[JUPITERS LIMITED LOGO]
EXHIBIT 4.19
MERGER IMPLEMENTATION AGREEMENT BETWEEN
JUPITERS LIMITED AND TABCORP HOLDINGS LIMITED
DATED 12 JUNE 2003
EXHIBIT 4.19
Merger Implementation
Agreement
TABCORP Holdings Limited
Jupiters Limited
Stock Exchange Centre
530 Collins Street
Melbourne VIC 3000
Tel 61 3 9614 1011
Fax 61 3 9614 4661
www.aar.com.au
(C)Copyright Allens Arthur Robinson 2003
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 16
2. IMPLEMENTATION OF THE SCHEMES 17
3. CONDITIONS 17
3.1 Conditions 17
3.2 Nature of Conditions 19
3.3 Benefit and waiver of Conditions 19
3.4 Best endeavours 20
3.5 Pre-implementation steps 20
3.6 Notification of certain events 20
3.7 Termination 21
3.8 Conditions of Regulatory Approvals 21
3.9 Expert determination 22
4. ORDINARY SCHEME 22
4.1 Ordinary Scheme 22
4.2 Ordinary Scheme Consideration 23
4.3 Election mechanism 24
4.4 Special Dividend 24
4.5 Provision of Centrebet Business value 25
4.6 Status of TABCORP Shares 25
4.7 Conditions 25
5. RPS SCHEME 26
5.1 RPS Scheme 26
5.2 RPS Scheme Consideration 26
5.3 Conditions 26
6. OPTION SCHEME 26
6.1 Option Scheme 26
6.2 Option Scheme Consideration 27
6.3 Conditions 27
7. STEPS FOR IMPLEMENTATION 27
7.1 Jupiters' obligations 27
7.2 TABCORP's obligations 33
7.3 Appeal process 34
7.4 Jupiters Board recommendation 35
7.5 Board changes 36
7.6 Payment of final dividends 36
8. TREATMENT OF RPS 36
8.1 Conversion notices 36
8.2 Response to Trigger Event conversions 36
8.3 Response to special conversions 38
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8.4 Application and amendment of the RPS Terms 39
8.5 Exercise of constitutional powers 40
8.6 Acknowledgement by TABCORP 40
9. TREATMENT OF JUPITERS OPTIONS 41
9.1 Treatment after date of Agreement 41
9.2 Exercise of discretion in relation to Transaction 41
9.3 Treatment before date of Agreement 42
10. CENTREBET BUSINESS 42
10.1 Centrebet Sale Agreement 42
10.2 Consultation with TABCORP 42
10.3 Conduct of Centrebet Business by Jupiters 43
10.4 Conduct of Centrebet Business by TABCORP 44
10.5 Distribution of value of Centrebet Business 45
11. REPRESENTATIONS AND WARRANTIES 46
11.1 Jupiters' representations 46
11.2 TABCORP's representations 48
11.3 Timing of representations 50
11.4 Reliance by parties 50
11.5 Survival of representations 50
12. INDEMNITIES 51
12.1 Jupiters' indemnity 51
12.2 TABCORP's indemnity 51
12.3 Survival of indemnities 51
13. CONFIDENTIALITY 52
14. EXCLUSIVITY 52
14.1 Exclusivity 52
14.2 Notification of approaches 52
14.3 Normal provision of information 53
14.4 Exceptions to exclusivity 53
15. PAYMENT OF LIQUIDATED AMOUNT 53
15.1 Rationale 53
15.2 Payment 54
15.3 Compliance with law 56
15.4 Demand and time for payment 56
15.5 Clause without prejudice 56
16. PUBLIC ANNOUNCEMENTS 56
16.1 Public announcements 56
16.2 Required disclosure 57
16.3 Statements on termination 57
17. TERMINATION 57
17.1 Termination 57
17.2 Notice of breach 58
17.3 Effect of termination 58
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
18. GST 58
18.1 Definitions 58
18.2 GST to be added to amounts payable 59
18.3 Liability net of GST 59
18.4 Cost exclusive of GST 59
18.5 GST obligations to survive termination 59
19. MISCELLANEOUS 59
19.1 Notices 59
19.2 No waiver 60
19.3 Remedies cumulative 60
19.4 Entire agreement 60
19.5 Amendment 60
19.6 Assignment 61
19.7 No merger 61
19.8 Further assurances 61
19.9 Costs and stamp duty 61
19.10 Severability of provisions 61
19.11 Governing law and jurisdiction 61
19.12 Counterparts 61
SCHEDULE 1 62
Regulatory Approvals 62
SCHEDULE 2 65
Timetable 65
SCHEDULE 3 67
Material Contracts 67
SCHEDULE 4 70
Information to be Provided by Jupiters 70
SCHEDULE 5 72
Terms of Centrebet Sale 72
SCHEDULE 6 115
Distribution of Value of Centrebet Business 115
SCHEDULE 7 121
Application and Amendment of RPS Terms 121
SCHEDULE 8 140
Terms of Centrebet Note 140
ANNEXURE A
Ordinary Scheme
ANNEXURE B
RPS Scheme
ANNEXURE C
Option Scheme
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE D
Deed Poll
ANNEXURE E
Ongoing Centrebet Arrangements
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
DATE 12 June 2003
PARTIES
1. TABCORP HOLDINGS LIMITED (ABN 66 063 780 709) of 5 Bowen
Crescent, Melbourne, Victoria (TABCORP); and
2. JUPITERS LIMITED (ABN 78 010 741 045) of 17 Victoria Avenue,
Broadbeach, Queensland (JUPITERS).
RECITALS
A TABCORP and Jupiters have agreed to combine by means of a
scheme of arrangement under Part 5.1 of the Corporations Act
involving Jupiters and its ordinary shareholders, pursuant to
which TABCORP Acquirer will acquire all of the ordinary shares
in Jupiters.
B TABCORP and Jupiters have also agreed that Jupiters will
propose two other schemes of arrangement under Part 5.1 of the
Corporations Act such that, respectively, TABCORP Acquirer
will acquire all of the reset preference shares in Jupiters,
and all of the executive options issued by Jupiters will be
cancelled.
C TABCORP and Jupiters have agreed in good faith to implement
the Schemes upon and subject to the terms and conditions of
this Agreement.
D TABCORP and Jupiters have agreed certain other matters in
connection with the Transaction as set out in this Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
1936 TAX ACT means the Income Tax Assessment Act 1936 (Cth).
1997 TAX ACT means the Income Tax Assessment Act 1997 (Cth).
ADVISERS means, in relation to an entity, its legal, financial and
other expert advisers and agents.
ANNOUNCEMENT DATE means 5 March 2003.
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited (ABN 98 008 624 691).
ASX LISTING RULES means the official listing rules of ASX.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ASX WAIVER means a waiver of any requirement under ASX Listing Rule
6.23 to obtain the approval of Jupiters Shareholders for the
cancellation of the Jupiters Options pursuant to the Option Scheme.
ATO means the Australian Taxation Office.
BREAKWATER CASINO AGREEMENT means the agreement dated 27 November 1984
between the State of Queensland and the responsible entity of the
Breakwater Island Trust made pursuant to the Breakwater Island Casino
Agreement Act 1984 (Qld).
BREAKWATER ISLAND TRUST means the Breakwater Island Trust (ARSN 092 774
260).
BRISBANE CASINO AGREEMENT means the agreement dated 6 May 1993 between
Jupiters and the State of Queensland relating to the development and
operation of a hotel and casino complex at Brisbane, Queensland.
BUSINESS DAY has the meaning given in the ASX Listing Rules.
CASH CONSIDERATION has the meaning given in clause 4.2(a)(i).
CASH CONSIDERATION CAP means:
(a) if the Tax Ruling Event occurs, $2.85 multiplied by the number
of Scheme Shares on issue at the Record Date for the Ordinary
Scheme; and
(b) if the Tax Ruling Event does not occur, $3.60 multiplied by
the number of Scheme Shares on issue at the Record Date for
the Ordinary Scheme.
CASINO MANAGEMENT AGREEMENTS means:
(a) the agreement dated 18 May 1993 between Jupiters and BI Gaming
Corporation in relation to the management of the hotel and
casino complex known as Conrad Treasury; and
(b) the agreement dated 16 May 1998 between Jupiters, BI Gaming
Corporation and Jupiters Custodian Pty Ltd (ACN 067 888 680)
in relation to the management of the hotel and casino complex
known as Conrad Jupiters.
CENTREBET means Centrebet Pty Limited (ABN 76 082 760 610).
CENTREBET (UK) means Jupiters UK Limited (Company Number 04279246) and
Centrebet Limited (Company Number 04516804).
CENTREBET ASSETS means the assets listed in Part B of schedule 5 or as
otherwise agreed in writing by the parties.
CENTREBET BUSINESS means the internet and telephone gambling business
conducted, or proposed to be conducted (to the extent of the
introduction of a rapid-draw numbers game and mobile telephone betting
platforms), by Centrebet and Jupiters UK Limited as at the date of this
Agreement using the Centrebet Assets.
CENTREBET CLASS RULING means a public ruling under Part IVAAA of the
Taxation Administration Act 1953 (Cth) that:
(a) the Centrebet Dividend is a dividend pursuant to section 6(1)
of the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(b) of the 1936 Tax Act in respect
of the Centrebet Dividend or any part of it;
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(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(c) of the 1997 Tax Act in
respect of the Centrebet Dividend or any part of it; and
(d) section 177E of the 1936 Tax Act does not apply in respect of
the Centrebet Dividend or any part of it.
CENTREBET DIVIDEND means the dividend referred to in paragraph 1.1 of
schedule 6.
