EXHIBIT 1
[LOGO OMITTED - ALLENS ARTHUR ROBINSON GROUP]
AGREEMENT
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FUTURIS CORPORATION LIMITED
AND
CP VENTURES LIMITED
AND
SHAMROCK HOLDINGS OF CALIFORNIA, INC.
ARTHUR ROBINSON & HEDDERWICKS
Stock Exchange Centre
530 Collins Street
Melbourne 3000 Australia
Tel 61 3 9614 1011
Fax 61 3 9614 4661
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Consents or approvals 4
2. ASSOCIATION 4
2.1 Co-operation in relation to interests in the Company 4
2.2 Joint purchasing opportunity following acquisition 5
2.3 No proposals without prior consultation 6
2.4 No public announcements without prior consultation 6
2.5 Termination by one party of Joint Arrangements 7
2.6 Automatic Termination of Joint Arrangements 7
3. EXERCISE OF OPTION 7
3.1 Exercise of Option by CP Ventures 7
3.2 Exercise of Option at the direction of Shamrock 9
3.3 Election to participate in Option exercise 12
4. REPRESENTATIONS AND WARRANTIES 13
4.1 Representations and warranties by Futuris and CP Ventures 13
4.2 Representations and Warranties by Shamrock 14
4.3 Undertakings by Futuris and CP Ventures 14
4.4 Compliance with law 14
4.5 Reliance on representations and warranties 14
4.6 Indemnity 15
4.7 Satisfaction of Option Agreement Conditions precedent 15
5. CONFIDENTIALITY 15
5.1 Confidentiality 15
5.2 Disclosure required by law 15
6. ASSIGNMENT 15
6.1 Assignment by Futuris and CP Ventures 15
6.2 Assignment by Shamrock 15
7. NOTICES 16
8. TERM AND TERMINATION 17
8.1 Term 17
8.2 Termination 17
8.3 No right of termination 18
8.4 Termination not to affect accrued rights 18
9. ENTIRE AGREEMENT 18
10. CONCILIATION 18
11. EFFECT OF REORGANISATION 19
12. AMENDMENT 19
13. NO WAIVER 19
14. FURTHER ASSURANCES 19
15. SEVERABILITY OF PROVISIONS 20
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES 20
17. NO MERGER 20
18. COSTS AND STAMP DUTY 20
19. GOVERNING LAW AND JURISDICTION 20
20. COUNTERPARTS 20
SCHEDULE 1 21
Option Agreement 21
<PAGE>
DATE 27 July 2000
PARTIES
1. FUTURIS CORPORATION LIMITED (ACN 004 336 636) of 35 Waymouth
Street, Adelaide, SA,5000 (FUTURIS).
2. CP VENTURES LIMITED (ACN 006 306 565) of 35 Waymouth Street,
Adelaide, SA,5000 (CP VENTURES).
3. SHAMROCK HOLDINGS OF CALIFORNIA, INC. of 4444 Lakeside
Drive, Burbank, California, USA (SHAMROCK).
RECITALS
A CP Ventures is a party to the Option Agreement.
B Futuris and Shamrock have agreed to act together in relation
to the Company on the terms and conditions of this Deed and
have also agreed that the Option Shares, if the Option is
exercised, should be split between them on the terms and
conditions of this Deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ASX means Australian Stock Exchange Limited.
CALL OPTION PERIOD means the period commencing on the date that CP
Ventures gives to the ASX the notice referred to in Clause 4.7 and
ending at the close of business on the date that is 12 months after
that date.
COMPANY means Pacific Dunlop Limited (ACN 004 085 330).
COMPANY SECURITIES means, from time to time, the Shares, all other
issued shares in the capital of the Company, all options for the
purchase of any unissued shares in the capital of the Company and any
other marketable securities (as defined in section 9 of the
Corporations Law) issued by the Company which are convertible into,
exchangeable for, or which otherwise confer, or may confer, any right
whatsoever on any person to acquire any shares in the capital of the
Company.
CORPORATIONS LAW means the Corporations Law of Victoria, or where
applicable, the Corporations Law of any other State or Territory of
Australia.
F OPTION CHARGE means the amount of interest at the rate of 12% per
annum calculated on the F Option Share Purchase Consideration.
Interest will accrue from day to day and is calculated on the basis of
a 365 day year and on the basis of the actual number of days lapsed
from the day the Option is exercised until the earlier of:
(a) the day that CP Ventures sends a notice exercising the F Option
under Clause 3.2(c); and
(b) the end of the Call Option Period,
(including the first day but excluding the last). Interest will be
compounded quarterly.
F OPTION PURCHASE PRICE has the meaning given in Clause 3.2(c)(iii).
F OPTION SHARES menase 60% of the Option Shares and the Rights
attaching to those Shares.
F OPTION SHARE PURCHASE CONSIDERATION has the meaning given in Clause
3.2(c)(iii).
OPTION means the option granted under Clause 2 of the Option
Agreement.
OPTION AGREEMENT means the option agreement dated 27 April 2000
between CP Ventures and BT Funds Management Limited ACN 002 916 458
(the OPTION GRANTOR), a true copy of which is set out in Schedule 1.
OPTION SHARES means 30,858,747 Shares (as adjusted in accordance with
the Option Agreement), being the Shares the subject of the Option.
