https://www.fedcourt.gov.au/__data/a...t-17082020.pdf
5 MR JACKMAN: Your Honour, can I address the sale and implementation deed which you’ve been provided with.
HIS HONOUR: Yes.
20 MR JACKMAN: And we maintain our submission that any
sale of assets is conditional upon the Bain DOCA being rejected by creditors,
that there won’t be an asset sale unless and until the Bain DOCA is rejected, and having seen the agreement we also submit that there is no binding contract of the sale of assets at this stage.
25 MR JACKMAN: Now, the provisions that I want to draw your Honour’s attention to, first in the sale and implementation deed, if your Honour goes to page 12.
HIS HONOUR: Yes.
30 MR JACKMAN: On page 12 it has a definition for “target signing date”.
HIS HONOUR: Yes.
MR JACKMAN: And I ask your Honour to note the number of business days referred to there, which of course is
one day short of the adjourned meeting.
HIS HONOUR: Yes.
MR JACKMAN: And there
won’t be a signed agreement until then. Then your Honour was taken to clause 3.3, there’s some words that I should emphasise in the first line of 3.3, namely “subject to clause 3.4(a)”, and 3.4(a) does deal with the purchaser’s DOCA being approved. It then talks, in 3.4(a)(i), of “
the entry into the asset sale agreement”, that’s something that happened in the future, and if signed, and of course it won’t be for a couple of months yet, the asset sale agreement will terminate. In other words, going back to 3.3(a), those words “subject to clause 3.4(a)” indicate expressly that there is not going to be a sale of the asset if the purchaser’s DOCA was approved. Indeed, it would be absurd for there to be a sale of assets if the purchasers DOCA was approved because the shares are going to be transferred, as Dr Higgins said, under 444GA.
Now, then if one goes to clause 7.2, Dr Higgins referred your Honour to clause 7.2, 5 but what she didn’t emphasise is that
this is no more than an agreement to agree.
Your Honour will see that in the first two lines of 7.2(a), and this is of absolutely fundamental importance. Because if one goes ahead to the draft asset sale agreement, at page 11, there’s an important condition precedent in clause 2.1, the clause
doesn’t become binding on the parties and is of no force and effect unless and until the following condition has been satisfied or waived, and then you’ve got the pre-completion restructure, or the minimum business critical ..... And going back to 7.2(a), the pre-completion restructure at this point is simply an agreement to agree, it may or may not culminate in an agreement, but at this stage one just doesn’t know.
------------
35 what the contract provides for is for an adjournment for 45 days which, of course, is
one day longer than the target signing date. And they don’t want a vote on other alternatives until then as your Honour can see. So we submit on the basis of that there is
no binding contract for sale as yetbut to the extent that there might be any sale of the assets is
entirely conditional on the Bain DOCA being rejected at the second creditors meeting and the creditors meeting being ..... So the argument that we began with today we maintain is correct having seen these extracts from the Bain contract.
45 HIS HONOUR: Yes. Thank you, Mr Jackman, on that.