CENTREBET EMPLOYEES means the employees listed in section 1 of Part D
of schedule 5 and any other persons employed after the date of this
Agreement by Jupiters or any of its Related Entities principally in
connection with the Centrebet Business.
CENTREBET LIABILITIES means the liabilities listed in Part C of
schedule 5 or as otherwise agreed in writing by the parties.
CENTREBET NOTE has the meaning given in paragraph 2.1 of schedule 6.
CENTREBET PRIVATE RULING means a private ruling under Part IVAA of the
Taxation Administration Act 1953 (Cth) that:
(a) the Centrebet Dividend is a dividend pursuant to section 6(1)
of the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(a) of the 1936 Tax Act in respect
of the Centrebet Dividend or any part of it; and
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(a) or section 204-30(3)(b) of
the 1997 Tax Act in respect of the Centrebet Dividend or any
part of it.
CENTREBET SALE means the sale of the Centrebet Assets (or substantially
all of the Centrebet Assets) and the Centrebet Liabilities (or, in the
case contemplated by clause 10.4(c), of Centrebet and Centrebet (UK)
and any other Centrebet Assets owned by Jupiters) to a person other
than Jupiters or any of its Related Entities.
CENTREBET SALE AGREEMENT means a definitive and legally binding
agreement, whether conditional or unconditional, for the Centrebet
Sale, on terms no less favourable to Jupiters and its Related Entities
than those set out in schedule 5, except as otherwise agreed in writing
by TABCORP, but otherwise on terms acceptable to Jupiters.
CENTREBET SALE COMPLETION means the first time at which both of the
following are satisfied:
(a) completion under a Centrebet Sale Agreement has occurred; and
(b) the purchase price payable by the purchaser under that
Centrebet Sale Agreement has been received by Jupiters and its
relevant Related Entities, and any adjustments to that
purchase price have been made, and any disputes in relation to
any such adjustments have been finally determined, in
accordance with that Centrebet Sale Agreement,
and the Centrebet Sale will COMPLETE when those two events have
occurred.
CENTREBET TAX RULING EVENT means the Commissioner of Taxation making
each of the Centrebet Class Ruling and the Centrebet Private Ruling
(having first been provided with a copy of this Agreement).
CENTREBET WARRANTIES means the warranties listed in Part E of schedule
5.
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CHANGE IN LAW means the introduction into the Parliament of the
Commonwealth of Australia or of any State or Territory of Australia of
any law, or the making of any new regulation under any law, or the
adoption by any Regulatory Authority of any policy, or the announcement
by or on behalf of any Government of the Commonwealth of Australia or
of any State or Territory of Australia or any Regulatory Authority that
such a law or regulation will be introduced or such a policy adopted
(as the case may be).
CLASS RULING means a public ruling under Part IVAAA of the Taxation
Administration Act 1953 (Cth) that:
(a) the Special Dividend is a dividend pursuant to section 6(1) of
the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(b) of the 1936 Tax Act in respect
of the Special Dividend or any part of it;
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(c) of the 1997 Tax Act in
respect of the Special Dividend or any part of it; and
(d) section 177E of the 1936 Tax Act does not apply in respect of
the Special Dividend or any part of it.
CONDITIONS means the conditions set out in clause 3.1.
CONFIDENTIALITY & STANDSTILL AGREEMENT means the agreement dated on or
about 28 January 2003 between TABCORP and Jupiters.
CORPORATIONS ACT means the Corporations Act 2001 (Cth).
COURT means the Supreme Court of Queensland or any other court of
competent jurisdiction under the Corporations Act agreed in writing by
Jupiters and TABCORP.
DEED POLL means the deed poll referred to in clause 7.2(g).
DISCLOSURE STATEMENT means a document entitled 'Disclosure Statement'
provided for the purposes of this Agreement by Jupiters to TABCORP, and
initialled by the parties for the purpose of identification, prior to
the execution of this Agreement.
DIVIDEND REINVESTMENT PLAN means the Jupiters dividend reinvestment
plan approved by Jupiters Shareholders on 26 November 2002.
DIVIDEND RESOLUTION means a resolution of the Jupiters Board to
approve, in accordance with this Agreement, the declaration and payment
by Jupiters of the Special Dividend.
EFFECTIVE means, when used in relation to a Scheme, the coming into
effect, pursuant to section 411(10) of the Corporations Act, of the
order of the Court made for the purposes of section 411(4)(b) in
relation to the Scheme.
EFFECTIVE DATE means, in relation to a Scheme, the date on which the
order of the Court made for the purposes of section 411(4)(b) of the
Corporations Act in relation to the Scheme comes into effect pursuant
to section 411(10) of the Corporations Act.
EXCLUDED RPS means an RPS held by any person on behalf of or for the
benefit of TABCORP or any of its Related Entities, and any other RPS
agreed in writing by TABCORP and Jupiters.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
EXCLUDED SHARE means a Jupiters Share held by any person on behalf of
or for the benefit of TABCORP or any of its Related Entities.
EXCLUSIVITY PERIOD means the period from and including the date of this
Agreement to and including the date this Agreement is terminated in
accordance with its terms.
EXPERT means PricewaterhouseCoopers Securities Ltd, acting through a
Sydney or Melbourne-based partner of PricewaterhouseCoopers, or such
other person as Jupiters and TABCORP agree will be responsible for
determinations in accordance with clause 3.9.
IMPLEMENTATION DATE means, in relation to a Scheme, the third Business
Day after the Record Date for that Scheme.
INDEPENDENT EXPERT means PricewaterhouseCoopers Securities Ltd or such
other person as Jupiters and TABCORP agree will be responsible for
preparing the independent expert's report for inclusion in the Scheme
Booklet and any valuation required by clause 6.9 of the RPS Terms or by
the US Note Deed.
INELIGIBLE OVERSEAS SHAREHOLDER means:
(a) a Scheme Shareholder whose address as shown in the Jupiters
Share Register at the Record Date for the Ordinary Scheme is
in a jurisdiction other than Australia or its external
territories, Hong Kong or the United Kingdom; and
(b) a Scheme Shareholder to the extent that they hold Scheme
Shares on behalf of any person resident in the United States
of America,
except where TABCORP is reasonably satisfied that the issue of TABCORP
Shares to the Scheme Shareholder is not prohibited, not unduly onerous
and not unduly impracticable in that jurisdiction.
JUPITERS ANNUAL PLAN means the Jupiters Annual Plan for the year ending
30 June 2003, as fully and fairly disclosed in the Disclosure Statement
(but, for the avoidance of doubt, does not include that document as
subsequently amended or varied by the Jupiters Board after disclosure
in the Disclosure Statement).
JUPITERS BOARD means the board of directors of Jupiters.
JUPITERS CASINO AGREEMENT means the agreement dated 21 April 1983
between Jupiters, Jupiters Custodian Pty Ltd (ABN 64 067 888 680) and
the State of Queensland relating to the establishment and operation of
a hotel and casino complex at Broadbeach, Queensland.
JUPITERS DISCLOSURE MATERIAL means the documents and other material
made available to TABCORP and its Representatives prior to the date of
this Agreement in the data room maintained at the offices of Ernst &
Young at 120 Collins Street, Melbourne, and listed in the index
initialled by the parties for the purposes of identification.
JUPITERS INFORMATION means all information contained in the Scheme
Booklet and all information provided by or on behalf of Jupiters to the
Independent Expert to enable the Scheme Booklet to be prepared and
completed, but does not include the TABCORP Information and the
independent expert's report prepared by the Independent Expert and
included in or accompanying the Scheme Booklet.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
JUPITERS MATERIAL ADVERSE CHANGE means matters, events or
circumstances, including:
(a) any Change in Law; and
(b) any matter, event or circumstance which is fully and fairly
disclosed in the Disclosure Statement as an assumption in the
Jupiters budget for the financial year ending 30 June 2004, or
as an earnings assumption, becoming not reasonably likely to
occur,
but other than:
(c) those required to be done or procured by Jupiters pursuant to
this Agreement; or
(d) an actual matter, event or circumstance which is known to
TABCORP prior to the date of this Agreement (which, for the
avoidance of doubt, does not include knowledge of the general
risk of a matter, event or circumstance occurring, but
(without limiting paragraph (b)) does include any matter,
event or circumstance where that is either fully and fairly
disclosed in the Disclosure Statement as an assumption in the
Jupiters Annual Plan, or where TABCORP has knowledge prior to
the date of this Agreement of any actual fact that will, or
may reasonably be expected to, give rise to the occurrence of
the matter, event or circumstance); or
(e) any matter impacting on the operation of the Centrebet
Business (but only to the extent that it so impacts, with that
matter not being excluded under this paragraph (e) to the
extent that it impacts on Jupiters or any Related Entity of
Jupiters (other than Centrebet or Centrebet (UK)) or the
business, operations, assets or Regulatory Approvals of any of
them), provided that Jupiters is not in breach of clause 10 in
respect of that matter,
which individually, or when aggregated with all such matters, events or
circumstances, has had or is reasonably likely to have an adverse
financial effect of $60 million or more, where that financial effect is
calculated on the following basis:
(i) each matter, event or circumstance which, either individually
or when aggregated with other matters, events or circumstances
of a like kind, has had or is reasonably likely to have an
adverse financial effect of $1 million or more on the
recurring operating earnings before interest and tax of
Jupiters and its Related Entities in any financial year
(including those operating earnings that would, on the basis
of the relevant Jupiters budgets, have been reasonably likely
to have been earned had the relevant assumptions referred to
in paragraph (b) occurred), will be valued on the basis of the
full amount of that financial effect (and not just the amount
of the excess over $1 million) multiplied by 10 (provided that
in the case of a matter, event or circumstance referred to in
paragraph (b), only the variance from the effect fully and
fairly disclosed in the Disclosure Statement (after taking
into account the multiplier in this paragraph (i)) will be
taken into account); and
(ii) each matter, event or circumstance which, either individually
or when aggregated with other matters, events or circumstances
of a like kind, has had or is reasonably likely to have an
adverse financial effect of $5 million or more on the value of
the net assets of Jupiters and its Related Entities, as
compared to the net assets of Jupiters and its Related
Entities as at 31 December 2002, will be valued on the basis
of the full amount of that financial effect (and not just the
amount of the excess over $5 million); and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(iii) where matters, events or circumstances result, or are
reasonably likely to result:
(A) in the case of the development of the Gold Coast
Convention and Exhibition Centre (being the proposed
convention and exhibition centre located on the Gold
Coast Highway at Broadbeach, Queensland), in Jupiters
and its Related Entities making total capital
expenditure in respect of that development in excess
of $118 million, those matters, events and
circumstances will be valued on the basis of the
amount of the excess; or
(B) in the case of any other project, in Jupiters and its
Related Entities making total capital expenditure in
respect of that project in excess of the projected
amount of the capital expenditure for that project
(as fully and fairly disclosed in the Disclosure
Statement), those matters, events and circumstances
will be valued on the basis of the amount of the
excess.
