer shall, within twenty-one (21)
calendar days after the delivery by Seller
of the Closing Balance Sheet and the
Closing Total Company Adjusted Net Assets
Statement, complete its review of the
Closing Balance Sheet and the Closing Total
Company Adjusted Net Assets
Statement. Peabody and Buyer and their
accountants shall be provided with
reasonable access to the workpapers of KPMG
in connection with such review
subject to Buyer's compliance with
procedures requested by KPMG that are
reasonable and customary under the
circumstances. In the event that Buyer
determines that either of the Closing
Balance Sheet or the Closing Total Company
Adjusted Net Assets Statement has not been
prepared on a basis consistent with
the requirements of Section 2.7(a), Buyer
shall deliver notice to Seller on or
prior to the twenty-first (21st) day after
receipt of the Closing Balance Sheet
and the Closing Total Company Adjusted Net
Assets Statement specifying in
reasonable detail all disputed items and
the basis therefor. If Buyer so
notifies Seller of any objections to the
Closing Balance Sheet or the Closing
Total Company Adjusted Net Assets
Statement, Peabody, Buyer and Seller shall,
within thirty (30) days following the date
of such notice (the "Resolution
Period"), attempt to resolve their
differences and any written resolution by
them as to any disputed amount shall be
final, binding, conclusive and
nonappealable for all purposes under this
Agreement.
16
<PAGE>
(c) If at the
conclusion of the Resolution Period
Peabody, Buyer and Seller have not reached
an agreement on Buyer's objections,
then all amounts and issues remaining in
dispute shall be submitted by Seller,
Peabody and Buyer to PricewaterhouseCoopers
LLP or to another mutually
acceptable nationally recognized
independent accounting firm in Australia (the
"Neutral Auditor") for a determination
resolving such amounts and issues. Each
party agrees to execute, if requested by
the Neutral Auditor, a reasonable
engagement letter with respect to the
determination to be made by the Neutral
Auditor. All fees and expenses relating to
the work, if any, to be performed by
the Neutral Auditor shall be borne one-half
by Seller, on the one hand, and
one-half by Peabody and Buyer, on the other
hand. Except as provided in the
preceding sentence, all other costs and
expenses incurred by Peabody, Buyer and
Seller in connection with resolving any
dispute hereunder before the Neutral
Auditor shall be borne by the party
incurring such cost and expense. The Neutral
Auditor shall determine only those issues
still in dispute at the end of the
Resolution Period and the Neutral Auditor's
determination shall be based upon
and be consistent with the terms and
conditions of this Agreement. The
determination by the Neutral Auditor may be
based on presentations with respect
to such disputed items by Peabody, Buyer
and Seller to the Neutral Auditor. Each
of Peabody, Buyer and Seller shall use its
reasonable best efforts to make its
presentation as promptly as practicable
following submission to the Neutral
Auditor of the disputed items, and each
such party shall be entitled, as part of
its presentation, to respond to the
presentation of the other party and any
questions and requests of the Neutral
Auditor. In deciding any matter, the
Neutral Auditor (i) shall be bound by the
provisions of this Section 2.7(c) and
(ii) may not assign a value to any item
greater than the greatest value for such
item claimed by Peabody, Buyer or Seller or
less than the smallest value for
such item claimed by Peabody, Buyer or
Seller. The Neutral Auditor's
determination shall be made within
forty-five (45) days after its engagement
(which engagement shall be made no later
than five (5) Business Days after the
end of the Resolution Period), or as soon
thereafter as possible, shall be set
forth in a written statement delivered to
Seller, Peabody and Buyer and shall be
final, conclusive, nonappealable and
binding for all purposes hereunder, absent
manifest error. The term "Final Closing
Balance Sheet" shall mean the definitive
Closing Balance Sheet agreed to by Seller,
Peabody and Buyer in accordance with
Section 2.7(b) or the definitive Closing
Balance Sheet resulting from the
determination made by the Neutral Auditor
in accordance with this Section
2.7(c). The term "Final Closing Total
Company Adjusted Net Assets Statement"
shall mean the definitive Closing Total
Company Adjusted Net Assets Statement
agreed to by Seller, Peabody and Buyer in
accordance with Section 2.7(b) or the
definitive Closing Total Company Adjusted
Net Assets Statement resulting from
the determination made by the Neutral
Auditor in accordance with this Section
2.7(c).
(d) If the
calculation of the Total Company Adjusted Net
Assets contained in the Final Closing Total
Company Adjusted Net Assets
Statement is less than the Total Company
Adjusted Net Assets contained in the
Estimated Closing Total Company Adjusted
Net Assets Statement, Seller shall pay
to Buyer an amount in cash equal to the
amount of such deficiency (after
converting such deficiency amount to U.S.
dollars in accordance with Section
2.9). If the calculation of the Total
Company Adjusted Net Assets contained in
the Final Closing Total Company Adjusted
Net Assets Statement is greater than
the Total Company Adjusted Net Assets
contained in the Estimated Closing Total
Company Adjusted Net Assets Statement,
Buyer shall pay to Seller an amount in
cash equal to the amount of such excess
(after converting such excess amount to
U.S. dollars in accordance with Section
2.9).
