INVITATION TO SUBMIT AN EXPRESSION OF INTEREST

INVITATION TO SUBMIT AN EXPRESSION OF
INTEREST
For the acquisition of a 66% participation in the share capital of the
Independent Power Transmission Operator S.A.
Athens, 10 April 2014
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I. TRANSACTION SCOPE AND OVERVIEW
1.
Introduction
The Independent Power Transmission Operator S.A. (“IPTO”) is the
Transmission System Operator and owner of the Hellenic Electricity
Transmission System and is responsible for the Transmission System
operation, maintenance and development. IPTO is a wholly owned subsidiary
of the Public Power Corporation S.A. (“PPC”) and has been certified as an
Independent Transmission Operator according to Directive 2009/72/EC of the
European Parliament and of the Council of 13 July 2009 concerning common
rules for the internal market in electricity and repealing Directive 2003/54/EC,
and the Greek Law 4001/2011.
By its Act no. 15 dated 24.07.2013 the Greek Cabinet approved the “PPC
Restructuring and Privatization Plan”, which provides, among other, for the
ownership unbundling of IPTO by means of an international public tender
process. Pursuant to article 1 of Law 4237/2014, the ownership unbundling
of IPTO shall be effected via the sale by PPC of a 66% stake in the existing
share capital of IPTO to an investor, while the remaining 34% is to be
acquired by the Hellenic Republic (“HR”).
In compliance with article 1 paragraph 1 of Law 4237/2014 this Invitation is
released further to resolution No. 43/10.04.2014 of PPC’s Board of Directors.
2.
Definitions
Affiliated Entities: legal entities affiliated in the sense of Article 42e paragraph 5
of the Greek Law 2190/1920 on societes anonymes.
Binding Offer: the binding offer to be made by Eligible Investors for the
acquisition of a 66% stake in IPTO.
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Eligible Investors: the Interested Parties qualifying for Phase B of the Tender
Procedure.
Expression of Interest: the documents to be submitted by the Interested Parties
in order to express their interest to participate in the Tender Procedure; they
consist of a letter of Expression of Interest accompanied by the Supporting
Documents.
Financial Advisors: HSBC Bank plc and Citigroup Global Markets Limited.
Interested Parties: legal entities or consortia thereof wishing to participate in
the Tender Procedure.
Invitation: this document by virtue of which the Seller invites Interested
Parties to express their interest for the acquisition of a 66% stake in IPTO.
Legal Advisors: KLC Law Firm and Norton Rose Fulbright.
Phase A: the first phase of the Tender Procedure (pre-qualification stage)
terminating with the qualification of the Eligible Investors.
Phase B: the second phase of the Tender Procedure terminating with the
selection of the Preferred Investor and the execution of the SPA and the SHA.
Preferred Investor: the Eligible Investor to be selected through the Tender
Procedure.
Request for Binding Offers: the process letter containing an overview of Phase
B and including instructions for the submission of the Binding Offers.
Seller: PPC being the sole owner of 100% of the existing shares in IPTO.
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SHA: the shareholders’ agreement to be entered into between HR and the
Preferred Investor.
Solemn Declaration: solemn declaration according to Law 1599/1986 (for
Interested Parties established in Greece) or sworn or solemn declaration before a
competent judicial or administrative authority or public notary according to the
law of the country of establishment of the Interested Party (for Interested Parties
not established in Greece) lawfully executed.
SPA: the share purchase agreement to be entered into between the Seller and the
Preferred Investor with respect to the Transaction.
Supporting Documents: the documents supporting the letter of Expression of
Interest.
Tender Procedure: the international public tender process by means of which
a 66% stake in IPTO is to be acquired by an investor to be selected through
the said procedure.
Transaction: the sale by PPC of 66% of the existing shares in IPTO to an
investor with the remaining 34% of the shares being acquired by HR.
Transaction Closing: the consummation of the Transaction, which shall take
place following satisfaction of all conditions precedent provided for in the SPA
and/or the Request for Binding Offers, and shall consist in the transfer of title
over 66% of the existing IPTO shares by PPC to the Preferred Investor.
3. Process overview
The purpose of this Invitation by the Seller is to solicit Expressions of Interest
from the Interested Parties wishing to participate in the Tender Procedure.
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The Tender Procedure will be conducted in two (2) phases as follows:
3.1. Phase A: Pre-qualification stage
Phase A (pre-qualification stage) of the Tender Procedure is regulated by the
terms and conditions set out in this Invitation. A summary briefing document
relating to IPTO and the Transaction can also be made available upon request.
Following review of the Invitation and the summary briefing document,
Interested Parties are invited to express their interest to participate in the Tender
Procedure by submitting an Expression of Interest as per Section III of this
Invitation.
The purpose of Phase A is the selection of Interested Parties that demonstrate
the legal, financial and technical capacity required for the acquisition of a
66% stake in IPTO.
Whether or not an Interested Party qualifies to participate in Phase B will be
determined by the Seller, on the basis of the requirements set out in Section II
and evidenced according to Section III of this Invitation.
Interested Parties will be notified in writing by the Financial Advisors of
whether or not they qualify to participate in Phase B.