Where a matter, event or circumstance would, but for this proviso, be
prima facie assessable for its financial effect under two or more of
paragraphs (i) to (iii) above, only the largest of those financial
effects (after taking into account, if relevant, the multiplier under
paragraph (i)) will be taken into account.
JUPITERS OPTION means an option granted pursuant to the Jupiters Option
Plan to subscribe for Jupiters Shares.
JUPITERS OPTION PLAN means the Jupiters Limited Executive Option Plan
adopted by the Jupiters Board on or about 8 February 2001.
JUPITERS OPTION REGISTER means the register of holders of Jupiters
Options maintained in accordance with the Corporations Act.
JUPITERS OPTIONHOLDER means each person registered in the Jupiters
Option Register as the holder of Jupiters Options.
JUPITERS PREPARATORY COSTS has the meaning given in clause 15.1(a).
JUPITERS PRESCRIBED OCCURRENCE means, other than:
(i) as required or contemplated by this Agreement;
(ii) as required or contemplated by any Scheme;
(iii) without limiting paragraph (q) below, pursuant to the terms of
any RPS issued prior to the Announcement Date, provided that
Jupiters has complied with clause 8 in relation to that RPS;
(iv) pursuant to the terms of any Jupiters Option granted prior to
the Announcement Date, provided that Jupiters has complied
with clause 9 in relation to that Jupiters Option;
(v) as contemplated by the Jupiters Annual Plan;
(vi) pursuant to the compliance by Jupiters or any of its Related
Entities with its obligations under, or the exercise by BI
Gaming Corporation of its rights (to the extent that Jupiters
or any of its Related Entities is not able to prevent the
exercise of those rights) under, the Casino Management
Agreements;
(vii) in relation to the operation or disposal of the Centrebet
Business, provided that Jupiters has complied with clause 10;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(viii) as fully and fairly disclosed in the Disclosure Statement; or
(ix) with the express consent of TABCORP,
the occurrence of any of the following:
(a) the constitution of Jupiters or a Related Entity of Jupiters
being amended;
(b) Jupiters or any Related Entity of Jupiters converting all or
any of its shares into a larger or smaller number of shares;
(c) Jupiters or any Related Entity of Jupiters resolving to reduce
its share capital in any way;
(d) Jupiters or any Related Entity of Jupiters:
(i) entering into a buy-back agreement; or
(ii) resolving to approve the terms of a buy-back
agreement under the Corporations Act;
(e) Jupiters or any Related Entity of Jupiters making an allotment
or issue of, or granting an option to subscribe for, any
shares or securities convertible into shares, or agreeing to
make such an allotment or issue or to grant such an option;
(f) Jupiters or any Related Entity of Jupiters issuing, or
agreeing to issue, convertible notes or other debentures;
(g) Jupiters or any Related Entity of Jupiters disposing of shares
in a Related Entity of Jupiters;
(h) Jupiters or any Related Entity of Jupiters disposing, or
agreeing to dispose, of the whole, or a substantial part, of
its business or property;
(i) Jupiters or any Related Entity of Jupiters making or declaring
any distribution whether by way of dividend or capital
reduction or otherwise and whether in cash or in specie, other
than the declaration and payment:
(i) by Jupiters of a fully franked final dividend in
respect of the year ending 30 June 2003 in an amount
not exceeding $0.12 cash for each Jupiters Share on
issue at the record date for that dividend and
otherwise in accordance with clause 7.6; or
(ii) by any Related Entity of Jupiters of a dividend,
where the recipient of that dividend is Jupiters or a
wholly-owned Related Entity of Jupiters;
(j) Jupiters or any Related Entity of Jupiters;
(i) acquiring, leasing or disposing of;
(ii) agreeing to acquire, lease or dispose of; or
(iii) offering, proposing or announcing a bid or tenders
for, any entity, business or assets, other than:
(iv) trading inventories and consumables in the ordinary
and usual course of business;
(v) as legally committed in any contract made available
to TABCORP and its Representatives as part of the
Jupiters Disclosure Material; or
(vi) by way of the novation of leases of employee
vehicles,
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
where the value of such entity, business or assets exceeds $10
million (either individually or, in the case of related
businesses or a class of assets, collectively);
(k) Jupiters or any Related Entity of Jupiters creating, or
agreeing to create, any mortgage, charge, lien or other
encumbrance over the whole, or a substantial part, of its
business or property;
(l) other than:
(i) as legally committed in any contract made available
to TABCORP and its Representatives as part of the
Jupiters Disclosure Material; or
(ii) by way of the novation of leases of employee
vehicles,
Jupiters or any Related Entity of Jupiters entering into any
contract or commitment (or a series of related contracts or
commitments) that:
(iii) is for a period of two years or more; or
(iv) requires or may result in expenditure by Jupiters
(either alone or together with any Related Entity of
Jupiters) of $500,000 or more in any year,
or Jupiters or any Related Entity of Jupiters making capital
expenditure in excess of $500,000;
(m) Jupiters or any Related Entity of Jupiters incurring any
indebtedness or issuing any indebtedness or debt securities
other than advances under existing facilities in existence as
at the Announcement Date;
(n) Jupiters or any Related Entity of Jupiters making any loans,
advances or capital contributions to, or investments in, any
other person, other than to or in Jupiters or any wholly-owned
subsidiary of Jupiters;
(o) Jupiters or any Related Entity of Jupiters:
(i) paying any bonus to any Officer of Jupiters or any
Related Entity of Jupiters, other than:
(A) salary bonuses payable for the year ending
30 June 2003 in accordance with the
employment terms of that Officer in
existence as at the Announcement Date and in
the ordinary and usual course of business on
the basis of principles consistent with
those applied for the payment of salary
bonuses by Jupiters or the relevant Related
Entity of Jupiters for the year ended 30
June 2002, as fully and fairly disclosed in
the Disclosure Statement; and
(B) transaction completion bonuses, as fully and
fairly disclosed in the Disclosure
Statement;
(ii) increasing the compensation of any Officer of
Jupiters or any Related Entity of Jupiters, other
than in accordance with Jupiters' annual salary
review process conducted in good faith and in the
ordinary and usual course of business on the basis of
principles consistent with those applied for
Jupiters' annual salary review process in June 2002,
as fully and fairly disclosed in the Disclosure
Statement; or
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(iii) granting to any Officer of Jupiters or any Related
Entity of Jupiters any increase in severance or
termination pay or superannuation entitlements;
(p) Jupiters or any Related Entity of Jupiters:
(i) changing the terms of any Material Contract;
(ii) paying, discharging or satisfying any claims,
liabilities or obligations under any Material
Contract other than the payment, discharge or
satisfaction, consistent with past practice and in
accordance with their terms; or
(iii) waiving any material claims or rights under or
waiving the benefit of any provisions of any Material
Contract,
where the consequences of such action are material to Jupiters
or the relevant Related Entity of Jupiters;
(q) Jupiters applying or amending, or proposing to apply or amend,
the RPS Terms in any manner inconsistent with the proposed
manner set out in schedule 7;
(r) Jupiters or any Related Entity of Jupiters resolving that it
be wound up;
(s) a liquidator, provisional liquidator or administrator of
Jupiters or of any Related Entity of Jupiters being appointed;
(t) the making of an order by a court for the winding up of
Jupiters or of any Related Entity of Jupiters;
(u) Jupiters or any Related Entity of Jupiters executing a deed of
company arrangement;
(v) a receiver, or a receiver and manager, in relation to the
whole, or a part, of the property of Jupiters or of any
Related Entity of Jupiters being appointed; or
(w) the trustee of any trust in which Jupiters or any Related
Entity of Jupiters has an interest of more than 50%
undertaking an action in respect of that trust if the
corresponding action, in the case of Jupiters and its Related
Entities, would constitute a Jupiters Prescribed Occurrence.
JUPITERS SHARE means a fully paid ordinary share in the capital of
Jupiters.
JUPITERS SHARE REGISTER means the register of members of Jupiters
maintained in accordance with the Corporations Act.
JUPITERS SHAREHOLDER means each person registered in the Jupiters Share
Register as the holder of Jupiters Shares.
JUPITERS TRUST means the trust established pursuant to a trust deed
dated 21 April 1983.