PERMITTED ENCUMBRANCE means:
(a) a fixed or floating charge created prior to the date of this Deed
over all of the assets of Futuris, provided that such a charge
does not affect or restrict the ability to transfer legal and
beneficial title in the Option Shares to Shamrock or its nominee
in accordance with this Agreement at any time free of any
encumbrance; and
(b) a security interest created after the date of this Deed, provided
that such security interest does not affect or restrict the
ability to transfer legal and beneficial title in the Option
Shares to Shamrock or its nominee in accordance with this
Agreement at any time free of any encumbrance.
REORGANISATION has the same meaning as in the Option Agreement and
includes any other similar action in relation to the Company that a
party, acting in good faith, determines should be treated as a
Reorganisation.
RELATED BODY CORPORATE has the meaning given in the Corporations Law.
RELEVANT INTEREST has the meaning given by sections 608 and 609 of the
Corporations Law.
RIGHTS means all accretions, rights and benefits attaching to the
relevant Shares (including, without limitation, all rights to receive
dividends and any other distributions and to receive or subscribe for
shares, stock units, notes, options or other securities declared, paid
or issued by the Company).
S OPTION CHARGE means the amount of interest at the rate of 12% per
annum calculated on the S Option Share Purchase Consideration.
Interest will accrue from day to day and is calculated on the basis of
a 365 day year and on the basis of the actual number of days lapsed
from the day the Option is exercised until the earlier of:
(a) the day that Shamrock sends a notice exercising the S Option
under Clause 3.1(b); and
(b) the end of the Call Option Period,
(including the first day but excluding the last). Interest will be
compounded quarterly.
S OPTION PURCHASE PRICE has the meaning given in Clause 3.1(b)(iii).
S OPTION SHARES means 40% of the Option Shares and the Rights
attaching to those Shares.
S OPTION SHARE PURCHASE CONSIDERATION has the meaning given in Clause
3.1(b)(iii).
SHARES means fully paid ordinary shares in the capital of the Company.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a Clause, Schedule or Annexure is a reference to a
clause of, or a schedule or annexure to, this Deed.
(f) A reference to an agreement or document (including, without
limitation, a reference to this Deed) is to the agreement or
document as amended, varied, supplemented, novated or replaced,
except to the extent prohibited by this Deed or that other
agreement or document.
(g) A reference to a party to this Deed or another agreement or
document includes the party's successors, permitted substitutes
and permitted assigns (and, where applicable, the party's legal
personal representatives).
(h) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(i) A reference to conduct includes, without limitation, an omission,
statement or undertaking, whether or not in writing.
(j) A reference to an AGREEMENT includes any undertaking, deed,
agreement and legally enforceable arrangement, whether or not in
writing, and a reference to a document includes an agreement (as
so defined) in writing and any certificate, notice, instrument
and document of any kind.
(k) A reference to DOLLARS and $ is to Australian currency.
(l) The meaning of general words is not limited by specific examples
introduced by INCLUDING, or FOR EXAMPLE, or similar expressions.
(m) Nothing in this Deed is to be interpreted against a party solely
on the ground that the party put forward this Deed or any part of
it.
1.3 CONSENTS OR APPROVALS
If the doing of any act, matter or thing under this Deed is dependent
on the consent or approval of a party or is within the discretion of a
party, the consent or approval may be given or the discretion may be
exercised conditionally or unconditionally or withheld by the party in
its absolute discretion unless express provision to the contrary has
been made.
2. ASSOCIATION
2.1 CO-OPERATION IN RELATION TO INTERESTS IN THE COMPANY
(a) The parties agree that they will co-operate with each other with
a view to realising value in relation to any Shares which they
may hold or have interests in relation to (the JOINT OBJECTIVE).
Notwithstanding the foregoing, nothing in this Deed will require
a party to acquire any further Shares or exercise the Option
(otherwise than as expressly contemplated by Clause 3).
(b) Without limiting the generality of Clause 2.1(a):
(i) Each party agrees that, prior to exercising any votes
attaching to any Shares it or a Related Body Corporate
holds (including in relation to matters concerning the
composition of the board of the Company or the conduct of
its affairs), it will consult with the other parties and,
in good faith, seek to agree as to how the votes should be
exercised in order to further the Joint Objective. Failing
any agreement, each party that has complied with this
Clause 2.1(b) will be free to vote their Shares as they
see fit.
(ii) If a party who, alone or together with its Related Bodies
Corporate, is the beneficial owner of 3% or more of the
Shares wishes to use those Shares for the purpose of
requisitioning a meeting of the shareholders of the
Company in accordance with the Corporations Law to further
the Joint Objective, each other party agrees to use the
Shares it and its Related Bodies Corporate beneficially
own to assist in requisitioning the meeting. For the
avoidance of doubt, while the Option remains unexercised
the Shares the subject of the Option are not taken into
account in determining whether a party beneficially owns
3% of the Shares.
(iii) If Shamrock is able to appoint two or more nominees to the
board of the Company and Shamrock requests that the chief
executive officer of Futuris be a nominee, then Futuris
will use its reasonable endeavours to procure that Futuris'
chief executive officer is appointed to the board of the
Company.
2.2 JOINT PURCHASING OPPORTUNITY FOLLOWING ACQUISITION
(a) Subject to this Clause 2.2, each of Futuris and Shamrock agrees
that if during the Joint Purchasing Period it or any of its
Related Bodies Corporate purchases or otherwise acquires any
Company Securities (otherwise than as permitted by Clause 3), it
will, by 1100am the next business day, send a notice (a
PURCHASE NOTICE) to the other specifying the number of Company
Securities purchased or acquired and the purchase consideration
(including any stamp duty or other acquisition costs) for which
the Company Securities were purchased or acquired.