3.2. Phase B: Request for Binding Offers
Phase B of the Tender Procedure will be regulated by the terms and conditions
set out in the Request for Binding Offers; the following description constitutes
only a general outline of Phase B.
Eligible Investors will be required to sign a confidentiality agreement in order
to participate in Phase B. Following execution of the confidentiality
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agreement, Eligible Investors will receive the Request for Binding Offers with
an overview of Phase B including instructions for the submission of Binding
Offers.
Eligible Investors shall also receive (amongst others), along with the Request for
Binding Offers, the following:
-
access to a virtual data room set up with respect to IPTO in order to carry
out their legal, financial and technical due diligence review;
- vendor due diligence reports;
- a draft SPA as well as a draft SHA.
Eligible Investors shall be required to provide their comments on the draft SPA
and the draft SHA within the time period which will be stipulated in the Request
for Binding Offers. Following review by the Seller of any comments submitted
by the Eligible Investors as per above, the final SPA and the final SHA will be
circulated to the Eligible Investors, on the basis of which the Eligible Investors
shall be required to submit, in writing, their Binding Offers for a 66% stake in
IPTO.
Following submission of the Binding Offers, the Seller shall review such offers
along with any supporting documentation and evaluate those in order to select
the Preferred Investor.
Following the selection of the Preferred Investor, the Seller and the Preferred
Investor shall enter into the SPA, while the HR and the Preferred Investor
shall enter into the SHA.
It is envisaged that Phase B will be concluded until end June 2014. The definite
timetable for Phase B will be described in detail in the Request for Binding
Offers.
The Transaction Closing shall be effected following obtainment of all
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necessary approvals from the competent authorities and in general following
satisfaction of all associated conditions precedent.
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II.
PRE – QUALIFICATION REQUIREMENTS
Interested Parties must meet all the requirements of the Invitation in order to
participate in the Tender Procedure. Interested Parties which do not satisfy the
requirements set out in the Invitation will be disqualified. In case of a
consortium and save to the extent provided otherwise in paragraphs 2.2.2 and
2.3.2 of this Section II, all the requirements must be met by each one and all of
the consortium members; for the avoidance of doubt, if any member fails to
meet the requirements, then the consortium will be disqualified as a whole.
An Interested Party may participate only in one (1) Expression of Interest.
Affiliated Entities shall be treated as a single legal entity for the purposes of
this restriction. A violation of this rule shall cause the disqualification of all
Interested Parties concerned.
Interested Parties qualified as Eligible Investors must comply with all the
requirements of the Invitation throughout the Tender Procedure.
1. Bidding consortia
Legal entities may form bidding consortia to participate in the Tender
Procedure provided that they meet the terms and conditions set out in this
paragraph 1 and in paragraph 2 of this Section II.
1.1.
Exclusivity
A member of a bidding consortium cannot participate directly or
indirectly in any other bidding consortium, nor may a member thereof
submit an individual Expression of Interest as an individual Interested Party. A
violation of this rule shall cause the disqualification of all Interested Parties
concerned.
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1.2.
Changes in the composition of a consortium
Until the lapse of the deadline for submission of the Expressions of Interest
changes in the composition of Interested Parties, which have already submitted
an Expression of Interest, can be effected as follows:
i. new consortia among Interested Parties can be formed;
ii. members of an Interested Party consortium may transfer part or all of
their participation to other members of the same consortium;
iii. third parties that have not participated in the Tender Procedure up to
then, can form a consortium with an Interested Party or join an
Interested Party consortium;
iv. Interested Parties may withdraw from the Tender Procedure and some or
all of the entities forming such Interested Party consortium may
submit an independent Expression of Interest or form a consortium
with an Interested Party or join an Interested Party consortium,
notwithstanding paragraph 1.1 of this Section.
The changes mentioned above are allowed provided that:
a. after the changes in the composition, such Interested Party continues to
fulfill all the requirements set out in Section II.2 below; and
b. the Seller has been notified of all changes thereof in writing. Any
notification to the Seller in relation to any change in the membership of
a consortium by way of entry of new members must be accompanied
by the necessary Supporting Documents as applicable.
Following the announcement of the Eligible Investors by the Seller the
participation of third parties (not being Eligible Investors) through
formation of consortia with Eligible Investors shall be allowed on the
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following conditions:
a.
the third parties should meet the Personal Situation Eligibility
Requirements prescribed in paragraph 2.1 of this Section II, as well as
the Financial Eligibility Requirements (on a proportionate basis)
prescribed in paragraph 2.2 of this Section II;
b.
the participation of third parties should not result to the participation of
the Technically Competent Member (as defined in paragraph 2.3.2 of
this Section II) in the consortium falling below 20%;
c.
the participation of third parties should be notified to the Seller no later
than thirty (30) days prior to the expiry of the deadline for submission
of Binding Offers; and
d.
the participation of third parties should be approved by the Seller.