MATERIAL CONTRACT means any contract, arrangement or understanding to
which Jupiters or any Related Entity of Jupiters is a party that:
(a) is for a period of two years or more; or
(b) requires or may result in expenditure by Jupiters (either
alone or together with any Related Entity of Jupiters) of
$500,000 or more in any year; or
(c) is otherwise material to the business or operations of
Jupiters or any Related Entity of Jupiters.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
It includes the contracts referred to in schedule 3.
OFFICER means, in relation to an entity, its directors, officers and
employees.
OPTION SCHEME means the proposed scheme of arrangement between Jupiters
and Jupiters Optionholders, as described in clause 6.1, subject to any
alterations or conditions made or required by the Court under section
411(6) of the Corporations Act and approved in writing by each party.
OPTION SCHEME CONSIDERATION means the consideration to be provided by
TABCORP Acquirer to Scheme Optionholders under the terms of the Option
Scheme, as described in clause 6.2.
ORDINARY SCHEME means the proposed scheme of arrangement between
Jupiters and Jupiters Shareholders, as described in clause 4.1, subject
to any alterations or conditions made or required by the Court under
section 411(6) of the Corporations Act and approved in writing by each
party.
ORDINARY SCHEME CONSIDERATION means the consideration to be provided to
Scheme Shareholders under the terms of the Ordinary Scheme, as
described in clauses 4.2 and 4.5.
PRIVATE RULING means a private ruling under Part IVAA of the Taxation
Administration Act 1953 (Cth) that:
(a) the Special Dividend is a dividend pursuant to section 6(1) of
the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(a) of the 1936 Tax Act in respect
of the Special Dividend or any part of it; and
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(a) or section 204-30(3)(b) of
the 1997 Tax Act in respect of the Special Dividend or any
part of it.
PS 60 means Policy Statement 60 issued by ASIC on 4 August 1999, as
amended, substituted or replaced from time to time.
PS 142 means Policy Statement 142 issued by ASIC on 4 August 1999, as
amended, substituted or replaced from time to time.
QUIT DATE means 19 December 2003 or such later date as TABCORP and
Jupiters agree in writing.
RECORD DATE means, in relation to a Scheme, 5.00pm on the fifth
Business Day after the Effective Date for that Scheme or such other
date as TABCORP and Jupiters agree in writing.
REGULATORY APPROVAL means:
(a) any approval, consent, authorisation, registration, filing,
lodgement, permit, franchise, agreement, notarisation,
certificate, permission, licence, direction, declaration,
authority, waiver, modification or exemption from, by or with
a Regulatory Authority;
(b) in relation to anything that would be fully or partly
prohibited or restricted by law if a Regulatory Authority
intervened or acted in any way within a specified period after
lodgement, filing, registration or notification, the expiry of
that period without intervention or action; or
(c) any amendment to any legislation.
It includes the matters referred to in schedule 1.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
REGULATORY AUTHORITY means a government or a governmental,
semi-governmental or judicial entity or authority or any Minister,
department, office or delegate of any government. It includes a
self-regulatory organisation established under statute or a stock
exchange, ASIC and ASX.
RELATED ENTITY means, in relation to a party, any entity which is
related to that party within the meaning of section 50 of the
Corporations Act or which is an economic entity (as defined in any
approved Australian accounting standard) that is controlled by that
party.
REPRESENTATIVE means, in relation to a party:
(a) each of the party's Related Entities; and
(b) each of the Officers and Advisers of the party or of any of
its Related Entities.
RPS means a fully paid reset preference share in the capital of
Jupiters issued on the RPS Terms.
RPS HOLDER means each person registered in the Jupiters Share Register
as the holder of RPS.
RPS SCHEME means the proposed scheme of arrangement between Jupiters
and RPS Holders, as described in clause 5.1, subject to any alterations
or conditions made or required by the Court under section 411(6) of the
Corporations Act and approved in writing by each party.
RPS SCHEME CONSIDERATION means the consideration to be provided by
TABCORP Acquirer to Scheme RPS Holders under the terms of the RPS
Scheme, as described in clause 5.2.
RPS TERMS means the Terms and Conditions of the RPS, as set out in
appendix A to the prospectus dated 28 February 2002 issued by Jupiters,
as those Terms and Conditions may be amended by the Jupiters Board in
any manner consistent with the proposed manner set out in schedule 7.
SCHEME BOOKLET means the information to be dispatched to Jupiters
Shareholders, RPS Holders and Jupiters Optionholders and approved by
the Court, including each Scheme, explanatory statements in relation to
each Scheme issued pursuant to section 412 of the Corporations Act and
(other than in the case of the Option Scheme) registered with ASIC, an
independent expert's report prepared by the Independent Expert,
summaries of each of this Agreement and the Deed Poll, and notices
convening the Scheme Meetings (together with proxy forms).
SCHEME MEETINGS means each of the meetings to be ordered by the Court
to be convened pursuant to section 411(1) of the Corporations Act in
respect of the Schemes.
SCHEME OPTIONHOLDER means each person registered in the Jupiters Option
Register as the holder of Scheme Options as at the Record Date for the
Option Scheme.
SCHEME OPTIONS means the Jupiters Options on issue at the Record Date
for the Option Scheme (whether or not they are exercisable at that time
in accordance with the terms of the Jupiters Option Plan).
SCHEME PARTICIPANTS means Scheme Shareholders, Scheme RPS Holders and
Scheme Optionholders.
SCHEME RPS means the RPS on issue at the Record Date for the RPS Scheme
other than the Excluded RPS.
SCHEME RPS HOLDER means each person registered in the Jupiters Share
Register as the holder of Scheme RPS as at the Record Date for the RPS
Scheme.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEME SHAREHOLDER means each person registered in the Jupiters Share
Register as the holder of Scheme Shares as at the Record Date for the
Ordinary Scheme.
SCHEME SHARES means the Jupiters Shares on issue at the Record Date for
the Ordinary Scheme other than the Excluded Shares.
SCHEMES means the Ordinary Scheme, the RPS Scheme and the Option
Scheme.
SCRIP CONSIDERATION has the meaning given in clause 4.2(a)(ii).
SCRIP CONSIDERATION CAP means the number of TABCORP Shares (rounded up
or down to the nearest whole number of TABCORP Shares) equal to 0.24
multiplied by the number of Scheme Shares on issue at the Record Date
for the Ordinary Scheme.
SECOND COURT DATE means the first day on which an application made to
the Court for an order approving the Ordinary Scheme pursuant to
section 411(4)(b) of the Corporations Act is heard or, if the
application is adjourned for any reason, the first day on which the
adjourned application is heard.
SPECIAL DIVIDEND means a fully franked dividend of $0.75 cash for each
Jupiters Share on issue at the Record Date for the Ordinary Scheme.
TABCORP ACQUIRER means a wholly-owned Related Entity of TABCORP
nominated by TABCORP for the purpose of acquiring the Scheme Shares and
the Scheme RPS.
TABCORP BOARD means the board of directors of TABCORP.
TABCORP INFORMATION means such information regarding TABCORP and its
Related Entities and TABCORP Shares provided by or on behalf of TABCORP
to Jupiters or the Independent Expert to enable the Scheme Booklet to
be prepared and completed, and applications for Regulatory Approvals
required to satisfy any of the Conditions to be made.
TABCORP INVITEES means Mr Lawrence Willett AO and Mr John Story, or
such other combination of two directors of Jupiters at the date of this
Agreement as the parties may agree.
TABCORP ISSUER means a wholly-owned Related Entity of TABCORP nominated
by TABCORP for the purpose of issuing, in the case of implementation of
the method in paragraph 1.3 of schedule 6, the Centrebet Notes.
TABCORP MATERIAL ADVERSE CHANGE means matters, events or circumstances,
including:
(a) any Change in Law; and
(b) any matter, event or circumstance which has been disclosed to
Jupiters prior to the date of this Agreement as an earnings
assumption for the financial year ending 30 June 2004, and
relating to the business of the group of companies comprising
TABCORP and its Related Entities known as the 'gaming
business', becoming not reasonably likely to occur,
other than:
(c) those required to be done or procured by TABCORP pursuant to
this Agreement; or
(d) an actual matter, event or circumstance which is known to
Jupiters prior to the date of this Agreement (which, for the
avoidance of doubt, does not include knowledge of the general
risk of a matter, event or circumstance occurring, but does
include any matter, event or circumstance (without limiting
paragraph (b)) where Jupiters has knowledge prior to the
Page 13
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
date of this Agreement of any actual fact that will, or may
reasonably be expected to, give rise to the occurrence of the
matter, event or circumstance),
which individually, or when aggregated with all such matters, events or
circumstances, has had or is reasonably likely to have an adverse
financial effect of $438 million or more, where that financial effect
is calculated on the following basis:
(i) each matter, event or circumstance which, either individually
or when aggregated with other matters, events or circumstances
of a like kind, has had or is reasonably likely to have an
adverse financial effect of $7 million or more on the
recurring operating earnings before interest and tax of
TABCORP and its Related Entities (which, for the avoidance of
doubt, does not include Jupiters or any entity which was a
Related Entity of Jupiters prior to the Implementation Date
for the Ordinary Scheme) in any financial year, will be valued
on the basis of the full amount of that financial effect (and
not just the amount of the excess over $7 million) multiplied
by 10 (provided that in the case of a matter, event or
circumstance referred to in paragraph (b), only the variance
from the effect disclosed to Jupiters (after taking into
account the multiplier in this paragraph (i)) will be taken
into account); and
(ii) each matter, event or circumstance which, either individually
or when aggregated with other matters, events or circumstances
of a like kind, has had or is reasonably likely to have an
adverse financial effect of $36 million or more on the value
of the net assets of TABCORP and its Related Entities (which,
for the avoidance of doubt, does not include Jupiters or any
entity which was a Related Entity of Jupiters prior to the
Implementation Date for the Ordinary Scheme), as compared to
the net assets of TABCORP and its Related Entities as at 31
December 2002, will be valued on the basis of the full amount
of that financial effect (and not just the amount of the
excess over $36 million).