(b) The party who receives the Purchase Notice (the NOTICE RECEIVER)
may, unless the Notice Receiver has previously received a
Purchase Notice and not exercised its joint purchasing rights in
relation to that Notice in accordance with this Clause, within 24
hours after the Purchase Notice has been sent serve a notice
(a JOINT PURCHASING NOTICE) on the sender of the notice (the
NOTICE SENDER) that the Notice Receiver wishes to purchase or
acquire one half of the Shares specified in the Purchase Notice.
(c) Provided that the Joint Purchasing Notice is received by the
Notice Sender within 24 hours after the Purchase Notice is sent
and provided that the Notice Receiver provides the Notice Sender
with the funds to enable the purchase and settlement of one half
of the Shares specified in the Purchase Notice (including one
half of the stamp duty and costs specified in the Purchase Notice
and all of the additional stamp duty or costs (if any)
associated with the Notice Receiver exercising its rights under
this Clause 2.2) as and when those funds are required to effect
settlement (or if settlement has occurred or to the extent that
those funds are not required to effect settlement, to enable
immediate reimbursement to the Notice Sender), the Notice
Receiver will be entitled to acquire one half of the Shares the
subject of the Purchase Notice and the Notice Sender will do all
things necessary to ensure that one half of those Shares are
registered in the name of the Notice Receiver or a nominee
notified to the Notice Sender by the Notice Receiver.
(d) A party is not obliged to send a Purchase Notice pursuant to
Clause 2.2(a) if the securities acquired are (or would convert
into) less than 0.5% of the total issued capital of the Company.
In this Clause, the exercise of an option is taken to be the
conversion of that option.
(e) In this Clause 2.2, the JOINT PURCHASING PERIOD means the period
commencing on the date of this Deed and ending on the earlier of:
(i) if either Futuris or Shamrock (or any of their respective
Related Bodies Corporate) announces an intention to make a
takeover bid (within the meaning of the Corporations Law)
in relation to the Shares, the date of that announcement;
(ii) the date on which the obligations under the Clause 2 are
terminated pursuant to Clause 2.5 by one party giving
notice to the other parties;
(iii) the date on which the obligations under this Clause 2 are
terminated pursuant to Clause 2.6; and
(iv) the date that is 12 months after the date of this Deed.
(f) Without limiting the remainder of this Clause, each of
Futuris and Shamrock agrees that as soon as practicable after the
end of each day during which it has, or any of its Related Bodies
Corporate have, acquired any Company Securities (the RELEVANT
DAY), it will send a notice to the other party setting out the
details of the Company Securities acquired, or any relevant
interest in any Company Securities acquired, during that day. The
notice to be given pursuant to this Clause 2.2(f) must be given
no later than 11.00am on the next business day after the
relevant day.
2.3 NO PROPOSALS WITHOUT PRIOR CONSULTATION
(a) Each party undertakes that it will not directly or indirectly
make any proposal to any third party (including the Company), or
make any public announcement in respect of any proposal, in
relation to the Company, the Shares or the assets or affairs of
the Company without first taking all reasonable steps to consult
with the other parties. Each party agrees not to seek to have the
other parties waive this Clause, and will not directly or
indirectly communicate to any third party (including the Company)
any proposal in relation to the Company, the Shares or the assets
or affairs of the Company which it would or might contemplate or
undertake but for the restriction contained in this Clause, or
that it has any interest in making any such proposal. Each party
undertakes to procure that its Related Bodies Corporate do not do
anything which that party is prohibited by this Clause from
doing.
(b) If the parties agree to jointly proceed with a proposal in
relation to the Company, the Shares or the assets or affairs of
the Company, the costs of such a proposal will be borne equally
by Futuris and Shamrock.
2.4 NO PUBLIC ANNOUNCEMENTS WITHOUT PRIOR CONSULTATION
(a) The parties will agree upon the form and content of a joint media
announcement to be issued by them following the execution of this
Deed. Each party undertakes that neither it nor any of its
Related Bodies Corporate will issue any media announcements or
release in relation to the execution of this Deed other than the
joint media announcement agreed to under this Clause 2.4(a).
(b) Without limiting Clause 2.4(a), each of Futuris and Shamrock
undertakes that before it or any of its Related Bodies Corporate
(or any representative of any of the foregoing) makes any public
statement or announcement in relation to the Company, the affairs
of the Company, the Company Securities, this Deed or the subject
matter of this Deed, it will make all reasonable endeavors to
consult with the other party and disclose to it the form and
substance of the proposed statement or announcement. This Clause
2.4(b) does not apply to statements or comments made following
the release of the joint media announcement referred to in Clause
2.4(a), provided that such statements or announcements are
consistent with the joint media announcement.
2.5 TERMINATION BY ONE PARTY OF JOINT ARRANGEMENTS
At any time after the date that is six months after the date of this
Deed, any party may terminate the obligations in this Clause 2 by
written notice to the other parties. Such termination will not affect
any rights accruing at the date of termination. The termination of the
obligations under this Clause 2 does not affect the rights and
obligations of the parties under any other provision of this Deed.