Following the announcement of the Eligible Investors by the Seller the
formation of consortia among Eligible Investors shall be allowed on the
following conditions:
a.
the Financial Eligibility Requirements prescribed in paragraph 2.2 of
this Section II should continue to be met;
b.
the Technical Eligibility Requirements should be fulfilled by a member
with a participation of at least 20% in the consortium, as prescribed in
paragraph 2.3.2 of this Section II;
c.
the formation of consortia should be notified to the Seller no later than
thirty (30) days prior to the expiry of the deadline for submission of
Binding Offers; and
d.
the formation of consortia should be approved by the Seller.
In all the above cases the Seller has the right to ask for the submission of a
new or amended letter of Expression of Interest.
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1.3.
Joint Liability
All members of a consortium shall be jointly and severally liable to the Seller
in connection with all matters relating to the Tender Procedure and the
Transaction.
1.4.
Legal Formation
If a consortium is selected as Preferred Investor, it may be allowed or required
to establish a special purpose vehicle for the purposes of the Transaction. In
such case, the consortium members must participate in the special purpose
vehicle with the same percentage that they participate in the consortium.
2.
Eligibility Requirements
Interested Parties must fulfil and demonstrate cumulatively the requirements
set out in this paragraph 2. Expressions of Interest from any Interested Party
should be backed by the documentation specified in Section III of this
Invitation.
2.1. Personal Situation Eligibility Requirements
Each Interested Party must comply with the Personal Situation Eligibility
Requirements, as described below. In the case of consortia, each and every
member thereof must comply with the Personal Situation Eligibility
Requirements.
2.1.1. Interested Parties which have been convicted by final judgment, in any
jurisdiction, for criminal offences related to their professional / business
conduct, as specified below, are not permitted to participate in the Tender
Procedure and consequently shall be disqualified. This disqualification
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requirement shall apply also to their legal representative(s) and (if
applicable) the executive members of their Board of Directors.
Criminal offences related to the professional /business conduct include (but
are not limited to) embezzlement, extortion, forgery of documents, perjury,
fraudulent bankruptcy, horizontal agreements-cartels, and also:
-
participation in a criminal organization (as defined in article 2
paragraph 1 of the Council Framework Decision 2008/841/JHA of 24
October 2008 on the fight against organized crime – OJ L 300,
11.11.2008, p. 42–45);
-
corruption (as defined in article 3 paragraph 1 of the Council Act of
26 May 1997 drawing up, on the basis of Article K.3 (2) (c) of the
Treaty on European Union, the Convention on the fight against
corruption involving officials of the European Communities or
officials of Member States of the European Union - OJ C 195,
25.6.1997, p. 1–11 and article 2 paragraph 1 (a) of the Council
Framework Decision 2003/568/JHA of 22 July 2003 on combating
corruption in the private sector – OJ L 192, 31.7.2003, p. 54–56);
-
fraud (in the meaning of article 1 of the Convention on the protection
of the European Communities' financial interests, drawn up upon
Council Act of 26 July 1995 - OJ C 316, 27.11.1995, p. 48–57); and
-
money laundering (as defined in article 1 paragraph 2 of Directive
2005/60/EC of the European Parliament and of the Council of 26
October 2005 on the prevention of the use of the financial system for
the purpose of money laundering and terrorist financing – OJ L 309,
25.11.2005, p. 15–36).
2.1.2. In addition, Interested Parties shall be disqualified if:
i.
they are bankrupt or are being wound up, where their affairs are being
administered by the court, where they have entered into an
arrangement with creditors, where they have suspended business
activities or are in any analogous situation arising from a similar
procedure under national laws and regulations;
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ii.
they are the subject of proceedings for a declaration of bankruptcy, for
an order for compulsory winding up or administration by the court or
of an arrangement with creditors or of any other similar proceedings
under national laws and regulations;
iii.
they have been excluded from participating in public tender
procedures in Greece or in any other country by virtue of an
irrevocable decision of any public or judicial authority;
iv.
they have not fulfilled obligations relating to the payment of taxes
and/or social security contributions in accordance with the laws of the
country (or countries) in which they are established or with those of
Greece.
2.1.3. The Seller reserves the right to disqualify any Interested Party in cases
where there are concerns regarding the Interested Party’s prospective ability
to obtain any necessary regulatory approvals (indicatively: regulatory
certification under Article 9 of Directive 2009/72/EC and/or, where
applicable, Article 11 of Directive 2009/72/EC, and/or concentrations
control) within a reasonable period of time.
2.1.4. Interested Parties shall be disqualified if their registered office is not in
one of the following jurisdictions:
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Member – States of the European Union
-
Member – States of the European Economic Area
-
Swiss Confederation
-
United States of America
-
Canada
-
Japan
-
People’s Republic of China
-
Russian Federation
-
Australia
-
Kingdom of Bahrain
-
Federal Republic of Brazil
-
Hong Kong, Special Administrative Region of the People’s Republic
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of China
-
Republic of India
-
State of Israel
-
State of Kuwait
-
Malaysia
-
Sultanate of Oman
-
Republic of the Philippines
-
State of Qatar
-
Kingdom of Saudi Arabia
-
Republic of Singapore
-
Republic of Korea
-
United Arab Emirates
The same requirement shall apply also to any person having a direct
controlling interest in each Interested Party. The term control shall have the
meaning attributed to it in Article 3 of the Council Regulation (EC) No
139/2004 of 20 January 2004 on the control of concentrations between
undertakings, and, for the avoidance of doubt, shall include joint control.