17
<PAGE>
(e) All
amounts payable by Buyer or Seller, as the case
may be, pursuant to Section 2.7(d), shall
be (i) paid within three (3) Business
Days after the ultimate determination of
the Final Closing Total Company
Adjusted Net Assets Statement as provided
in Section 2.7(c).
(f)
Notwithstanding anything to the contrary in this
Agreement, the amount of any adjustment
made pursuant to this Section 2.7 in
respect of any item shall not be
recoverable more than once by the party to whom
such amount was paid or credited, whether
pursuant to this Section 2.7, Section
9.1 or otherwise.
2.8 Payments
On or Before Closing. In accordance with
Section 11.1 hereof, Seller shall pay on or
before the Closing all amounts
payable for investment banking fees and
legal and other similar fees and
expenses of the Company and the Company's
Subsidiaries (or for which the Company
or any of its Subsidiaries may be liable)
related to the transactions
contemplated in this Agreement, and none of
the Company or any of its
Subsidiaries shall have any liability in
respect thereof after the Closing.
2.9 Form of
Payments. All payments hereunder shall be
made by delivery to the recipient by
depositing, by bank wire transfer, the
required amount in U.S. dollars (in
immediately available funds) to an account
of the recipient, which account shall be
designated by the recipient in writing
at least three (3) Business Days prior to
the date of the required payment. Any
amounts described in Australian dollars
required to be paid pursuant to Section
2.2(b) or Section 2.7(d) shall be converted
to U.S. dollars to comply with this
Section 2.9, using the rate of exchange
between Australian dollars and U.S.
dollars as reported by Bloomberg, L.P. as
of the close of business in New York,
New York on the Business Day immediately
prior to the Closing Date.
2.10
Allocation of Purchase Price. The parties agree to
allocate the Purchase Price among the
Shares in accordance with Schedule 2.10.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Peabody and Buyer as
follows:
3.1
Organization. Each of Seller, the Company and its
Subsidiaries is a corporation duly
incorporated, validly existing and in good
standing under the Laws of its jurisdiction
of incorporation, formation or
organization. Each of Seller, the Company
and its Subsidiaries has the requisite
corporate power and authority to own, lease
and operate its assets and to carry
on its business as now being conducted and
is duly qualified or licensed to do
business and is in good standing in the
jurisdictions in which the ownership of
its property or the conduct of its business
requires such qualification or
license, except where the failure to be so
qualified or licensed (i) would not
reasonably be expected, individually or in
the aggregate, to have a material
adverse effect on the ability of Seller to
consummate the transactions
contemplated by this Agreement or (ii)
would not reasonably be expected,
individually or in the aggregate, to have a
Company Material Adverse Effect.
Schedule 3.1 sets forth the jurisdictions
where the Company and each of its
Subsidiaries is qualified or licensed to do
business. Seller
18
<PAGE>
has heretofore provided to Buyer a complete
and correct copy of the
organizational documents of the Company and
each of its Subsidiaries, as
currently in effect.
3.2
Authorization; Enforceability. Seller has the
requisite corporate power and authority to
execute and deliver this Agreement
and to perform its obligations hereunder.
The execution and delivery of this
Agreement by Seller, and the performance of
its obligations hereunder, has been
duly authorized by all necessary corporate
action on the part of such party,
and, upon such authorization, no other
corporate or shareholder proceedings or
actions are necessary to authorize and
consummate this Agreement or the
transactions contemplated hereby. This
Agreement has been duly executed and
delivered by Seller, and, assuming due
authorization, execution and delivery by
Peabody and Buyer, constitutes a valid and
binding agreement of Seller and,
subject to any necessary stamping and
registration, is enforceable against
Seller in accordance with its terms, except
as may be limited by applicable
bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and
other similar Laws relating to or affecting
creditors' rights generally and
general equitable principles (whether
considered in a proceeding in equity or at
law).
3.3 Capital
Stock. The entire issued share capital of the
Company consists of (i) 1,500 Ordinary
Shares and (ii) 65,000,000 Redeemable
Preference Shares. All of such issued
shares have been validly issued, are fully
paid (and no money or other obligation is
owing in respect of them), and have
not been issued in violation of any
preemptive or similar rights. Except for the
Shares, there are no outstanding (i) shares
or voting securities of the Company,
(ii) securities of the Company convertible
into or exercisable or exchangeable
for shares or voting securities of the
Company, (iii) options or other rights or
agreements to acquire from the Company, or
other obligations of the Company to
issue, transfer or sell any shares, voting
securities or securities convertible
into or exercisable or exchangeable for
shares or voting securities of the
Company (the items in clauses (i), (ii) and
(iii) being referred to collectively
as "Company Securities"). Neither the
Company nor any of its Subsidiaries is
obligated to repurchase, redeem or
otherwise acquire any Company Securities.