2.6 AUTOMATIC TERMINATION OF JOINT ARRANGEMENTS
The parties agree that if the acquisition of any relevant interest in
a Share or of any Share by any of them is contrary to the Corporations
Law or the Foreign Acquisitions and Takeover Act 1974 (Cth),
immediately prior to the completion of such acquisition the
obligations in this Clause 2 shall be terminated automatically without
the necessity of any notice being given by any party. Such termination
will not affect any rights accruing at the date of termination. The
termination of the obligations under this Clause 2 does not affect the
rights and obligations of the parties under any other provision of
this Deed.
3. EXERCISE OF OPTION
3.1 EXERCISE OF OPTION BY CP VENTURES
(a) CP Ventures must not exercise or purpose to exercise the Option
unless, at least 72 hours before exercising the Option, CP
Ventures sends a notice by fax to Shamrock that it intends to
exercise the Option (such notice must include the intended date
of exercise and, if CP Ventures intends to nominate a Substitute
Purchaser (within the meaning of the Option Agreement), being a
Related Body Corporate of CP Ventures, the details of the
Substitute Purchaser). CP Ventures must not exercise, or purport
to exercise, the Option before the expiration of the 72 hour
period. CP Ventures agrees with Shamrock that, upon exercise of
the Option, it will not nominate a Substitute Purchaser (within
the meaning of the Option Agreement) other than a Related Body
Corporate of CP Ventures who has been notified to Shamrock in
accordance with this Clause 3.1(a).
(b) Unless Clause 3.3 applies, following the expiry of the 72 hour
period, CP Ventures must exercise the Option in accordance with
its notice under Clause 3.1(a) and upon exercise, CP Ventures
grants Shamrock an irrevocable option to purchase, at any time
during the remainder of the Call Option Period, the S Option
Shares (the S OPTION) on the following terms:
(i) the S Option may be exercised by Shamrock sending a notice
by fax to CP Ventures before the end of the Call Option
Period, notifying CP Ventures that Shamrock wishes to
exercise the S Option;
(ii) the S Option may be exercised only in respect of all
the S Option Shares;
(iii) the purchase consideration for the S Option Shares (the S
OPTION PURCHASE PRICE) will be equal to the aggregate of:
(A) the consideration paid by CP Ventures (or its
nominee) under the Option Agreement to acquire the S
Option Shares (being 40% of the Purchase
Consideration as defined in the Option Agreement)
(the S OPTION SHARE PURCHASE CONSIDERATION); and
(B) the S Option Charge; and
(iv) upon receipt of the notice of exercise and the S Option
Purchase Price, CP Ventures must immediately transfer, or
procure the transfer of, the S Option Shares to Shamrock
or to a nominee specified by Shamrock.
(c) If CP Ventures exercises the Option and in accordance with Clause
3.1(a) nominates a Related Body Corporate of CP Ventures as the
Substitute Purchaser (within the meaning of the Option
Agreement), CP Ventures must procure that, immediately before the
S Option Shares are held by the Substitute Purchaser, the
Substitute Purchaser:
(i) grants an option to Shamrock on the same terms and
conditions as the S Option and executes such
documentation as Shamrock requires to effect and record
that option; and
(ii) covenants in favour of Shamrock that it will not transfer,
assign, encumber or otherwise dispose of the S Option
Shares while that option continues.
(d) If Shamrock exercises the S Option in accordance with this Deed:
(i) Shamrock must immediately pay to CP Ventures an amount
equal to 40% of the stamp duty paid by CP Ventures on the
transfer of the Option Shares by the Option Grantor to CP
Ventures upon the exercise of the Option (and, for the
avoidance of doubt, the parties acknowledge that if upon
exercise of the Option CP Ventures nominated a Substitute
Purchaser in accordance with the Option Agreement,
Shamrock is only liable to pay CP Ventures an amount equal
to 40% of the stamp duty which would have been payable by
CP Ventures had no Substitute Purchaser been nominated and
the Option Shares were transferred from the Option Grantor
to CP Ventures); and
(ii) Shamrock must bear all stamp duty that may be payable in
connection with the transfer of the S Option Shares to
Shamrock or its nominee.
(e) If Shamrock does not exercise the S Option in accordance with
this Deed before the end of the Call Option Period, Shamrock
must, upon demand by CP Ventures, pay to CP Ventures an amount
equal to the following:
A - B
where A is the aggregate of:
(i) the S Option Share Purchase Consideration;
(ii) the S Option Charge; and
(iii) an amount equal to 40% of the stamp duty payable had
the Option Shares been transferred to CP Ventures; and
B is the fair market value of the S Option Shares at the end
of the Call Option Period, calculated by multiplying the
number of S Option Shares by the weighted average of the
prices at which Shares are traded in the ordinary course on
the ASX over the ten trading days ending on the last day of
the Call Option Period. If the Shares are suspended or not
listed for quotation on the ASX during all of that ten day
period, the fair market value of the S Option Shares must be
determined by an independent expert agreed to by the parties
or, failing such agreement within 5 days, as chosen by the
President for the time being of the Australian Institute of
Chartered Accountants.
If B is greater than or equal to A, no payment is to be made
under this Clause 3.1(e) by any party.
(f) Prior to the exercise of the S Option, the votes attaching to the
S Option Shares may, subject to Clause 2.1, be exercised as the
holder of those Shares sees fit and the holder of those Shares
will be entitled to all Rights attaching to those Shares.