2.2. Financial Eligibility Requirements
Each Interested Party must comply with the Financial Eligibility
Requirements as described below.
2.2.1. If the Interested Party is an entity preparing audited financial
statements, its average (consolidated if applicable) shareholders' equity
based on its annual audited (consolidated if applicable) financial statements
for its three (3) most recent financial years must equal Euro 350 million or
higher.
In the event an Interested Party or a consortium member has merged with or
acquired any businesses during the last three (3) financial years, the financial
qualification requirements may also be met at the discretion of the Interested
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Party on the basis of audited pro-forma financial statements, prepared on the
assumption that the merger or the acquisition took place at the beginning of
the three (3) year period.
If a legal entity has been incorporated for less than three (3) financial years,
the Seller will take into account only the years for which annual (or of a
greater duration) financial statements have been produced.
If the Interested Party is a fund manager or private equity firm it must have
active, committed and un-invested funds of at least Euro 350 million
according to the most recent audited financial statements (or consolidated
financial statements as the case may be) or its auditor reports or a relevant
certification verified by an auditor.
2.2.2. In the case of a consortium, the Financial Eligibility Requirements
above apply to each consortium member on a proportionate basis, taking into
account the relative percentage of each member in the consortium.
2.2.3. For the purposes of this paragraph 2.2 an Interested Party (or a member
thereof in case of a consortium) may rely on the financial capacity of an
Affiliated Entity in order to demonstrate fulfilment of the Financial
Eligibility Requirements, provided that the Interested Party proves to the
Seller that it will have at its disposal the resources necessary, by submitting a
binding commitment from such Affiliated Entity to financially support the
Interested Party, which shall include commitments that the said Affiliated
Entity shall (a) place all necessary financial resources at the disposal of the
Interested Party, and (b) incur full liability and assume responsibility towards
the Seller in case the conditions described in this paragraph are not met. The
said Affiliated Entity should also meet the Personal Eligibility Requirements
prescribed in paragraph 2.1 above and should provide the supporting
documents mentioned in paragraphs 1.2.1 and 1.2.2 of Section III below.
2.2.4. Without prejudice to 2.2.3 above, Interested Parties will not be able to
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rely on the financial capacity of any other third party or subcontractor in
order to demonstrate fulfilment of the Financial Eligibility Requirements.
2.3. Technical Eligibility Requirements
2.3.1. Each Interested Party must demonstrate evidence that it (or a
subsidiary company of the said Interested Party, as the term subsidiary
company is defined in Article 42e paragraph 5 of the Greek Law 2190/1920 on
societes anonymes) has at least one of the following:
i. experience of at least three years within the last five years in developing,
managing, operating and maintaining assets with similar characteristics to
those of IPTO (experience in the operation of Power Transmission
Networks), or
ii. experience of at least three years within the last five years in developing,
managing,
operating
and
maintaining
energy infrastructure
and/or
comparable regulated infrastructure assets.
2.3.2. In the case of consortia, the Technical Eligibility Requirements must
be fulfilled by a member with a participation of at least 20% in the
consortium (the “Technically Competent Member”).
2.3.3. With the exception of subsidiary companies mentioned in 2.3.1 above,
Interested Parties will not be able to rely on the technical capacity of any
other person/entity or subcontractor in order to demonstrate fulfillment of the
Technical Eligibility Requirements.
2.3.4. By way of derogation from the provisions of this paragraph 2.3, an
Interested Party shall not be required to fulfil the Technical Eligibility
Requirements provided herein on condition that said Interested Party shall
commit to fully assign IPTO’s management to HR for a period of at least 5
years.
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III.
THE EXPRESSION OF INTEREST
1. Contents of the Expression of Interest
The Expression of Interest Interested Parties are asked to submit should include
the following in the form and order outlined below:
1.1. A letter of Expression of Interest including the following and
presented in the order set out below:
a) The Interested Party's full name, address and registered offices, phone
and fax numbers, e-mail address, internet website address (if
available). Also confirmation that the Interested Party is acting on its
own account and not as agent.
b) Details of the composition of the Board of Directors or other relevant
administrative or corporate bodies.
c) Details on the shareholding or partnership structure of the
Interested Party, including details on the registered office of any person
having a controlling interest in the Interested Party.
d) In the case of a consortium, the information mentioned in (a), (b) and
(c) above for each member, the percentage of participation of each
member in the consortium, as well as the designation of the Technically
Competent Member.
e) Brief description of the Interested Party's strategic rationale for this
investment.
f) Details of the sources the Interested Party intends to use, and has access
to, in order to fund the Transaction, including debt and equity financing.
g) Details on any potential issues which the Interested Party envisages
in terms of process, timing, due diligence and other information
requirements in order to be able to submit a fully financed Binding
Offer.
h) Names and contact details of the Interested Party's primary contact
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person(s) as well as details of any advisors already appointed or intended
to be appointed.
i) In case the Interested Party wishes to make use of the derogation
provided in Section II paragraph 2.3.4: an explicit and unconditional
declaration that the Interested Party shall commit in a legally binding
manner to fully assign IPTO’s management to HR for a period of at
least 5 years.