There are no voting trusts, proxies or
other agreements or understandings with
respect to or concerning Company
Securities.
3.4 Ownership;
No Liabilities of RAG Trading. (a) Seller
is the registered, legal and beneficial
owner of, and has good and valid title
to, all of the issued and outstanding
Shares and, as of the Closing, will be the
registered, legal and beneficial owner of
all of the issued and outstanding
Shares, in each case, free and clear of any
Encumbrances (or any agreement,
obligation or commitment to give or create
such Encumbrance), and will transfer
and deliver to Buyer at the Closing good
and valid title to such Shares, free
and clear of any Encumbrances or third
party interests or rights, subject to any
necessary stamping and registration
requirements.
(b) Since
December 31, 2001, ACN 003 181 217 Pty Limited
(formerly known as RAG Trading Asia Pacific
Pty Limited (ABN 55 033 181 217))
("RAG Trading"), (i) has had no assets,
material Liabilities, including, without
limitation, contractual obligations to
third parties, (except for the net loss
of A$343,542 reported in the Company's
statement of financial performance for
the year ended December 31, 2001, attached
to the Company's
19
<PAGE>
Director's Report for the year ended
December 31, 2001), no operations and no
employees, and (ii) has not conducted any
business in any manner whatsoever.
3.5
Subsidiaries. Schedule 3.5(i) sets forth the names,
jurisdictions of incorporation, formation
or organization and the issued share
capital and beneficial ownership, of all
Subsidiaries of the Company. Except as
set forth on Schedules 3.5(i), 3.6(i) and
3.7(i), none of the Company or any of
its Subsidiaries, directly or indirectly,
owns any voting, equity or other
ownership interest in any corporation,
partnership or other Person or entity.
Except as set forth on Schedule 3.5(ii),
all the issued share capital,
partnership interests, membership interests
or other equity interests, as
applicable, of each such Subsidiary are
validly issued, fully paid (and no money
or other obligation is owing in respect of
them), have not been issued in
violation of any preemptive or similar
rights, and are registered as being
owned, legally and beneficially, by the
Company or one of its Subsidiaries free
and clear of any Encumbrances, or any
agreement, obligation or commitment to
give or create such Encumbrance, and other
third party interests or rights.
Except as set forth in Schedule 3.5(iii),
there are no outstanding (i) shares or
voting securities of any Subsidiary of the
Company, (ii) securities of the
Company or any of its Subsidiaries
convertible into or exercisable or
exchangeable for shares or voting
securities of any of the Company's
Subsidiaries, (iii) options or other rights
or agreements to acquire from the
Company or any of its Subsidiaries, or
other obligations of the Company or any
of its Subsidiaries to issue, transfer or
sell any shares, voting securities or
securities convertible into or exercisable
or exchangeable for shares or voting
securities of any Subsidiary of the Company
(the items in clauses (i), (ii) and
(iii) being referred to collectively as
"Subsidiary Securities"). There are no
(A) outstanding obligations of the Company
or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any
Subsidiary Securities or (B) voting
trusts, proxies or other agreements or
understandings with respect to or
concerning Subsidiary Securities.
3.6 Associated
Companies. Schedule 3.6(i) sets forth the
names, jurisdictions of incorporation,
formation or organization and the issued
share capital and beneficial ownership, of
entities (each, an "Associated
Company") in which the Company or any one
of its Subsidiaries has an interest
other than those entities described in
Schedules 3.5(i) and 3.7(i). Except as
set forth on Schedule 3.6(ii), all the
issued share capital, partnership
interests, membership interests or other
equity interests, as applicable, of
each Associated Company held by Seller are
validly issued, fully paid (and no
money or other obligation is owing in
respect of them), have not been issued in
violation of any preemptive or similar
rights, and are registered as being
owned, legally and beneficially, as set
forth on Schedule 3.6(i), free and clear
of any Encumbrances, or any agreement,
obligation or commitment to give or
create such Encumbrance, and other third
party interests or rights; and, to the
Knowledge of Seller, all the issued share
capital, partnership interests,
membership interests or other equity
interests, as applicable, of each
Associated Company held by persons other
than Seller are validly issued, fully
paid (and no money or other obligation is
owing in respect of them), have not
been issued in violation of any preemptive
or similar rights, and are registered
as being owned, legally and beneficially,
as set forth on Schedule 3.6(i), free
and clear of any Encumbrances, or any
agreement, obligation or commitment to
give or create such Encumbrance, and other
third party interests or rights.
Except as set forth in Schedule 3.6(iii),
Seller is not a party to any (A)
outstanding obligations of any Associated
Company to repurchase, redeem or
otherwise acquire any shares or voting
securities of (or securities convertible
into or exercisable or exchangeable for, or
options or other rights or
agreements to acquire, shares or voting
securities of) any
20
<PAGE>
Associated Company or (B) voting trusts,
proxies or other agreements or
understandings with respect to or
concerning any shares or voting securities of
(or securities convertible into or
exercisable or exchangeable for, or options
or other rights or agreements to acquire,
shares or voting securities of) any
Associated Company.