3.2 EXERCISE OF OPTION AT THE DIRECTION OF SHAMROCK
(a) At any time during the Call Option Period, Shamrock may send a
notice by fax to CP Ventures directing CP Ventures to exercise
the Option at the time specified in the notice (such time being
no earlier than 72 hours after the time the notice is given).
(b) Following receipt of the notice under Clause 3.2(a) from
Shamrock, unless Clause 3.3 applies, CP Ventures must:
(i) exercise the Option in accordance with the Option Agreement
and the notice from Shamrock; and
(ii) do all things necessary to ensure that the Option Shares are
transferred free from any encumbrance to Shamrock or to a
nominee specified by Shamrock, including, without
limitation, nominating the person specified by Shamrock as
the Substitute Purchaser (within the meaning of the Option
Agreement), being the person to whom the Option Shares are
to be transferred by the Option Grantor,
provided that Shamrock first provides CP Ventures with, or makes
available to CP Ventures, the Purchase Consideration (within the
meaning of the Option Agreement), together with any applicable
stamp duty, for the purpose of exercising, and to exercise, the
Option.
(c) Unless Clause 3.3 applies, upon exercise of the Option and the
transfer of the Option Shares in accordance with Shamrock's
notice to Shamrock or its nominee, Shamrock grants CP Ventures an
irrevocable option to purchase, at any time during the remainder
of the Call Option Period, the F Option Shares (the F OPTION) on
the following terms:
(i) the F Option may be exercised by CP Ventures sending a
notice by fax to Shamrock before the end of the Call Option
Period, notifying Shamrock that CP Ventures wishes to
exercise the F Option;
(ii) the F Option may be exercised only in respect of all the F
Option Shares;
(iii)the purchase consideration for the F Option Shares (the F
OPTION PURCHASE PRICE) will be equal to the aggregate of:
(A) the consideration paid or provided by Shamrock (or its
nominee) to acquire the F Option Shares (being 60% of
the Purchase Consideration as defined in the Option
Agreement) (the F OPTION SHARE PURCHASE
CONSIDERATION); and
(B) the F Option Charge; and
(iv) upon receipt of the notice of exercise and the F Option
Purchase Price, Shamrock must immediately transfer, or
procure the transfer of, the F Option Shares to CP Ventures
or a nominee specified by CP Ventures.
(d) If Shamrock notifies CP Ventures that the Substitute Purchaser
(within the meaning of the Option Agreement) is to be a nominee
of Shamrock, Shamrock must procure that, immediately before the F
Option Shares are held by the Substitute Purchaser, the
Substitute Purchaser:
(i) grants an option to CP Ventures on the same terms and
conditions as the F Option and executes such documentation
as CP Ventures requires to effect and record that option;
and
(ii) covenants in favour of CP Ventures that it will not
transfer, assign, encumber or otherwise dispose of the F
Option Shares while that option continues.
(e) If CP Ventures exercises the F Option in accordance with this
Deed:
(i) CP Ventures must immediately reimburse Shamrock an amount
equal to 60% of any stamp duty incurred by Shamrock (or its
nominee) in connection with the transfer of the Option
Shares to Shamrock (or its nominee) upon the exercise of the
Option (including any amount paid by Shamrock to CP Ventures
pursuant to Clause 3.2(b)); and
(ii) CP Ventures must bear all stamp duty that may be payable in
connection with the transfer of the F Option Shares to CP
Ventures or its nominee.
(f) If CP Ventures does not exercise the F Option in accordance with
this Deed before the end of the Call Option Period, CP Ventures
must, upon demand, pay to Shamrock an amount equal to the
following:
A - B
where A is the aggregate of:
(i) the F Option Share Purchase Consideration;
(ii) the F Option Charge; and
(iii)an amount equal to 60% of the stamp duty payable had
the Option Shares been transferred to CP Ventures; and
B is the fair market value of the F Option Shares at the end
of the Call Option Period, calculated by multiplying the
number of F Option Shares by the weighted average of the
prices at which Shares are traded in the ordinary course on
the ASX over the ten trading days ending on the last day of
the Call Option Period. If the Shares are suspended or not
listed for quotation on the ASX during all of that ten day
period, the fair market value of the F Option Shares must be
determined by an independent expert agreed to by the parties
or, failing such agreement within 5 days, as chosen by the
President for the time being of the Austrialian Institute of
Chartered Accountants.
If B is greater than or equal to A, no payment is to be made
under this Clause 3.2(f) by any party.
(g) Prior to the exercise of the F Option, the votes attaching to the
F Option Shares may, subject to Clause 2.1, be exercised as the
holder of those Shares sees fit and the holder of those Shares
will be entitled to all Rights attaching to those Shares.
3.3 ELECTION TO PARTICIPATE IN OPTION EXERCISE
(a) This Clause 3.3 applies if either:
(i) within 48 hours after CP Ventures has notified Shamrock
under Clause 3.1(a), Shamrock sends a notice by fax that
Shamrock wishes to acquire the S Option Shares; or
(ii) within 48 hours after Shamrock has directed CP Ventures
under Clause 3.2(a) to exercise the Option, CP Ventures
sends a notice by fax to Shamrock notifying Shamrock that CP
Ventures wishes to acquire the F Option Shares.