1.2. Supporting Documents
The letter of Expression of Interest must be accompanied by the Supporting
Documents set out in paragraphs 1.2.1, 1.2.2 and 1.2.3. If the Interested Party is
a consortium, the documents set out in paragraphs 1.2.1 and 1.2.2 must be
submitted by all consortium members, while regarding the documents described
in paragraph 1.2.3 it is sufficient that they be submitted by the Technically
Competent Member.
1.2.1. Supporting Documents evidencing the fulfilment of the Personal
Situation Requirements
- A Solemn Declaration (attached herein as Annex 1), signed by the legal
representative(s), stating that:
a)
the Interested Party unconditionally accepts the terms of the Tender Procedure;
b) there are no matters which restrict the Interested Party from submitting the
Expression of Interest and the Interested Party's Board, investment committee
or any other body with equivalent decision-making authority has consented to
the Interested Party's response to the Invitation;
c)
the participation in the Tender Procedure takes place at the sole risk and
expense of the Interested Party and, moreover, the participation as such
or the dismissal of an Expression of Interest do not, in each case,
establish any right to compensation from the Seller or its advisors;
d) at the date of signing of the Solemn Declaration the Interested Party meets the
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applicable Eligibility Requirements set out in Section II above;
e)
the registered office of any person having a controlling interest in the
Interested Party is in one of the jurisdictions mentioned in Section II
subparagraph 2.1.4 hereof;
f)
at the date of signing of the Solemn Declaration all the information,
statements, declarations and Supporting Documents and other accompanying
documents submitted along with the letter of Expression of Interest, as well as
the letter of Expression of Interest, are true and accurate.
- A certificate of the company registry or other equivalent document(s) issued or
taken from the record of such company registry or equivalent agency, within the
last one (1) month before submission of the Expression of Interest, evidencing
the incorporation and registration of the company with the competent authorities
in the country of its current establishment and its existence as at the date of
issuance of the certificate. Same documentation with respect to any person
having a controlling interest in the Interested Party.
- Document(s) evidencing the representative authority of the company’s legal
representative(s) (e.g. Managing Directors, Executive Directors, etc.), as
currently in force, validly certified within the last three (3) months before
submission of the Expression of Interest by a competent public authority, a
notary public, a company secretary, a qualified and practicing lawyer or another
person legally empowered to such certification. The persons who sign the
Expression of Interest must have adequate authorization and the relevant
document(s) evidencing such authority must be included in the submitted
documents. If the laws of the country of establishment of the legal entity require
the publication of the identity of the persons representing the legal entity, a copy
of the publication must also be submitted (e.g. Government Gazette Bulletin).
- Confirmation of the legal entity’s shareholding structure including ultimate
beneficiaries holding 5% or more of its share capital. Such information is not
necessary with respect to the shareholders of legal entities listed on a stock
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exchange or regulated by a relevant financial authority in an EU or EEA or
OECD jurisdiction, provided that relevant certification by the respective stock
market /financial authority is furnished. In the case of fund managers or private
equity firms, also the relevant registration documentation, administration
agreement and/or equivalent document for the investment manager of the fund
needs to be provided.
1.2.2. Supporting Documents evidencing the fulfillment of the Financial
Eligibility Requirements
a) Legal entities preparing audited financial statements: financial
statements (or consolidated financial statements as the case may be)
of the three (3) most recent financial years audited by an
internationally reputable auditing firm.
b) If the Interested Party relies on the financial capacity of an Affiliated
Entity to meet the financial requirements, financial statements as
mentioned above under (a) of such Affiliated Entity –together,
where applicable, with consolidated accounts for the groupshould also be submitted.
c) If the Interested Party relies on the financial capacity of an Affiliated
Entity to meet the financial requirements, the Solemn Declaration
attached herein as Annex 3 must be submitted.
d) Fund managers or private equity firms: either the most recent
audited financial statements (or consolidated financial statements as
the case may be) or auditor reports or relevant certification verified
by an auditor and issued within thirty (30) days prior to the
Expression of Interest date, in all cases the auditor being an
internationally reputable audit firm. The Seller shall be entitled to
request the auditor’s report or certification mentioned in the previous
sentence, even if the Interested Party has already submitted its
financial statements.
e) Each Interested Party or member of a consortium must submit a reference
letter or letter of recommendation issued by a bank or credit institution
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established in an EU, EEA or OECD member state or member country (the
“Bank Reference Letter”). The Bank Reference Letter must be drafted
according to the template attached herein as Annex 4 (the “Bank Reference
Letter Template”) and specify the contact details of at least one (1) officer
or associate of the institution issuing the Bank Reference Letter who must
be contactable and able to provide details regarding the Interested Party (or
consortium member) upon request.
f) Any other relevant documentation or information that will
demonstrate the fulfilment of the financial eligibility requirements by
the Interested Party.