3.7 Joint
Ventures. Schedule 3.7(i) sets forth the names,
jurisdictions of incorporation, formation
or organization and the issued share
capital and beneficial ownership, of all
joint ventures and partnership
arrangements (each, a "Joint Venture") in
which the Company or any one of it
Subsidiaries has an interest other than
those entities described in Schedules
3.5(i) and 3.6(i). Except as set forth on
Schedule 3.7(ii), there is no
agreement or commitment entered into by or
imposed on the Company or any of its
Subsidiaries which calls for the creation
or transfer of any ownership interest
in any Joint Venture (or any other
agreements entered into by the Company or
such Subsidiary in connection therewith)
(each, a "Joint Venture Agreement").
Except as set forth on Schedule 3.7(iii),
the interests set forth on Schedule
3.7(i) are free of all Encumbrances and
other third party interests or rights
other than those arising under or in
connection with any Joint Venture
Agreement. Other than as set out in the
Joint Venture Agreements, there is no
agreement, obligation or commitment entered
into by or imposed on the Company or
any of its Subsidiaries to give or create
any Encumbrance or third party
interest or right in any Joint Venture.
3.8 Audited
Financial Statements; Superannuation. (a)
Schedule 3.8 sets forth the audited
consolidated statements of financial
position of the Company and its
consolidated entities as at December 31, 2002
and 2003 and the related audited
consolidated statements of financial
performance and cash flows for the years
ended December 31, 2001, 2002 and 2003
(together, the "Audited Financial
Statements"). Each of the statements of
financial position and statements of
financial performance and cash flows
included in the Audited Financial
Statements (i) has been prepared in accordance
with Australian Accounting Standards
applied on a consistent basis during the
periods involved and (ii) fairly presents
the consolidated financial position of
the Company and its consolidated entities
as of the dates thereof and their
consolidated performance for the periods
then ended.
(b) Each of
the Company and its Subsidiaries have
satisfied all their superannuation
obligations under the Australian
Superannuation Guarantee (Administration)
Act 1992 (Cth).
3.9 Absence of
Undisclosed Liabilities(a) . (a) None of
the Company or its Subsidiaries has any
Liabilities, other than Liabilities (i)
reflected or reserved against in the
Audited Balance Sheet or not required by
Australian Accounting Standards to be so
reflected, reserved or disclosed, (ii)
incurred in the ordinary course of business
not in breach of Section 5.1 of this
Agreement since the date of the Audited
Balance Sheet (and, if incurred prior to
the date hereof, would not have been in
breach of Section 5.1 of this Agreement
if this Agreement was in full force and
effect at such time) or (iii) disclosed
on Schedule 3.9.
3.10
No Conflicts or Approvals. Except as set forth on
Schedule 3.10, the execution, delivery and
performance by Seller of this
Agreement and the consummation by Seller of
the transactions contemplated hereby
does not and will not (i) violate, conflict
with or result in a breach by
Seller, the Company or any of the Company's
Subsidiaries of their
21
<PAGE>
respective organizational documents, (ii)
violate, conflict with or result in a
breach of, or constitute a default by any
of Seller, the Company or the
Company's Subsidiaries (or create an event
which, with notice or lapse of time
or both, would constitute a default) under,
or require any consent or other
action by any Person under, or give rise to
any penalty right of termination,
cancellation or acceleration or loss of a
material benefit under, any note,
bond, mortgage, indenture, deed of trust,
license, franchise, permit, lease,
contract, agreement or other instrument to
which any of Seller, the Company or
the Company's Subsidiaries or any of their
respective properties or assets may
be bound, (iii) violate or result in a
breach of any Governmental Order or Law
applicable to any of Seller, the Company or
the Company's Subsidiaries or any of
their respective properties or assets or
(iv) result in the creation of any
Encumbrance, other than Permitted
Encumbrances, upon any of the properties or
assets of Seller, the Company or any of the
Company's Subsidiaries, except, with
respect to the foregoing clauses (ii),
(iii) and (iv) above, as would not be
material to the Company or its Subsidiaries
taken as a whole and would not
materially adversely affect the ability of
Seller to consummate the transactions
contemplated by this Agreement.
3.11
Governmental Authorization. The execution, delivery
and performance by Seller of this Agreement
and the consummation of the
transactions contemplated hereby, require
no action by or in respect of, or any
Consent from, any Governmental Authority,
except with any applicable
requirements of the actions and filings
listed on Schedule 3.11 and any such
action or filing as to which the failure to
make or obtain would not be material
to the Company and its Subsidiaries taken
as a whole or materially adversely
affect the ability of Seller to consummate
the transactions contemplated hereby.