Where a matter, event or circumstance would, but for this proviso, be
prima facie assessable for its financial effect under both of
paragraphs (i) and (ii) above, only the largest of those financial
effects (after taking into account the multiplier under paragraph (i))
will be taken into account.
TABCORP PREPARATORY COSTS has the meaning given in clause 15.1(a).
TABCORP PRESCRIBED OCCURRENCE means (other than as required or
contemplated by this Agreement or any Scheme or with the express
consent of Jupiters) the occurrence of any of the following:
(a) TABCORP or any Related Entity of TABCORP disposing, or
agreeing to dispose, of the whole, or a substantial part, of
its business or property;
(b) TABCORP or any Related Entity of TABCORP converting all or any
of its shares into a larger or smaller number of shares;
(c) TABCORP or any Related Entity of TABCORP resolving to reduce
its share capital in any way;
(d) TABCORP or any Related Entity of TABCORP resolving that it be
wound up;
(e) a liquidator, provisional liquidator or administrator of
TABCORP or of any Related Entity of TABCORP being appointed;
(f) the making of an order by a court for the winding up of
TABCORP or of any Related Entity of TABCORP;
Page 14
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(g) TABCORP or any Related Entity of TABCORP executing a deed of
company arrangement;
(h) a receiver, or a receiver and manager, in relation to the
whole, or a part, of the property of TABCORP or of any Related
Entity of TABCORP being appointed;
(i) the trustee of any trust in which TABCORP or any Related
Entity of TABCORP has an interest of more than 50% undertaking
an action in respect of that trust if the corresponding
action, in the case of TABCORP and its Related Entities, would
constitute a TABCORP Prescribed Occurrence under any of
paragraphs (a) to (h) above; or
(j) TABCORP announcing an intention, proposal or agreement to:
(i) issue any security in TABCORP, other than in
connection with this Agreement, any Scheme, a
dividend reinvestment plan (including pursuant to any
underwriting of that plan) or an employee incentive
arrangement (including any security issued upon
conversion of or exercise of rights attaching to any
security issued under an employee incentive
arrangement), or with the express consent of
Jupiters;
(ii) other than in the ordinary course of business,
acquire all or part of the share capital in a person
other than Jupiters or a Related Entity of TABCORP,
or all or part of the assets of a person other than
Jupiters or a Related Entity of TABCORP, where the
cumulative value of such share capital or such assets
acquired since the date of this Agreement exceeds
$185 million; or
(iii) dispose of all or substantially all of any of the
businesses known respectively as the 'gaming
business', the 'wagering business' or the 'Star City
business', being businesses conducted by the group of
companies comprising TABCORP and its Related
Entities,
and the TABCORP VWAP on the tenth Business Day after the date
of that announcement (the ASSESSMENT DATE):
(iv) is less than $8.98; and
(v) (only in the event that the S&P/ASX 100 Index at the
close of business on the Assessment Date is less than
2,299.4) has declined relative to $10.26 by an amount
which (in percentage terms) exceeds by more than 7.5
percentage points the relevant decline (in percentage
terms) in the S&P/ASX 100 Index over the period from
the close of business on the Business Day immediately
before the Announcement Date to the close of business
on the Assessment Date.
TABCORP SHARE means a fully paid ordinary share in the capital of
TABCORP.
TABCORP VWAP means, on a relevant date, the daily volume weighted
average sale price of TABCORP Shares sold on ASX over the ten
consecutive Business Days ending on (and including) the relevant date
(excluding the effect of any transaction defined as 'special' in the
ASX Business Rules, any crossings prior to the commencement of normal
trading or during the after hours adjust phase on ASX, any overseas
trades and the exercise of options over TABCORP Shares).
TAX RULING EVENT means, on or before 5.00pm on the day before the
Second Court Date, the Commissioner of Taxation making each of the
Class Ruling and the Private Ruling (having first been provided with a
copy of this Agreement).
Page 15
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
THIRD PARTY PROPOSAL means any expression of interest, proposal or
offer by any person (other than TABCORP or any of its Related Entities)
to evaluate or enter into any transaction which is similar to the
Transaction or under which:
(a) that person (together with its associates) may acquire a
relevant interest in more than 10% of the Jupiters Shares or
the issued shares of any Related Entity of Jupiters;
(b) that person may acquire voting power of more than 10% in
Jupiters or any Related Entity of Jupiters;
(c) that person may acquire, directly or indirectly (including by
way of joint venture, dual listed company structure or
otherwise), any interest in all or a substantial part of the
business or assets of Jupiters or of any Related Entity of
Jupiters;
(d) that person may otherwise acquire control of or merge or
amalgamate with Jupiters or any Related Entity of Jupiters;
(e) Jupiters will issue a material amount of its share capital as
consideration for the assets or share capital of another
person; or
(f) Jupiters will effect or implement any reorganisation,
recapitalisation or dissolution,
but does not include any expression of interest, proposal or offer by a
person to evaluate or enter into a transaction to acquire the Centrebet
Business, as contemplated by clause 10.
TIMETABLE means the timetable set out in schedule 2, or such other
timetable as may be agreed in writing by the parties.
TRANSACTION means the acquisition by TABCORP Acquirer in accordance
with the terms of this Agreement of all of the Jupiters Shares through
the implementation of the Ordinary Scheme and of all of the RPS through
the implementation of the RPS Scheme, and the cancellation of all of
the Jupiters Options through the implementation of the Option Scheme or
through separate offers by TABCORP or TABCORP Acquirer to Jupiters
Optionholders.
US NOTE DEED means the Indenture dated as of 11 March 1999 between
Jupiters, each Initial Guarantor (as defined in the Indenture) and The
Bank of New York.
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 schedule or annexure to, this Agreement.
(f) A reference to an agreement or document (including a reference
to this Agreement) is to the agreement or document as amended,
varied, supplemented, novated or replaced, except to the
extent prohibited by this Agreement or that other agreement or
document.
Page 16
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(g) A reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including
persons taking by novation) and assigns.
(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 $ is to the lawful currency of Australia.
(j) Words and phrases not specifically defined in this Agreement
have the same meanings (if any) given to them in the
Corporations Act.
(k) A reference to time is a reference to time in Brisbane,
Australia.
(l) If the day on which any act, matter or thing is to be done is
a day other than a Business Day, such act, matter or thing
must be done on the immediately succeeding Business Day.
(m) The meaning of general words is not limited by specific
examples introduced by INCLUDING, or FOR EXAMPLE, or similar
expressions.
(n) A reference to a party using its BEST ENDEAVOURS or REASONABLE
ENDEAVOURS does not include a reference to that party paying
money (except immaterial amounts payable to Advisers and
similar expenses) or providing other valuable consideration to
or for the benefit of any person (and an obligation on a party
to use its best or reasonable endeavours does not oblige that
party to pay money (except immaterial amounts payable to
Advisers and similar expenses) or provide other valuable
consideration to or for the benefit of any person).
2. IMPLEMENTATION OF THE SCHEMES
Jupiters agrees to propose, and the parties agree to implement, the
Schemes upon and subject to the terms and conditions of this Agreement.
3. CONDITIONS
3.1 CONDITIONS
Subject to this clause 3, certain obligations of the parties under this
Agreement are subject to the conditions in this clause 3.1 having been
satisfied or waived in accordance with clause 3.3, to the extent and in
the manner set out in clauses 3.2 and 3.3.
(a) (REGULATORY APPROVALS) Before 8.00am on the Second Court Date,
all Regulatory Approvals required to implement:
(i) the Ordinary Scheme; and
(ii) if the RPS Scheme is approved by the necessary
majorities of RPS Holders, the RPS Scheme; and
(iii) if the Option Scheme is approved by the necessary
majorities of Jupiters Optionholders, the Option
Scheme,
are granted or obtained and those Regulatory Approvals are not
withdrawn, cancelled or revoked.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(b) (NO PROHIBITIONS) No temporary restraining order, preliminary
or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition
being in effect at 8.00am on the Second Court Date which
prevents the consummation of any aspect of:
(i) the Ordinary Scheme; or
(ii) if the RPS Scheme is approved by the necessary
majorities of RPS Holders, the RPS Scheme; or
(iii) if the Option Scheme is approved by the necessary
majorities of Jupiters Optionholders, the Option
Scheme.
(c) (QUOTATION OF TABCORP SHARES) The TABCORP Shares to be issued
pursuant to the Ordinary Scheme are approved for official
quotation by ASX, subject only to standard conditions relating
to the subsequent issue of the TABCORP Shares, before the
Second Court Date.
(d) (JUPITERS PRESCRIBED OCCURRENCE) Between the date of this
Agreement and 8.00am on the Second Court Date, no Jupiters
Prescribed Occurrence occurs.
(e) (JUPITERS MATERIAL ADVERSE CHANGE) Between the date of this
Agreement and 8.00am on the Second Court Date, no Jupiters
Material Adverse Change occurs.
(f) (JUPITERS REPRESENTATIONS AND WARRANTIES) The representations
and warranties of Jupiters set out in this Agreement that are
qualified as to materiality are true and correct, and the
representations and warranties of Jupiters set out in this
Agreement that are not so qualified are true and correct in
all material respects, in each case as at the date of this
Agreement and as at 8.00am on the Second Court Date as though
made on and as of that time, except to the extent that any
such representation or warranty expressly relates to an
earlier date (in which case as of such date).