(b) Where this Clause 3.3 applies:
(i) the parties will determine whether the Option Shares will be
transferred to CP Ventures or a nominee agreed to by the
parties (in either case, the BARE TRUSTEE) to be held on
trust, as bare trustee, for CP Ventures or its nominee in
relation to the F Option Shares, and for Shamrock or its
nominee in relation to the S Option Shares;
(ii) the Purchase Consideration (within the meaning of the Option
Agreement) will be funded by each of CP Ventures and
Shamrock as to their respective proportionate interests in
the Option Shares; so that CP Ventures will provide, or
procure the provision of, 60% of the Purchase Consideration
(within the meaning of the Option Agreement) and Shamrock
will provide, or procure the provision of, 40% of the
Purchase Consideration (within the meaning of the Option
Agreement) to fund the acquisition of the Option Shares by
the Bare Trustee;
(iii)CP Ventures must exercise, or must procure the exercise of,
the Option in accordance with the Option Agreement and CP
Ventures and Shamrock must take all steps necessary (and
which are within their control) to procure that:
(A) the Option Shares are transferred to the Bare Trustee
to be held by it in accordance with Clause 3.3(b)(i);
and
(B) the F Option Shares, and the Rights attaching to those
Shares, are transferred to CP Ventures or its nominee
and the S Option Shares, and the Rights attaching to
those Shares, are transferred to Shamrock or its
nominee; and
(iv) to the extent that any stamp duty is incurred by any party
on the transfers referred to in this Clause 3.3, any stamp
duty will be borne by CP Ventures as to 60% and Shamrock as
to 40%.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES BY FUTURIS AND CP VENTURES
Each of Futuris and CP Ventures represents and warrants to Shamrock as
follows:
(a) each of Futuris and CP Ventures have full power, authority and
legal right and the necessary consents to enter into this Deed
and perform its obligations hereunder and this Deed is valid and
binding on it;
(b) the Option Agreement is valid and subsisting and enforceable in
accordance with its terms;
(c) the particulars of the Option Agreement set out in Schedule 1 are
true and correct in every respect, and set out all of CP
Ventures' rights in relation to the subject matter of the Option
Agreement;
(d) CP Ventures has not exercised the Option;
(e) CP Ventures' right, title and interest under the Option Agreement
does not infringe the rights of any third party and it is not
aware of any dispute regarding such rights;
(f) CP Ventures' right, title and interest under the Option Agreement
is not subject to any mortgage, charge, pledge, lien or any
interest or any rights or claims or any encumbrances of any other
person, except as expressly disclosed in writing to Shamrock
prior to the date of this Deed;
(g) other than as expressly provided for in this Deed, there is no
contract, arrangement or understanding that Futuris or one of its
Related Bodies Corporate is a party to or is bound by which in
any way binds or purports to bind Shamrock, or hinders in any way
the actions Shamrock may take in relation to the Company, the
Shares or the assets or affairs of the Company;
(h) neither Futuris or any of its Related Bodies Corporate have
acquired a relevant interest in, or purchased, any Shares in the
past four months other than by virtue of entering into the Option
Agreement;
(i) CP Ventures is not in breach of or default under, or anticipatory
breach of, the Option Agreement; and
(j) other than having a relevant interest in the Option Shares,
neither Futuris nor any Related Body Corporate of Futuris has a
relevant interest in any Shares.
4.2 REPRESENTATIONS AND WARRANTIES BY SHAMROCK
Shamrock represents and warrants to Futuris and CP Ventures that:
(a) it has full power, authority and legal right and the necessary
consents to enter into this Deed and perform its obligations
hereunder and this Deed is valid and binding on it;
(b) other than as expressly provided for in this Deed, there is no
contract, arrangement or understanding that Shamrock or one of
its Related Bodies Corporate is a party to or is bound by which
in any way binds or purports to bind Futuris, or hinders in any
way the actions Futuris may take in relation to the Company, the
Shares or the assets or affairs of the Company; and
(c) Shamrock has a relevant interest in not less than 3% of the
Shares (based on the number of Shares on issue as disclosed to
the ASX by the Company).
4.3 UNDERTAKINGS BY FUTURIS AND CP VENTURES
(a) Futuris covenants in favour of Shamrock that it will procure that
CP Ventures complies with its obligations under this Deed and
that CP Ventures is, and during the term of this Deed will
remain, a wholly owned subsidiary of Futuris.
(b) CP Ventures covenants in favour of Shamrock that except as
expressly permitted by this Deed or with the written consent of
Shamrock, it will not, and it will procure that none of its
Related Bodies Corporate:
(i) exercise or purport to exercise the Option or otherwise
deal with, assign, dispose of, or encumber the Option
Agreement or any right, title or interest under the Option
Agreement;
(ii) amend, purport to amend or waive its rights under the
Option Agreement; or
(iii) deal with in any way or encumber the Option Shares
otherwise than by a Permitted Encumbrance.
4.4 COMPLIANCE WITH LAW
Each party covenants in favour of the others that it will comply with
all relevant laws of Australia and the United States of America in
relation to the matters contemplated by this Deed.
4.5 RELIANCE ON REPRESENTATIONS AND WARRANTIES
(a) Futuris acknowledges that Shamrock has entered into this Deed in
reliance on the representations and warranties in this Clause 4.
(b) Shamrock acknowledges that Futuris and CP Ventures have entered
into this Deed in reliance on the representations and warranties
in this Clause 4.