3.12
Compliance with Law; Mining Authorities; Occupational
Health and Safety Laws; Performance Bonds.
(a) Except as set forth on Schedule
3.12, each of the Company and its
Subsidiaries have conducted their respective
businesses and developed and operated their
assets in compliance with all Laws
(except for Laws covered by the
representations set forth in Section 3.12(d) and
(e)) and all Permits, except where
noncompliance would not interfere in any
material respect with the ability of the
Company and its Subsidiaries, taken as
a whole, to continue to operate their
assets and conduct their businesses as
currently conducted, and would not
materially adversely affect the ability of
Seller to consummate the transactions
contemplated by this Agreement. In
furtherance of the foregoing, none of the
Company, any of its Subsidiaries, or
any of their respective employees is a
party to any agreement, contract,
arrangement or understanding, whether
legally enforceable or not, which is in
breach of any restrictive trade practices
legislation or which is registerable,
unenforceable or void pursuant to that
legislation and none of the Company or
any of its Subsidiaries has engaged in any
conduct or practice in breach of that
legislation; and none of the Company or any
of its Subsidiaries is as of the
date hereof subject to formal investigation
by any Government Authority under
any restrictive trade practices
legislation.
(b) Each of
the Company, its Subsidiaries and, to the
Knowledge of Seller, the Associated
Companies, possesses all Permits necessary
to own, lease, develop and operate its
assets and conduct their businesses in
all material respects as currently
conducted. None of the Company or any of its
Subsidiaries has received any communication
alleging or threatening that any
such Permit may be modified, suspended or
revoked and, to the Knowledge of
Seller, there are no circumstances or
conditions providing valid grounds for the
same, except where any such
22
<PAGE>
modification, suspension or revocation
would not interfere in any material
respect with the ability of the Company and
its Subsidiaries, taken as a whole,
to continue to operate their assets and
conduct their businesses as currently
conducted, and would not materially
adversely affect the ability of Seller to
consummate the transactions contemplated by
this Agreement.
(c) (i) There
are no material mining leases, licenses,
permits or other mining authorities owned
by the Company or any of its
Subsidiaries other than the Mining
Authorizations. The Company or one of its
Subsidiaries holds the legal or beneficial
title to the interest in each of the
Mining Authorizations.
(ii)
To the Knowledge of Seller, there are no material
applications for mining leases, licenses, permits and other
mining
authorities in the name of the Company or any of its Subsidiaries
other
than those set forth on Schedule 3.12(c)(ii)(A) (the "Material
Mining
Applications"); and the Company or one of its Subsidiaries will,
on
grant of any of such applications, hold legal or beneficial title
to
the interest in each such application as set forth on Schedule
3.12(c)(ii)(A). Each of the Material Mining Applications has been
made
in accordance with applicable Laws. Except as set forth on
Schedule
3.12(c)(ii)(B), none of Seller, the Company or any of its
Subsidiaries
has received any written communication that indicates that any of
the
Material Mining Applications will not be granted; and, to the
Knowledge
of Seller, none of Seller, the Company or any of its Subsidiaries
has
received any other communication that indicates that any of the
Material Mining Applications will not be granted.
(iii)
Except as set forth on Schedule 3.12(c)(iii)(A), each
of the Company and its Subsidiaries has complied in all
material
respects with the terms and conditions of the Mining
Authorizations.
Except as set forth on Schedule 3.12(c)(iii)(B), none of the
Company or
any of its Subsidiaries has received any notice of any written, or
to
the Knowledge of Seller, threatened claims that could adversely
affect
the title of the Company or any of its Subsidiaries to any
Mining
Authorization or that could adversely affect the use of the
Mining
Authorizations for the purposes of the business of the Company and
its
Subsidiaries and in accordance with their terms, which are material
to
the business of the Company and its Subsidiaries taken as a
whole.
(iv)
Other than Material Mining Applications MLA 70256 and
MLA 70257, none of the Material Mining Applications is subject to
a
Tenure Defect.
(d) Each of
the Company and its Subsidiaries has operated
its business in compliance with all
applicable human health Laws, employee
health and planning Laws and occupational
health and safety Laws and mining Laws
binding on such company or affecting such
business, including making all
relevant appointments under such Laws,
except where noncompliance would not (i)
have a material adverse effect on the
business, assets, Liabilities, results of
operations or financial condition of the
Company or any of its Subsidiaries,
taken as a whole (ii) interfere in any
material respect with the ability of the
Company or any of its Subsidiaries, taken
as a whole, to continue to operate
their assets and conduct their businesses
as currently conducted, or (iii)
materially adversely affect the ability of
Seller to consummate the transactions
contemplated by this Agreement. None of the
Company or any of its Subsidiaries
has received any written notice of any
material, current or, to the Knowledge of
Seller,
23
<PAGE>
threatened, claims, investigations,
judgments, directives or other proceedings
which are outstanding, as of the date
hereof, or involving the Company or any of
its Subsidiaries by any Governmental
Authority, union, former or current Company
Employees (including union and non-union
Company Employees) under any relevant
occupational health and safety Laws binding
on the Company or any of its
Subsidiaries or affecting their respective
businesses.