(g) (TABCORP PRESCRIBED OCCURRENCE) Between the date of this
Agreement and 8.00am on the Second Court Date, no TABCORP
Prescribed Occurrence occurs.
(h) (TABCORP MATERIAL ADVERSE CHANGE) Between the date of this
Agreement and 8.00am on the Second Court Date, no TABCORP
Material Adverse Change occurs.
(i) (TABCORP REPRESENTATIONS AND WARRANTIES) The representations
and warranties of TABCORP set out in this Agreement that are
qualified as to materiality are true and correct, and the
representations and warranties of TABCORP set out in this
Agreement that are not so qualified are true and correct in
all material respects, in each case as at the date of this
Agreement and as at 8.00am on the Second Court Date as though
made on and as of that time, except to the extent that any
such representation or warranty expressly relates to an
earlier date (in which case as of such date).
(j) (CENTREBET BUSINESS) At all times up to 8.00am on the Second
Court Date, Jupiters has complied in all material respects
with its obligations under clause 10.
(k) (FINANCING CONDITIONS) Before 8.00am on the Second Court Date,
each condition precedent (other than conditions precedent of a
procedural nature that are within the sole control of TABCORP)
to underwriting under the commitment letter, and to drawdown
under the loan facilities, to be entered into by TABCORP to
finance, amongst other things,
Page 18
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
the Ordinary Scheme Consideration (to the extent of the Cash
Consideration) and the RPS Scheme Consideration and the Option
Scheme Consideration is, and remains, satisfied, or has been
waived by the relevant lenders.
3.2 NATURE OF CONDITIONS
(a) (JUPITERS' OBLIGATIONS) The obligations of Jupiters under:
(i) clauses 4, 5 and 6 are subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(i),
(b)(i), (c), (g), (h) and (i);
(ii) clause 5 are also subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(ii) and
(b)(ii); and
(iii) clause 6 are also subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(iii) and
(b)(iii).
(b) (TABCORP'S OBLIGATIONS) The obligations of TABCORP under:
(i) clauses 4, 5 and 6 are subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(i),
(b)(i), (c), (d), (e), (f), (j) and (k);
(ii) clause 5 are also subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(ii) and
(b)(ii); and
(iii) clause 6 are also subject to the satisfaction or
waiver of the Conditions in clauses 3.1(a)(iii) and
(b)(iii).
3.3 BENEFIT AND WAIVER OF CONDITIONS
(a) Jupiters and TABCORP together have the benefit of the
Conditions in clauses 3.1(a) to (c) and any breach or
non-fulfilment of those Conditions can only be waived with the
consent of both parties.
(b) TABCORP alone has the benefit of the Conditions in clauses
3.1(d), (e), (f), (j) and (k) and any breach or non-fulfilment
of those Conditions may be relied upon only by TABCORP which
may at any time and from time to time waive the breach or
non-fulfilment.
(c) Jupiters alone has the benefit of the Conditions in clauses
3.1(g), (h) and (i) and any breach or non-fulfilment of those
Conditions may be relied upon only by Jupiters which may at
any time and from time to time waive the breach or
non-fulfilment.
(d) A party entitled to waive a Condition under this clause 3.3
may do so in its absolute discretion.
(e) If a waiver by a party of a Condition is itself conditional
and the other party accepts the condition, the terms of that
condition apply accordingly. If the other party does not
accept a conditional waiver of the Condition, the Condition
has not been waived.
(f) If a party waives the breach or non-fulfilment of any of the
Conditions, that waiver will not preclude it from suing the
other party for any breach of this Agreement, including a
breach that resulted in the non-fulfilment of the Condition
that was waived.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(g) Unless specified in the waiver, a waiver of the breach or
non-fulfilment of any Condition will not constitute:
(i) a waiver of breach or non-fulfilment of any other
Condition resulting from events or circumstances
giving rise to the breach or non-fulfilment of the
first Condition; or
(ii) a waiver of breach or non-fulfilment of that
Condition resulting from any other event or
circumstance.
3.4 BEST ENDEAVOURS
Each of Jupiters and TABCORP must use its best endeavours to procure
that:
(a) each of the Conditions is satisfied as soon as practicable
after the date of this Agreement, or continues to be satisfied
at all times until the last time it is to be satisfied (as the
case may require), with a view to the Effective Date for each
Scheme occurring on or before the Quit Date; and
(b) there is no event or circumstance that would prevent the
Conditions being satisfied.
3.5 PRE-IMPLEMENTATION STEPS
Without limiting the generality of clause 3.4:
(a) (REGULATORY APPROVALS) each party must:
(i) promptly apply for all Regulatory Approvals required
by it or its Related Entities in order for a
Condition to be satisfied and provide to the other
party a copy of all such applications;
(ii) take all steps for which it is responsible as part of
obtaining any Regulatory Approval, including
responding to requests for information at the
earliest practicable time and attending meetings with
any Regulatory Authority; and
(iii) provide the other party with all information
reasonably requested in connection with the
application for any Regulatory Approval;
(b) (JUPITERS PRESCRIBED OCCURRENCE) Jupiters must ensure that no
Jupiters Prescribed Occurrence occurs between the date of this
Agreement and 8.00am on the Second Court Date; and
(c) (TABCORP PRESCRIBED OCCURRENCE) TABCORP must ensure that no
TABCORP Prescribed Occurrence occurs between the date of this
Agreement and 8.00am on the Second Court Date.
3.6 NOTIFICATION OF CERTAIN EVENTS
Each party must:
(a) keep the other promptly and reasonably informed of the steps
it has taken and of its progress towards satisfaction of the
Conditions;
(b) promptly notify the other if it becomes aware that any
Condition has been satisfied;
(c) promptly notify the other if it becomes aware that any
Condition has failed to be satisfied or has become incapable
of being satisfied or is not reasonably capable of being
satisfied
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(having regard to the obligations of the parties under clause
3.4 and the terms of clause 3.8); and
(d) after having given or received a notice in accordance with
clause 3.6(c) in relation to a Condition that it is entitled
under clause 3.3 to waive, give notice to the other party as
soon as possible (and in any event no later than five Business
Days or such shorter time to ensure that notice is given
before 5.00pm on the day before the Second Court Date) as to
whether or not it waives the breach or non-fulfilment of the
relevant Condition, specifying that Condition.
3.7 TERMINATION
Subject to clauses 3.9 and 17.3:
(a) TABCORP may terminate this Agreement by giving notice to
Jupiters if any of the Conditions in clauses 3.1(d), (e), (f),
(j) and (k) has failed to be satisfied, has become incapable
of being satisfied or is not reasonably capable of being
satisfied (having regard to the obligations of the parties
under clause 3.4 and the terms of clause 3.8), and to the
extent that such Condition may be waived by TABCORP, has not
previously been waived by TABCORP;
(b) Jupiters may terminate this Agreement by giving notice to
TABCORP if any of the Conditions in clauses 3.1(g), (h) or (i)
has failed to be satisfied, has become incapable of being
satisfied or is not reasonably capable of being satisfied
(having regard to the obligations of the parties under clause
3.4), and to the extent that such Condition may be waived by
Jupiters, has not previously been waived by Jupiters; and
(c) provided that it has complied with its obligations under
clause 3.4, either party may terminate this Agreement by
giving the other notice if any of the Conditions in clauses
3.1(a) to (c) has failed to be satisfied, has become incapable
of being satisfied or is not reasonably capable of being
satisfied (having regard to the obligations of the parties
under clause 3.4 and the terms of clause 3.8), and has not
previously been waived by the parties.
3.8 CONDITIONS OF REGULATORY APPROVALS
Notwithstanding anything in this Agreement to the contrary, in
obtaining any Regulatory Approval, TABCORP will not be required to
agree to conditions:
(a) requiring TABCORP to agree to or proffer to:
(i) divest or hold separate any of TABCORP's, Jupiters'
or any of their respective Related Entities' material
businesses or assets; or
(ii) cease to conduct or materially reduce the scope of
any material business or operations in any
jurisdiction in which TABCORP, Jupiters or any of
their respective Related Entities conducts business
or operations as at the date of this Agreement; or
(iii) limit the type or scope of any proposed or potential
business or operations in any jurisdiction (whether
or not TABCORP, Jupiters or any of their respective
Related
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
Entities conducts business or operations in
that jurisdiction as at the date of this Agreement);
or
(b) that do not merely impose procedural or other non-material
requirements incidental to the Regulatory Approval,
and any Regulatory Approval which is given subject to any such
conditions will not satisfy the Condition to which it relates.
3.9 EXPERT DETERMINATION
(a) If TABCORP proposes to give notice to Jupiters pursuant to
clause 3.7(a) on the basis of the Condition in clause 3.1(e),
or Jupiters proposes to give notice to TABCORP pursuant to
clause 3.7(b) on the basis of the Condition in clause 3.1(h),
it must first notify the other party of that proposal.
(b) Any notice provided in accordance with clause 3.9(a) must
include reasonable details of the matters, events and
circumstances upon which the notifying party proposes to rely
in giving notice pursuant to clause 3.7(a) or (b), as
relevant.
(c) In the absence of agreement between the parties as to the
effect of the matters, events and circumstances upon which the
notifying party proposes to rely, the party receiving the
notice may require that such notice be referred to the Expert
for a decision regarding whether those matters, events and
circumstances result in the occurrence of a Jupiters Material
Adverse Change or a TABCORP Material Adverse Change, as the
case may be. Such referral must be made within five Business
Days of the party receiving the notice under clause 3.9(a).