4.6 INDEMNITY
(a) Futuris indemnifies Shamrock against any claim, loss, charge,
liability, cost and expense that may be incurred or sustained by
Shamrock as a result (directly or indirectly) of:
(i) a breach of any of the representations and warranties
given by Futuris or CP Ventures in this Deed; or
(ii) a breach by Futuris or CP Ventures of this Deed.
(b) Shamrock indemnifies Futuris and CP Ventures against any claim,
loss, charge, liability, cost and expense that may be incurred or
sustained by them as a result (directly or indirectly) of;
(i) a breach of any of the representations and warranties
given by Shamrock in this Deed; or
(ii) a breach by Shamrock of this Deed.
4.7 SATISFACTION OF OPTION AGREEMENT CONDITIONS PRECEDENT
Immediately following the execution of this Deed, CP Ventures agrees
to give to the Company and to ASX the notice required to be given by
it by Part 6C.1 of the Corporations Law.
5. CONFIDENTIALITY
5.1 CONFIDENTIALITY
Subject to Clauses 4.7 and 5.2, each party will, and will ensure that
its Related Bodies Corporate and the employees, agents and advisors of
it and its Related Bodies Corporate will, keep all acts, matters and
things concerning, or in any way related to, this Deed confidential
and shall not disclose the same to anyone other than the persons
previously referred to in this Clause.
5.2 DISCLOSURE REQUIRED BY LAW
Clause 5.1 shall not apply to any disclosure:
(a) required to be made by law; or
(b) made with the prior consent of the other parties.
6. ASSIGNMENT
6.1 ASSIGNMENT BY FUTURIS AND CP VENTURES
Neither Futuris nor CP Ventures may assign or transfer any of their
rights or obligations under this Deed.
6.2 ASSIGNMENT BY SHAMROCK
Shamrock may assign or transfer all or any of its rights or
obligations under this Deed to a Related Body Corporate of Shamrock or
to an entity in which Shamrock directly or indirectly has an equity
interest of at least 40%, provided that any such assignment will not
relieve Shamrock of its obligations under this Deed, but performance
by the assignee will pro tanto discharge Shamrock from liability for
performance of those obligations.
7. NOTICES
Any notice, demand, consent or other communication (the NOTICE) given
or made under this Deed:
(a) must be in writing and signed by a person duly authorised by the
sender;
(b) must be delivered to the intended recipient by prepaid post (if
posted to an address in another country, by registered first
class airmail) or by hand or fax to the address or fax number
below or the address or fax number last notified by the intended
recipient to the sender:
(i) to Futuris: 35 Waymouth Street, Adelaide, SA
Attention: The Company Secretary
Fax No: 618 8425 4621
with a copy to:
Bennett & Co
1st Floor, Griffin Centre
28 The Esplanade
Perth WA 6000
Attention: Mr. Martin Bennett
(ii) to CP Ventures: 35 Waymouth Street, Adelaide, SA
Attention: The Company Secretary
Fax No: 618 8425 4621
with a copy to:
Bennett & Co
1st Floor, Griffin Centre
28 The Esplanade
Perth WA 6000
Attention: Mr. Martin Bennett
(iii) to Shamrock: 4444 Lakeside Drive, Burbank,
California, United States of America,
91505
Attention: Mr. Robert Moskowitz
Fax No: 0015 1 818 842 3142
with a copy to:
Arthur Robinson & Hedderwicks
Level 27, 530 Collins Street
Melbourne, Australia, Victoria 3000
Attention: Mr. Robert Simkiss; and
(c) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, two business days after
the date of posting (if posted to an address in the same
country) or 10 business days after the date of posting (if
posted to an address in another country); and
(iii) in the case of fax, on receipt by the sender of a
transmission control report from the despatching machine
showing the relevant number of pages and the correct
destination fax machine number or name of recipient and
indicating that the transmission has been made without
error,
but if the result is that a Notice would be taken to be given or
made on a day that is not a business day in the place to which
the Notice is sent or is later than 4.00pm (local time) it will
be taken to have been duly given or made at the commencement of
business on the next business day in that place.
8. TERM AND TERMINATION
8.1 TERM
This Deed will terminate on the expiry of the Option if the Option is
not exercised. If the Option is exercised, then this Deed will
terminate on the date which is one month after the end of the Call
Option Period.
8.2 TERMINATION
Subject to Clause 8.3, either Futuris or Shamrock may terminate this
Deed immediately by notice to the other party if:
(a) the other party commits a material breach of this Deed (unless
the breach is capable of remedy, in which case if the other party
fails to remedy the breach within seven days after required in
writing to do so);
(b) the other party:
(i) stops or suspends or threatens to stop or suspend payment
of all or a class of its debts;
(ii) is insolvent within the meaning of section 95A of the
Corporations Law;
(iii) must be presumed by a court to be insolvent by reason of
section 459C(2) of the Corporations Law;
(iv) fails to comply with a statutory demand (within the
meaning of section 459F(1) of the Corporations Law) which
has not been set aside within 21 days;
(v) has an administrator appointed over all or any of its
assets or undertaking or any step preliminary to the
appointment of an administrator is taken;
(vi) has a controller within the meaning of section 9 of the
Corporations Law or similar officer appointed to all or
any of its assets or undertaking; or
(vii) has an application or order made, proceedings commenced, a
resolution passed or proposed in a notice of meeting, an
application to a court made or other steps taken against
or in respect of it (other than frivolous or vexatious
applications, proceedings, notices or steps) for its
winding up, deregistration or dissolution or for it to
enter an arrangement, compromise or composition with or
assignment for the benefit of its creditors, a class of
them or any of them; or
(viii) in relation to a party which is not incorporated under the
Corporations Law, an event similar to or equivalent to any
of the events referred to in paragraphs (i) to (vii)
inclusive occurs under any law applicable to or to which
such party is subject.