(e) Each of
the Company and its Subsidiaries has posted
all deposits, letters of credit, trust
funds, bid bonds, performance bonds,
reclamation bonds and surety bonds (and all
such similar undertakings) required
to be posted in connection with their
operations. All deposits, letters of
credit, trust funds, bid bonds, performance
bonds, reclamation bonds and surety
bonds (and all such similar undertakings)
posted by each of the Company and its
Subsidiaries in connection with its
respective operations are listed on Schedule
3.12(e) (collectively, the "Company Surety
Bonds"). Except as disclosed on
Schedule 3.12(e): (A) each of the Company
and its Subsidiaries is in compliance
in all material respects with all Company
Surety Bonds applicable to it; and (B)
the operation of each of the Company's and
its Subsidiaries' coal mining and
processing operations and the state of
reclamation with respect to the Company
Surety Bonds are "current" or in "deferred
status" regarding reclamation
obligations and otherwise are in compliance
with all applicable mining,
reclamation and other applicable Laws
except where noncompliance would not (i)
have a material adverse effect on the
business, assets, Liabilities, results of
operations or financial condition of the
Company and its Subsidiaries, taken as
a whole, (ii) interfere in any material
respect with the ability of the Company
and its Subsidiaries, taken as a whole, to
continue to operate their assets and
conduct their businesses as currently
conducted, or (iii) materially adversely
affect the ability of Seller to consummate
the transactions contemplated by this
Agreement.
3.13
Proceedings. Except as set forth on Schedule 3.13,
there are no Proceedings pending or, to the
Knowledge of Seller threatened,
involving Seller, the Company or any of the
Company's Subsidiaries or any of
their respective properties or any of their
respective directors or officers in
their capacities as such that (i) involves
or, if adversely determined, would
reasonably be expected to involve an award
of damages in the excess of
US$100,000 against the Company or any of
its Subsidiaries or seeks to materially
restrict the operation of the Company or
any of its Subsidiaries in any material
respect, (ii) in any manner challenges or
seeks to prevent, enjoin, alter or
materially delay the transactions
contemplated by this Agreement or (iii) are in
respect of any Mining Authorizations. There
is no judgment, decree, injunction
or order of a Governmental Authority
outstanding against any of the Company or
any of its Subsidiaries or in respect of
the Mining Authorizations. None of the
Company or any of its Subsidiaries has
received any written notification that
any such investigation or inquiry is being
conducted by any Governmental
Authority in respect of the business or
affairs of the Company or any of its
Subsidiaries; and, to the Knowledge of
Seller, none of the Company or any of its
Subsidiaries has received any other
notification that any investigation or
inquiry is being conducted by any
Governmental Authority in respect of the
business or affairs of the Company or any
of its Subsidiaries; furthermore, to
the Knowledge of Seller, there is no basis
for any such investigation or inquiry
that if determined adversely to the Company
or any of its Subsidiaries would be
material to the Company or any of its
Subsidiaries.
3.14
Absence of Certain Changes. Except as disclosed in
Schedule 3.14, since December 31, 2003: (i)
there has not been any condition,
change or event which has had, or
24
<PAGE>
would reasonably be expected to have,
individually or in the aggregate, a
Company Material Adverse Effect; (ii) the
business of the each of Company and
its Subsidiaries has been conducted only in
the ordinary course of business; and
(iii) there has not been any action taken
by the Company or any of its
Subsidiaries that would have been
prohibited under Section 5.1 if such action
had been taken by the Company or any of its
Subsidiaries after the date hereof.
3.15
Tax Matters. Except as set forth in Schedule 3.15:
(a) All Tax
Returns required to be filed by or on behalf
of the Company and each of its Subsidiaries
prior to the Closing Date
(separately or as part of a consolidated,
or combined group) have been or shall
be timely filed (subject to permitted
extensions applicable to such filing) and
all such Tax Returns were true and correct
in all material respects. To the
Knowledge of Seller no claim has ever been
made by a Taxing Authority in a
jurisdiction where the Company or any of
its Subsidiaries does not file Tax
Returns that any of the Company or its
Subsidiaries is or may be subject to
taxation by that jurisdiction. Each of the
Company and its Subsidiaries has
maintained proper and adequate records to
enable it to comply with its
obligations to (i) prepare and submit any
Tax Returns and pay any Taxes, (ii)
prepare any accounts necessary for
compliance with any Tax Law, and (iii) retain
necessary records as required by any Tax
Law. The Company has delivered to Buyer
or Peabody true and correct copies of all
material Tax Returns (including all
relevant workpapers and supporting
information), examination reports, and
statements of deficiencies assessed against
or agreed to by the Company and its
Subsidiaries where the Tax Amendment Period
has not yet expired.