(d) If:
(i) the Expert determines, or the parties agree, that
there is a Jupiters Material Adverse Change or a
TABCORP Material Adverse Change, as the case may be;
or
(ii) the party receiving the notice under clause 3.9(a)
does not refer it to the Expert in accordance with
clause 3.9(c),
then TABCORP or Jupiters, as the case may be, may give notice
to the other party in accordance with clause 3.7(a) or (b), as
relevant. Otherwise, TABCORP or Jupiters, as the case may be,
may not give notice pursuant to clause 3.7(a) or (b), as
relevant, solely on the basis of those matters, events and
circumstances giving rise to a Jupiters Material Adverse
Change or a TABCORP Material Adverse Change, as the case may
be.
4. ORDINARY SCHEME
4.1 ORDINARY SCHEME
Jupiters must propose a scheme of arrangement under Part 5.1 of the
Corporations Act between it and the Jupiters Shareholders in the form
set out in annexure A or such other form as the parties agree in
writing, under which, subject to the Scheme becoming Effective, all of
the Scheme Shares will be transferred to TABCORP Acquirer and the
Scheme Shareholders will be entitled to receive, for each Scheme Share
held at the Record Date for the Ordinary Scheme, the Ordinary Scheme
Consideration.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
4.2 ORDINARY SCHEME CONSIDERATION
(a) (PROVISION BY TABCORP) Subject to clauses 4.2(b) and (c) and
4.3, TABCORP covenants in favour of Jupiters, in consideration
for the transfer to TABCORP Acquirer of the Scheme Shares held
by a Scheme Shareholder under the terms of the Ordinary
Scheme, to provide or to procure that TABCORP Acquirer and
TABCORP Issuer provide to the Scheme Shareholder the Ordinary
Scheme Consideration as follows (and as contemplated by clause
4.5):
(i) a cash amount (the CASH CONSIDERATION) in respect of
a percentage of those Scheme Shares (rounded up or
down to the nearest whole number of Scheme Shares) as
follows:
PERCENTAGE OF SCHEME
AMOUNT PER SCHEME SHARES HELD BY SCHEME
CIRCUMSTANCES SHARE SHAREHOLDER
- -------------------------------------------------------------------------
Tax Ruling Event occurs $5.25 54.286%
Tax Ruling Event does not
occur $6.00 60%
(ii) a number of TABCORP Shares (the SCRIP CONSIDERATION)
in respect of a percentage of those Scheme Shares
(rounded up or down to the nearest whole number of
Scheme Shares) as follows:
PERCENTAGE OF SCHEME
TABCORP SHARES PER SHARES HELD BY SCHEME
CIRCUMSTANCES SCHEME SHARE SHAREHOLDER
- ------------------------------------------------------------------------------
Tax Ruling Event occurs 0.525 45.714%
Tax Ruling Event does not
occur 0.6 40%
(b) (FRACTIONAL ENTITLEMENTS) Any fractional entitlement of a
Scheme Shareholder to a TABCORP Share will be rounded up or
down to the nearest whole number of TABCORP Shares.
(c) (INELIGIBLE OVERSEAS SHAREHOLDERS) Where a Scheme Shareholder
is an Ineligible Overseas Shareholder, the number of TABCORP
Shares to which the Scheme Shareholder would otherwise be
entitled under the Ordinary Scheme will be issued to a nominee
of TABCORP approved by Jupiters who will sell those TABCORP
Shares as soon as practicable (at the risk of that Ineligible
Overseas Shareholder) and pay the proceeds received, after
deducting any applicable brokerage and other selling costs,
taxes and charges, to that Ineligible Overseas Shareholder in
full satisfaction of that Ineligible Overseas Shareholder's
rights in relation to TABCORP Shares under the Ordinary
Scheme.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
4.3 ELECTION MECHANISM
The Scheme Booklet sent to Jupiters Shareholders must be accompanied by
a form of election under which each Scheme Shareholder is given the
opportunity to elect to receive, under the Ordinary Scheme, that part
of the Ordinary Scheme Consideration comprising either Cash
Consideration or Scrip Consideration for a greater proportion of their
Scheme Shares than is contemplated by clause 4.2(a). The form of
election must provide that:
(a) a Scheme Shareholder may elect to receive either maximum total
Cash Consideration or maximum total Scrip Consideration for
their Scheme Shares;
(b) a valid election in accordance with the clause 4.3(a) may be
made by a Scheme Shareholder by returning the duly completed
election form before the Record Date for the Ordinary Scheme
or such other date as the parties agree in writing to an
address to be specified by TABCORP;
(c) if a valid election is not made by a Scheme Shareholder prior
to the date referred to in clause 4.3(b) then that Scheme
Shareholder will, subject to clauses 4.2(b) and (c), receive
the Cash Consideration and Scrip Consideration contemplated by
clause 4.2(a) in respect of their Scheme Shares;
(d) if a valid election is made, the total Cash Consideration and
the total Scrip Consideration received by the Scheme
Shareholder will be determined by TABCORP in accordance with
the terms of the Ordinary Scheme (and applying the principle
that each increase or decrease in the percentage of Scheme
Shares for which Cash Consideration is contemplated by clause
4.2(a)(i) will be offset by an equivalent decrease or
increase, respectively, in the percentage of Scheme Shares for
which Scrip Consideration is contemplated by clause
4.2(a)(ii)), after taking into account the valid elections
made by all other Scheme Shareholders and on the basis that
TABCORP's obligation to provide or to procure that TABCORP
Acquirer and TABCORP Issuer provide the Ordinary Scheme
Consideration under the Ordinary Scheme will not (subject only
to the effects of rounding) require TABCORP or TABCORP
Acquirer to pay an amount as Cash Consideration in total
greater than the Cash Consideration Cap nor require TABCORP to
issue a number of TABCORP Shares as Scrip Consideration in
total greater than the Scrip Consideration Cap; and
(e) TABCORP's obligations with respect to any Ineligible Overseas
Shareholder are subject to clause 4.2(c),
and will otherwise be in a form agreed by the parties in writing.
4.4 SPECIAL DIVIDEND
If the Tax Ruling Event occurs:
(a) Jupiters will take all action necessary or desirable to ensure
that the Dividend Resolution is passed by the Jupiters Board
in accordance with the Ordinary Scheme, and on the basis that:
(i) the record date for the Special Dividend is the
Record Date for the Ordinary Scheme;
(ii) the Special Dividend will be paid and provided to
Scheme Shareholders in accordance with the Ordinary
Scheme; and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(iii) Jupiters will issue to each Jupiters Shareholder a
distribution statement in accordance with section
202-75 of the 1997 Tax Act in relation to the Special
Dividend; and
(b) immediately before the Dividend Resolution is passed, TABCORP
will subscribe (or will procure that a Related Entity of
TABCORP subscribes) for, and Jupiters will allot and issue to
TABCORP or to the relevant Related Entity of TABCORP such
number of:
(i) RPS; or
(ii) if the parties agree, other equity securities in
Jupiters (such securities being equity securities for
the purposes of the US Note Deed and not equity
interests under the 1997 Tax Act), on terms agreed by
the parties,
where the total cash subscription amount for those RPS or
other equity securities is at least the amount of the Special
Dividend or such lesser amount as the parties may agree
(provided that such lesser amount is at least the minimum
amount of capital which would be required by Jupiters to
enable it to declare and pay the Special Dividend having
regard to the terms of the US Note Deed). TABCORP must pay (or
must procure that the relevant Related Entity of TABCORP pays)
to Jupiters the cash subscription amount for those RPS or
other equity securities referred to in this clause 4.4(b) at
the time of subscription. TABCORP's obligations under this
clause 4.4(b) are subject to the Jupiters Shareholders having
approved the allotment and issue by Jupiters of the RPS, or
other equity securities, to be subscribed for pursuant to this
clause 4.4(b) in accordance with and for the purpose of ASX
Listing Rule 7.1, or ASX having granted a waiver of that
approval requirement, and the Regulatory Approvals referred to
in paragraphs 1, 8, 9 and 10 of schedule 1 having been
obtained in respect of that allotment and issue (to the extent
that such approvals or waivers are required).
4.5 PROVISION OF CENTREBET BUSINESS VALUE
The parties acknowledge that, as contemplated by clause 10.5, further
entitlements in addition to the Ordinary Scheme Consideration and the
Special Dividend may be provided, or a further component may be
included in the Ordinary Scheme Consideration to be provided, to Scheme
Shareholders under the Ordinary Scheme, by reference to net value
attributable to the Centrebet Business (being the Net Centrebet
Proceeds (as defined in paragraph 2.1 of schedule 6)).
4.6 STATUS OF TABCORP SHARES
The TABCORP Shares to be allotted and issued by TABCORP as part of the
Ordinary Scheme Consideration will rank pari passu with all existing
TABCORP Shares then on issue (other than in respect of any dividend
already declared and not yet paid by TABCORP, where the record date for
entitlements to that dividend has passed) and will be allotted and
issued free from all encumbrances.
4.7 CONDITIONS
The Ordinary Scheme will not be conditional upon either the RPS Scheme
or the Option Scheme becoming Effective or upon any other matters which
are not contemplated in this Agreement, other than (if the ASX waiver
referred to in clause 7.1(w) has not been granted and Jupiters or any
of its Representatives has not received a firm indication from ASX
that, if the Ordinary Scheme becomes Effective, that ASX waiver will be
granted) the approval by Jupiters Shareholders in accordance
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
with and for the purpose of ASX Listing Rule 7.1, at a general meeting
of Jupiters held on the same day as the Scheme Meeting for the Ordinary
Scheme, of the subscription by TABCORP or a Related Entity of TABCORP
for RPS or other equity securities in Jupiters in accordance with
clause 4.4(b), and (if necessary) in accordance with paragraph 1.1(f)
of schedule 6.