1.2.3. Supporting Documents evidencing the fulfillment of the Technical
Eligibility Requirements
Any relevant documentation or information that will demonstrate the fulfilment
of the technical eligibility requirements by the Interested Party.
2. General
The submission of the Supporting Documents set out in paragraphs 1.2.1, 1.2.2 and
1.2.3 of this Section III is mandatory and non-submission will result in such
Interested Party being disqualified from the Tender Procedure. The same will also
apply in case an Interested Party makes any false or inaccurate statement.
All documents and other evidence and declarations required hereunder must
address the corresponding requirement in sufficiently full and clear manner and
otherwise be in form and substance satisfactory to the Seller. The Seller reserves
the right to disqualify Interested Parties submitting documentation or declarations it
has reason to believe are fraudulent, falsified or forged, or in respect of which an
Interested Party is unwilling or unable to provide reasonably satisfactory
clarification.
Where any of the documents provided for in paragraphs 1.2.1, 1.2.2 and 1.2.3 of
this Section III are not issued in the country of incorporation and/or current
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establishment of the Interested Party, the latter is obliged to include a Solemn
Declaration as attached in Annex 2, verifying the inability of issuance. In the same
declaration, the Interested Party must confirm the facts that would have been
certified in the non-existing document, as required by this Invitation.
The Expression of Interest, including both the letter of Expression and the
Supporting Documents, should be signed by the legal representative(s) or other
specifically authorized representative(s) of each Interested Party. Signatures
on both the letter of Expression of Interest and the Solemn Declarations required in
this Invitation should be authenticated by any competent judicial or administrative
authority, notary public or other person legally empowered to such
authentication.
Consortia must submit a joint letter of Expression of Interest and full set of
Supporting Documents for each member, unless otherwise stated in this Invitation.
The Expression of Interest must be submitted in Greek or in English. In case that
the Supporting Documents are drafted in any language other than Greek or English,
they should be accompanied by an official translation in Greek or in English. In
case of any uncertainty, contradiction or discrepancy between the translation and
the original text, the Seller may request for clarifications and/or a new translation
within a short time frame.
All Supporting Documents must be submitted as originals or copies duly certified
by a competent public or judicial authority, a notary public, a qualified and
practising lawyer or another person legally empowered to such certification.
Where applicable all Supporting Documents must be apostilled according to the
Hague Convention.
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IV. CLOSING DATE AND SUBMISSION OF THE EXPRESSION OF
INTEREST
1.
Expressions of Interest (including the Supporting Documents) should be
submitted by e-mail and by post to HSBC Bank plc, using the following contact
details:
HSBC Bank plc
109-111 Messoghion Ave.
115 26, Athens
Greece
Αttention: Mr. Iakov Errera
E-mail: [email protected]
All e-mail submissions must be received not later than 17:00 (Greek time) on
May 9, 2014, otherwise the relating Expression of Interest will be disqualified.
In addition, a sealed envelope enclosing one (1) full set of hard copy versions of
the Expression of Interest (including the Supporting Documents), labeled
“Expression of Interest submission re: IPTO” must also be sent to HSBC Bank
plc at the above address, with the date of posting being not later than May 9,
2014. In the case the date of posting is later than May 9, 2014, the relating
Expression of Interest will be disqualified. In the case of any discrepancy
between the documents submitted by e-mail and those submitted by post, the
hard copy version will prevail.
2.
Any delay by accident or for reasons of force majeure shall not be
recognized as a justified reason for late receipt of the Expression of Interest. In
the case of late submission, as per the provisions hereof, the Expression of
Interest shall be returned without being unsealed.
23
3. Interested Parties may submit requests for clarifications regarding the
Expression of Interest by fax or e-mail until 17:00 (Greek time) on April 28,
2014. Such requests should be addressed to the representatives mentioned
below:
Mr. Iakov Errera
Mr. Theodoros Giatrakos
Tel: +30 210 696 1504
Τel: +44 (0)20 7986 8396
Fax: +30 210 691 1901
Fax: +44 (0)20 3364 2815
Email: [email protected]
Email: [email protected]
24
V.
LEGAL NOTICE
1. The Interested Parties' participation in the Tender Procedure shall mean
the unconditional acceptance of the terms and conditions of this Invitation on
their part.
2. The Seller may at any time require from the Interested Parties clarifications
and/or supplemental information on documents already duly submitted.
3. This Invitation has been prepared by, and is the sole responsibility of, the
Seller and is being directed only at persons to whom it may be lawfully
communicated under applicable law. It does not constitute any offering and, to
the extent permitted by law, the Seller and its advisors accept no responsibility
in relation to it.
In particular:
i.
Whilst the information contained in this document has been prepared in
good faith, it is not comprehensive and has not been verified independently
by the Seller, or its advisors, including, without limitation, HSBC Bank plc,
Citigroup Global Markets Limited, KLC Law Firm and Norton Rose
Fulbright.
ii.
No representation, warranty or undertaking, express or implied is or will
be made in relation to the accuracy, adequacy or completeness of this
document.
iii.