(b) All Taxes
of the Company and each of its Subsidiaries
due on or prior to Closing have been paid.
Any Taxes that will not be due for
payment on or prior to Closing but relate
to the whole or part of any period or
periods ending on or prior to Closing or
relate to or are in respect of income,
profits or gains derived, or transactions,
acts or events occurring on or prior
to Closing will be provided for and
recognized in the Final Closing Balance
Sheet.
(c) There are
no Encumbrances other than Permitted
Encumbrances relating to Taxes encumbering
any of the Shares, or any assets or
properties of the Company or any of its
Subsidiaries.
(d) There has
not been any audit of any Tax Return filed,
by the Company or any of its Subsidiaries
for any taxable period. There are no
(i) examinations, reviews, audits,
Proceedings or disputes currently under way
or in process or that are pending or, to
the Knowledge of Seller, threatened by
any Taxing Authority against the Company or
any of its Subsidiaries, (ii) claims
for Taxes asserted or, to the Knowledge of
Seller, threatened to be asserted by
any Taxing Authority against the Company or
any of its Subsidiaries, or (iii)
unresolved claims in competent authority
pursuant to any income tax, trade tax
or social insurance tax treaty, against the
Company or any of its Subsidiaries
that, in each case, would reasonably be
expected to result in Taxes of the
Company or any of its Subsidiaries for any
taxable period (or portion thereof)
ending on or before the Closing Date.
(e) None of
the Company or any of its Subsidiaries has
taken any action that does, or might,
adversely affect an arrangement or
agreement in respect of Taxes entered into
with a Governmental Authority, or a
ruling or determination from a Governmental
Authority.
25
<PAGE>
(f) None of
the Company or any of its Subsidiaries is
currently a beneficiary of any extension of
time within which to file any Tax
Return or pay any Tax which is not
generally available to taxpayers.
(g) All Taxes
that the Company or any of its Subsidiaries
is or was required by Law to withhold or
collect, including without limitation
interest, dividend and royalty withholding
taxes and PAYG and PAYE taxes, have
been duly withheld or collected and, to the
extent required, have been paid to
the proper Governmental Authority by the
date that such payment was due.
(h) None of
the Company or any of its Subsidiaries has
granted any extension or waiver of the Tax
Amendment Period applicable to any
Tax or Tax Return, or agreed to any
extension of time with respect to an
Assessment or deficiency, which period
(after giving effect to such extension or
waiver) has not yet expired.
(i) The
Company:
(i) has not
made and will not make a choice on or before
Closing in accordance with section 703-50 of the Tax Act to form
a
consolidated group;
(ii)
and/or any of its Subsidiaries, alone or together,
have not at any time and will not at any time form part of a
consolidated group during a period ending on or prior to Closing;
and
(iii)
and/or any of its Subsidiaries have not paid an
unfranked or partly franked dividend on or prior to Closing that
may
impact on the tax cost setting amount of an asset available to
the
Buyer by virtue of the application of section 705-50 of the Tax
Act.
(j) None of
the Company or any of its Subsidiaries
constitutes a prescribed dual resident or
dual resident investment company, as
these expressions are defined in the Tax
Act.
(k) All Duty
(other than nominal Duty) payable by the
Company or any of its Subsidiaries on
documents and transactions to which the
Company or any of its Subsidiaries is a
party has been duly paid (together with
any interest and penalties thereon). There
is no impediment to the
enforceability of any such document or
transaction because of a failure to pay
Duty (other than nominal Duty).
(l) Each of
the Company and its Subsidiaries have
complied in all respects with all Laws,
contracts, agreements or arrangements
binding on it relating to GST and, where
the Company or one of its Subsidiaries
has the right to require another party to
such agreement or arrangement to pay
to the Company or such Subsidiary an amount
of GST, the Company or such
Subsidiary has enforced that right.
(m) None of
the Company or any of its Subsidiaries is the
supplier under a contract, agreement or
arrangement binding on it in respect of
or in relation to which the supplies are or
may become taxable in circumstances
where there is no express entitlement in
writing to
26
<PAGE>
recover or be paid an amount or additional
amount on account of GST. Without
limitation, this would include an agreement
that does not contain a GST gross up
clause.
(n) None of
the Company or any of its Subsidiaries:
(i) is, or has
been, part of a GST Group; and
(ii)
will apply to become a member of, or for approval of,
a GST Group on or prior to Closing.
(o) None of
the Company or any of its Subsidiaries is or
will be party to any transaction in respect
of land-holdings (as that expression
is defined in the Duties Act 2001 (Qld))
that has not been completed by
September 30, 2003.
(p) Each of
the Company and its Subsidiaries has at all
times on or prior to Closing accurately
maintained its respective franking
accounts and none of the Company or any of
its Subsidiaries has underfranked or
overfranked any dividend paid on or prior
to Closing.