Subject to Clause 8.3, Shamrock may terminate this Deed immediately by
notice to Futuris if CP Ventures commits a material breach of this
Deed (unless the breach is capable of remedy, in which case if CP
Ventures fails to remedy the breach within seven days after being
required in writing to do so), or if any event referred to in
paragraph (b) above occurs in relation to CP Ventures.
8.3 NO RIGHT OF TERMINATION
No party may terminate this Deed for a breach of Clause 2.1(a).
8.4 TERMINATION NOT TO AFFECT ACCRUED RIGHTS
The termination of this agreement does not affect any accrued rights
or remedies of any party.
9. ENTIRE AGREEMENT
This Deed contains the entire agreement between the parties with
respect to its subject matter and supersedes all prior agreements and
understandings between the parties in connection with it.
10. CONCILIATION
(a) Any dispute or difference in connection with this Deed will be
submitted to conciliation in accordance with, and subject to, The
Institute of Arbitrators Australia Rules for the Conduct of
Commercial Conciliations.
(b) If the dispute or difference is not settled within 30 days of one
party first sending to the other written notice that they are in
dispute, the parties' disputes and differences will be submitted
to arbitration in accordance with, and subject to, The Institute
of Arbitrators Australia Rules for the Conduct of Commercial
Arbitrations.
(c) Despite the existence of a dispute or difference each party must
continue to perform this Deed.
11. EFFECT OF REORGANISATION
If:
(a) the Option is exercised and Clause 3.3 did not apply; and
(b) there is a Reorganisation in relation to the Company before
either the S Option or the F Option is exercised,
the parties agree that they will negotiate in good faith to determine
whether any adjustment is required in relation to the S Option Shares,
the F Option Shares, the S Option Purchase Price or the F Option
Purchase Price as a result of the Reorganisation. In the absence of
such agreement, the parties agree that the extent of adjustment (if
any) will be determined by an independent expert. The identity of the
expert will be agreed to by the parties or, failing such agreement
within 5 days, as chosen by the President for the time being of the
Australian Institute of Chartered Accountants.
12. AMENDMENT
No amendment or variation of this Deed is valid or binding on a party
unless made in writing executed by all parties.
13. NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by a party operates as a waiver. A single or partial exercise
of any right, power or remedy does not preclude any other or further
exercise of that or any other right, power or remedy. A waiver is not
valid or binding on the party granting that waiver unless made in
writing.
14. FURTHER ASSURANCES
Each party agrees to do all things and execute all deeds, instruments,
transfers or other documents as may be necessary or desirable to give
full effect to the provisions of this Deed and the transactions
contemplated by it.
15. SEVERABILITY OF PROVISIONS
Any provision of this Deed that is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this Deed nor affect the validity or
enforceability of that provision in any other jurisdiction.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties in this Deed survive the execution
and delivery of this Deed and the completion of transactions
contemplated by it.
17. NO MERGER
The rights and obligations of the parties will not merge on the
completion of any transaction contemplated by this Deed. They will
survive the execution and delivery of any assignment or other document
entered into for the purpose of implementing a transaction.
18. COSTS AND STAMP DUTY
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Deed. All stamp duty (including
fines, penalties and interest) that may be payable on the execution of
this Deed must be borne by the parties in the following proportions:
(a) 40% by Shamrock; and
(b) 60% by Futuris.
Each party must indemnify the other on demand against any liability
for any stamp duty it has agreed to bear or pay under this Deed.
19. GOVERNING LAW AND JURISDICITON
This Deed is governed by the laws of Victoria. Each party submits to
the non-exclusive jurisdiction of courts exercising jurisdiction there
in connection with matters concerning this Deed.
20. COUNTERPARTS
This Deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
SCHEDULE 1
OPTION AGREEMENT
<PAGE>
EXECUTED as a Deed.
Each attorney executing this Deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
FUTURIS CORPORATION LIMITED
The Common Seal of Futuris
Corporation Limited was duly affixed in
the presence of:
/s/ Michael Peter Sadlon
---------------------------------------
Director/Secretary
MICHAEL PETER SADLON
---------------------------------------
Print Name
/s/ Alan L. Newman
---------------------------------------
Director
ALAN L NEWMAN
---------------------------------------
Print Name
CP Ventures Limited
----------------------------------------------------------
The Common Seal of CP Ventures
Limited was duly affixed in the presence
of:
/s/ Michael Peter Sadlon
---------------------------------------
Director/Secretary
MICHAEL PETER SADLON
---------------------------------------
Print Name
/s/ Alan L. Newman
---------------------------------------
Director
ALAN L NEWMAN
---------------------------------------
Print Name
Shamrock Holdings of California, Inc.
----------------------------------------------------------
Executed for and on behalf of Shamrock
Holdings of California, Inc. by its duly
authorised officer:
/s/ Robert Moskowitz
---------------------------------------
Signature
ROBERT MOSKOWITZ
---------------------------------------
Print Name
EXECUTIVE VICE-PRESIDENT
---------------------------------------
Title