No responsibility or liability is or will be accepted by either the Seller
or its advisors, or any agents, servants, officers or affiliates of the Seller and
their advisors in respect of any error or misstatement in or omission from
this document. No person acquires any right or claim for compensation or
other from this Invitation or from their participation in the Tender
Procedure, against the Seller or its advisors for any reason or cause.
iv.
No information contained in this document forms the basis for any
warranty, representation or term of any contract by the Seller or any of its
advisors, with any third party.
v.
This document is not intended to form the basis of any investment
decision or investment recommendation made by the Seller or any of their
25
respective advisors and does not constitute the giving of investment advice
by the Seller or any of their respective advisors. Each person to whom this
document is made available must make their own independent assessment
of this document after making such investigation and taking such
professional advice, as they deem necessary.
vi.
The issuance of this document in no way commits the Seller to proceed
with the Transaction pursuant to the Tender Procedure or at all. The Seller
reserves the right to amend the terms of, postpone or terminate the Tender
Procedure without prior notice, to reject any or all of the Expressions of
Interest and to terminate discussions with any or all Interested Parties at
any time.
vii.
In furnishing this document, the Seller and its respective advisors
undertake no obligation to provide Interested Parties with access to any
additional information or to update the document or to correct any
inaccuracies therein which may become apparent.
viii.
For the purposes of this document, the Seller’s advisors are acting
exclusively as the advisors to the Seller and will not be responsible to
anyone other than the Seller, for work carried out by them in connection
with this document. Neither the Seller nor any of its advisors shall be liable
for any costs or expenses incurred by any Interested Party or other recipient
of this document in connection with the Tender Procedure.
ix.
All Expressions of Interest, responses, proposals and submissions
relating to this document and/or the Tender Procedure are made at the risk
of the Interested Parties.
x.
Interested Parties should be aware that EU or national legislation
applying to IPTO and PPC might change.
4. This Invitation may not be reproduced, copied or stored in any medium, in
whole or in part, without the prior written consent of the Seller, other than as
strictly required for the preparation of a response to this Invitation.
5. All Expressions of Interest become the property of the Seller upon receipt
by the Seller. Interested Parties give the Seller the right to replicate and
disclose the responses to this Invitation for any purpose in connection with
26
this Invitation.
6. If required by law, regulation or order of a court or regulatory body or
governmental authority, the Seller may be required to disclose certain
information and/or documents relating to Expressions of Interest.
7. The Courts of Athens, Greece, will have exclusive jurisdiction in relation
to any disputes arising from this document and Greek law shall be applicable.
27
ANNEX 1
SOLEMN DECLARATION
To: Public Power Corporation S.A.
I [we], the undersigned, acting as legal representative(s) of the legal entity under the corporate name [•], established
under the laws of [•], with company registration number [•] and registered offices at [•] [country - town - street - postal code],
with [•] [country] tax registration number [•] (the "Interested Party"), hereby declare in connection with the submission
by the Interested Party of an Expression of Interest for the acquisition of a stake of 66% in the Independent Power
Transmission Operator S.A. pursuant to the relevant Invitation issued by the Public Power Corporation S.A. on [date] that:
a.
the Interested Party unconditionally accepts the terms of the Tender Procedure;
b.
there are no matters which restrict the Interested Party from submitting the Expression of Interest, and the
Interested Party's Board [or investment committee or any other body with equivalent decision-making authority] has
consented to the Interested Party's response to the Invitation;
c.
the participation in the Tender Procedure takes place at the sole risk and expense of the Interested Party and
the participation as such or dismissal of an Expression of Interest does not, in each case, establish any right
to compensation from the Public Power Corporation S.A. or its advisors;
d. up to the date of signing the Solemn Declaration, the Interested Party and its legal representative(s) and the
executive members of its Board of Directors have not been convicted with a final judgment, in any
jurisdiction, for criminal offences related to their professional /business conduct, including (but not
limited to) embezzlement, extortion, forgery of documents, perjury, fraudulent bankruptcy, horizontal
agreements-cartels, participation in a criminal organization (as defined in article 2 paragra ph 1 of the
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organized crime –
OJ L 300, 11.11.2008, p. 42–45),
active corruption (as defined in article 3 paragraph 1 of the
Council Act of 26 May 1997 drawing up, on the basis of Article K.3 (2) (c) of the Treaty on European
Union, the Convention on the fight against corruption involving officials of the European Communities
or officials of Member States of the European Union - OJ C 195, 25.6.1997, p. 1–11 and article 2
paragraph 1 (a) of the Council Framework Decision 2003/568/JHA of 22 July 2003 on combating
corruption in the private sector – OJ L 192, 31.7.2003, p. 54–56),
fraud
(in
the
meaning
of
article 1 of the Convention on the protection of the European Communities' fina ncial interests, drawn
up upon Council Act of 26 July 1995 - OJ C 316, 27.11.1995, p. 48–57), and money laundering (as
defined in article 1 paragraph 2 of Directive 2005/60/EC of the European Parliament and of the Council
of 26 October 2005 on the prevention of the use of the financial system for the purpose of money
laundering and terrorist financing – OJ L 309, 25.11.2005, p. 15–36).