(q) As at
Closing, the balance of the franking account of
each of the Company and its Subsidiaries
will be nil or in credit.
(r) As at
Closing, the share capital account of each of
the Company and its Subsidiaries will not
be tainted for the purposes of section
160ARDM of the Tax Act.
(s) No debt or
other liability owing by the Company or
any of its Subsidiaries has been or will
have been forgiven or otherwise dealt
with on or before Closing in a manner that
would reasonably be expected to
attract the operation of the Commercial
Debt Forgiveness provisions contained in
Schedule 2C or the Limited Recourse Debt
provisions contained in Division 243 of
the Tax Act.
(t) None of
the Company or any of its Subsidiaries has
entered into any agreement or arrangement
with another Person under which the
Company or any of its Subsidiaries is
liable or may become liable to pay,
reimburse or indemnify that Person in
respect of any Tax that is or may become
at some future stage payable by that Person
or its Affiliates.
(u) Without
limiting the generality of the other
warranties in this Section 3.15, the Seller
represents and warrants that, as at
Closing:
(i) no Tax is
payable by the Company or any of its
Subsidiaries by virtue of Closing by reason of the application of
any
provision of a Tax Law that applies to or is triggered by any
agreement
(including this Agreement), transaction, event, act or omission
in
circumstances where a gain, profit or other amount attributable to
or
arising as a consequence of an earlier agreement, transaction,
event,
act or omission had not been recognized as assessable, or had
been
deferred, including without limitation under section 160ZZOA or
subdivision 104-J of the Tax Act;
(ii)
no Duty is payable by the Company or any of its
Subsidiaries by reason of the application of any provision of a Tax
Law
that imposes Duty on the basis of the
27
<PAGE>
interests held by the Company or any of its Subsidiaries in
land,
including without limitation Part 1 of Chapter 3 of the Duties Act
2001
(Qld) and similar provisions in the other States and Territories
of
Australia, in relation to any agreement, transaction, event, act
or
omission, other than this Agreement and the transactions
contemplated
herein, occurring prior to Closing; and
(iii) no
Duty is or will be payable by the Company or any
of its Subsidiaries by reason of this Agreement causing the
withdrawal
or claw-back of Duty relief previously granted in respect of
any
agreement, transaction, event, act or omission occurring prior
to
Closing.
(v) Any term
or expression that is used in this Section
3.15 but not defined in this Agreement has the meaning given to
such
term or expression under the relevant Tax Law.
3.16
Employee Benefits. (a) Schedule 3.16(a) sets forth a
true and complete list of (i) each employee
benefit plan, (ii) all other
(whether written or unwritten) severance,
termination, retrenchment, salary
continuation, change in control,
employment, incentive, bonus, commission,
superannuation, stock option, stock
purchase, restricted stock, retirement,
pension, redundancy, profit sharing, fringe
benefit, collective bargaining,
employee loan or deferred compensation
plans, programs, agreements or policies,
any of which could reasonably be expected
to give rise to aggregate annual
Liabilities in the amount of US$100,000 or
more for the Company or any of its
Subsidiaries and (iii) all other employee
benefit plans, programs, agreements,
policies or other arrangements (whether
qualified or nonqualified, funded or
unfunded, foreign or domestic) and any
trust or similar agreement related
thereto, whether or not funded, (I)
contributed to, sponsored or maintained by
any of the Company, its Subsidiaries,
Seller or any of their respective
Affiliates, in which any current or former
employee, director or consultant of
the Company or any of its Subsidiaries
(collectively, the "Company Employees")
has any present or future right to benefits
or (II) with respect to which the
Company or any of its Subsidiaries has had
or has any present or future
liability (each, a "Company Benefit
Plan").
(b) Copies of
the following materials, to the extent
applicable to the Company and its
Subsidiaries, have been delivered to Buyer
with respect to each Company Benefit Plan:
(i) current, accurate and complete
plan documents (or, to the extent no such
copy exists, a current, accurate and
complete description), (ii) the most recent
determination letter or equivalent
document from any Australian federal, state
or local taxing or other
Governmental Authority having jurisdiction
over such plan, (iii) the most recent
summary plan description, summary of
material modifications to the extent not
included in the summary plan description,
in each case, distributed to Company
Employees, and any other written
communications (and a description of any oral
communications that, to the Knowledge of
Seller, have been made to or with
employees, and that would give rise to
rights different from those set forth in
the Company Benefit Plan) by any of Seller,
the Company, the Company's
Subsidiaries or any of their respective
Affiliates concerning the extent of
benefits provided under a Company Benefit
Plan, (iv) current agreements and
other documents relating to the funding or
payment of benefits, (v) a summary of
any proposed amendments or changes
anticipated to be made to any Company Benefit
Plan at any time within the twelve months
immediately following the date hereof,
and (vi) the most recent actuarial
valuation report and audited financial
statements.
28
<PAGE>
(c) The
Company Benefit Plans have been established and
administered in accordance with their terms
and are in compliance in all