e. The Interested Party is not bankrupt nor is it being wound up, its affairs are not being administered by the court,
it has not entered into an arrangement with creditors, it has not suspended business activities, nor is it in any
analogous situation arising from a similar procedure under national laws and regulations; the Interested Party is
not the subject of proceedings for a declaration of bankruptcy, or for an order for compulsory winding up or
28
administration by the court or of an arrangement with creditors or of any other simila r proceedings under
national laws and regulations; the Interested Party has not been excluded from participating in public tender
procedures in Greece or in any other country by virtue of an irrevocable decision of any public or judicial
authority; the Interested Party has fulfilled all obligations relating to the payment of taxes and social security
contributions in accordance with the laws of the country [or countries] in which it is established, as well as with
those of Greece.
f. The Interested Party meets the applicable Eligibility Requirements set out in Section II of the Invitation.
g. The registered office of any person having a controlling interest in the Interested Party is in one of the
jurisdictions mentioned in Section II subparagraph 2.1.4 of the Invitation.
h. All the information, statements, declarations and Supporting Documents and other accompanying documents
the Interested Party has submitted together with the Expression of Interest, as well as the letter of Expression
of Interest, are true and accurate.
[Place],________[date]
Signature(s)
Verification of the signature(s)
29
ANNEX 2
SOLEMN DECLARATION
To: Public Power Corporation S.A.
I [we], the undersigned, acting as legal representative(s) of the legal entity under the corporate name [•], established
under the laws of [•], with company registration number [•] and registered offices at [•] [country - town - street - postal
code], with [•] [country] tax registration number [•] (the "Interested Party"), hereby declare in connection with
the submission by the Interested Party of an Expression of Interest for the acquisition of a stake of 66%, in the Independent
Power Transmission Operator S.A. pursuant to the relevant Invitation issued by the Public Power Corporation SA on
[date] that:
the [description of the document required in paragraphs 1.2.1 and/or 1.2.2 of Section ΙΙI of the Invitation] cannot be issued in
[●], country of incorporation, and/or in [●], country of current establishment of the Interested Party.
[The Interested Party should also confirm in this declaration the facts that would have been certified if the certificate
existed, as required by the Invitation]
_________ [Place],________[date]
Signature(s)
Verification of the signature(s)
30
ANNEX 3
SOLEMN DECLARATION
To: Public Power Corporation S.A.
I [we], the undersigned, acting as legal representative(s) of the legal entity under the corporate name [•], established
under the laws of [•], with company registration number [•] and registered offices at [•] [country - town - street - postal code],
with [•] [country] tax registration number [•] (the "Affiliated Company"), hereby declare in connection with the
submission by the legal entity under the corporate name [•], established under the laws of [•], with company
registration number [•] and registered offices at [•] [country - town - street - postal code], with [•] [country] tax
registration number [•] (the "Interested Party") of an Expression of Interest for the acquisition of a stake of 66% in the
Independent Power Transmission Operator S.A. pursuant to the relevant Invitation issued by the Public Power Corporation
S.A. on [date] that:
(a)
The Affiliated Company and the Interested Party are affiliated entities as defined in Article 42e para. 5 of the
Greek law 2190/1920 on societies anonymes,
(b)
the Affiliated Company shall place all necessary financial resources at the disposal of the Interested Party
with respect to the Transaction, and
(c)
the Affiliated Company shall incur full liability and assume responsibility towards the Seller in case the
eligibility requirements described in paragraph 2.2 of Section II of the Invitation are not met.
_________ [Place],________[date]
Signature(s)
Verification of the signature(s)
31
ANNEX 4
BANK REFERENCE LETTER
To: Public Power Corporation S.A.
From:
Address:
[bank legal name]
[bank address]
Contact Person:
E-mail:
Telephone:
[contact person name, title]
[contact person e-mail]
[contact person telephone]
[Letter date]
RE: EXPRESSION OF INTEREST FOR THE ACQUISITION OF A 66% PARTICIPATION
IN THE SHARE CAPITAL OF THE INDEPENDENT POWER TRANSMISSION
OPERATOR S.A.
To whom it may concern,
We refer to the request of [Interested party legal name] for the issuance of a reference letter to be
utilised in the context of its submission of an expression of interest for the acquisition of a 66%
participation in the share capital of the Independent Power Transmission Operator S.A., in
accordance with the terms and conditions set forth by the invitation to submit and expression of
interest issued by Public Power Corporation S.A. and dated [●].
[Interested party legal name] has been a client of ours since [month / year] and during this time it
has had a satisfactory banking relationship with us.
The above information is based on our experience of this banking relationship as at current date
and is given in confidence for your private use only, without any responsibility on the part of
[bank legal name] or its employees. This letter may only be used in the business context outlined
above and does not constitute a guarantee or any other obligation on the part of [bank legal
name].
[contact person name, title] designated as the contact person herein above is at the disposal of
Public Power Corporation S.A. and its financial and legal advisors in order to provide more
details on [Interested party legal name].
Sincerely,
[bank legal name]
[contact person signature]
[contact person name, title]
32
`