5. RPS SCHEME
5.1 RPS SCHEME
Jupiters must propose a scheme of arrangement under Part 5.1 of the
Corporations Act between it and the RPS Holders in the form set out in
annexure B or such other form as the parties agree in writing, under
which, subject to the Scheme becoming Effective, all of the Scheme RPS
will be transferred to TABCORP Acquirer and the Scheme RPS Holders will
be entitled to receive, for each Scheme RPS held at the Record Date for
the RPS Scheme, the RPS Scheme Consideration.
5.2 RPS SCHEME CONSIDERATION
TABCORP covenants in favour of Jupiters to procure that in
consideration for the transfer to TABCORP Acquirer of the Scheme RPS
held by a Scheme RPS Holder under the terms of the RPS Scheme, TABCORP
Acquirer pays the RPS Scheme Consideration to the Scheme RPS Holder,
comprising, in respect of each Scheme RPS:
(a) the cash amount of $105.26; plus
(b) an additional cash amount equal to the dividend accrued on the
Scheme RPS under clause 2.1 of the RPS Terms, calculated on
the basis of the number of days from (and including) the
immediately preceding Dividend Payment Date under the RPS
Terms to (but excluding) the Implementation Date for the RPS
Scheme,
provided that if the Implementation Date for the RPS Scheme occurs:
(c) after the record date for payment of the dividend accrued on
the Scheme RPS under clause 2.1 of the RPS Terms from (and
including) the immediately preceding Dividend Payment Date
under the RPS Terms; and
(d) before the Dividend Payment Date under the RPS Terms for that
accrued dividend,
then TABCORP Acquirer will have no obligation to pay to the Scheme RPS
Holder the cash amount referred to in paragraph (b).
5.3 CONDITIONS
The RPS Scheme will be subject to and conditional upon the Ordinary
Scheme becoming Effective, but will not be subject to the Option Scheme
becoming Effective.
6. OPTION SCHEME
6.1 OPTION SCHEME
Jupiters must propose a scheme of arrangement under Part 5.1 of the
Corporations Act between it and the Jupiters Optionholders in the form
set out in annexure C or such other form as the parties agree in
writing, under which, subject to the Scheme becoming Effective, all of
the Scheme Options
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
will be cancelled and the Scheme Optionholders will be entitled to
receive, for each Scheme Option held at the Record Date for the Option
Scheme, the Option Scheme Consideration.
6.2 OPTION SCHEME CONSIDERATION
TABCORP covenants in favour of Jupiters to procure that in
consideration for the cancellation of a Scheme Option held by a Scheme
Optionholder under the terms of the Option Scheme, TABCORP Acquirer
pays the Option Scheme Consideration to the Scheme Optionholder, as
determined in relation to that Scheme Option in accordance with the
following table:
EXPIRY DATE OF SCHEME OPTION CONSIDERATION PER SCHEME OPTION
- ---------------------------------------------------------------
30 August 2011 $2.07
5 November 2011 $2.14
6.3 CONDITIONS
The Option Scheme will be subject to and conditional upon the Ordinary
Scheme becoming Effective, and upon the granting of the ASX Waiver or
the approval of the Jupiters Shareholders (in accordance with and for
the purposes of ASX Listing Rule 6.23.2) of the cancellation of the
Jupiters Options pursuant to the Option Scheme, but will not be subject
to the RPS Scheme becoming Effective.
7. STEPS FOR IMPLEMENTATION
7.1 JUPITERS' OBLIGATIONS
Jupiters must execute all documents and do all acts and things within
its power as may be necessary or desirable for the implementation and
performance of the Schemes substantially in accordance with the
Timetable, and in particular Jupiters must:
(a) (SCHEME BOOKLET) as soon as practicable after the date of this
Agreement, prepare the Scheme Booklet in compliance with all
applicable laws, and in particular the Corporations Act, PS
60, PS 142 and the ASX Listing Rules (and including a summary
of the process by which Jupiters Shareholders, RPS Holders and
Jupiters Optionholders may object to the Schemes at the Court
hearing on the Second Court Date), make available to TABCORP
drafts of the Scheme Booklet, consult with TABCORP in relation
to the content of those drafts (other than the TABCORP
Information) and consider in good faith, for the purpose of
amending those drafts, comments from TABCORP and its
Representatives on those drafts;
(b) (INDEPENDENT EXPERT) promptly appoint the Independent Expert
and provide all assistance and information reasonably
requested by the Independent Expert in connection with:
(i) the preparation of the independent expert's report
for inclusion in the Scheme Booklet (such report
stating whether, in the opinion of the Independent
Expert, the Ordinary Scheme is in the best interests
of Jupiters Shareholders and is fair and reasonable,
and the RPS Scheme is in the best interests of RPS
Holders and is fair and reasonable); and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(ii) any valuation required by clause 6.9 of the RPS Terms
or by the US Note Deed;
(c) (APPROVAL OF DRAFT FOR ASIC) as soon as practicable after the
preparation of an advanced draft of the Scheme Booklet
suitable for review by ASIC, procure that a meeting of the
Jupiters Board, or of a committee of the Jupiters Board
appointed for the purpose, is convened to approve that draft
as being in a form appropriate for provision to ASIC for
review;
(d) (LIAISON WITH ASIC) as soon as practicable after the date of
this Agreement, provide an advanced draft of the Scheme
Booklet, in a form approved in accordance with clauses 7.1(c)
and 7.2(d), to ASIC for its review and approval for the
purposes of section 411(2) of the Corporations Act, and:
(i) liaise with ASIC during the period of its
consideration of that draft of the Scheme Booklet;
(ii) keep TABCORP informed of any matters raised by ASIC
in relation to the Scheme Booklet (and of any
resolution of those matters), and use all reasonable
endeavours to resolve any such matters; and
(iii) to the extent that Jupiters is itself unable to
resolve any matters raised by ASIC in relation to the
Scheme Booklet, or a matter raised by ASIC in
relation to the Scheme Booklet concerns the TABCORP
Information, allow TABCORP to participate (including
by attending meetings and being involved in
discussions) in Jupiters' liaisons with ASIC;
(e) (APPROVAL OF SCHEME BOOKLET) as soon as practicable after the
conclusion of the review by ASIC of the Scheme Booklet,
procure that a meeting of the Jupiters Board is convened to
approve the Scheme Booklet for dispatch to the Jupiters
Shareholders, the RPS Holders and the Jupiters Optionholders,
subject to approval of the Court;
(f) (SECTION 411(17)(b) STATEMENTS) apply to ASIC for the
production of statements in writing pursuant to section
411(17)(b) of the Corporations Act stating that ASIC has no
objection to, respectively, the Ordinary Scheme, the RPS
Scheme and the Option Scheme;
(g) (SCHEME MEETINGS) promptly after, and provided that, the
approvals in clauses 7.1(e) and 7.2(e) have been received:
(i) apply to the Court for orders under section 411(1) of
the Corporations Act directing Jupiters to convene
the Scheme Meetings, each to be held on the same day;
and
(ii) take all steps necessary to comply with the orders of
the Court including, as required, dispatching the
Scheme Booklet to the Jupiters Shareholders, the RPS
Holders and the Jupiters Optionholders and convening
and holding the Scheme Meetings;
(h) (COURT DOCUMENTS) consult with TABCORP in relation to the
content of the documents required for the purpose of each of
the Court hearings held for the purposes of sections 411(1)
and 411(4)(b) of the Corporations Act in relation to the
Schemes (including originating process, affidavits,
submissions and draft minutes of Court orders) and consider
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
in good faith, for the purpose of amending drafts of those
documents, comments from TABCORP and its Representatives on
those documents;
(i) (REGISTRATION OF EXPLANATORY STATEMENTS) request ASIC to
register the explanatory statements included in the Scheme
Booklet in relation to, respectively, the Ordinary Scheme and
the RPS Scheme in accordance with section 412(6) of the
Corporations Act;
(j) (ELECTION FORM) prepare and despatch to each Jupiters
Shareholder with the Scheme Booklet the form of election
contemplated by clause 4.3;
(k) (APPROVAL AND IMPLEMENTATION OF ORDINARY SCHEME) if the
resolution submitted to the Scheme Meeting in relation to the
Ordinary Scheme is passed by the necessary majorities, apply
(and, to the extent necessary, re-apply) to the Court for
orders approving the Ordinary Scheme substantially in
accordance with the Timetable, and if that approval is
obtained:
(i) promptly lodge with ASIC an office copy of the orders
approving the Ordinary Scheme in accordance with
section 411(10) of the Corporations Act;
(ii) close the Jupiters Share Register as at the Record
Date for the Ordinary Scheme and determine
entitlements to the Ordinary Scheme Consideration,
and the other entitlements to be provided to Scheme
Shareholders, in accordance with the Ordinary Scheme;
(iii) execute proper instruments of transfer of and effect
and register the transfer of the Scheme Shares in
accordance with the Ordinary Scheme; and
(iv) do all other things contemplated by or necessary to
give effect to the Ordinary Scheme and the orders of
the Court approving the Ordinary Scheme;
(l) (APPROVAL AND IMPLEMENTATION OF RPS SCHEME) if the resolution
submitted to the Scheme Meeting in relation to the RPS Scheme
is passed by the necessary majorities, apply (and, to the
extent necessary, re-apply) to the Court for orders approving
the RPS Scheme substantially in accordance with the Timetable,
and if that approval is obtained:
(i) promptly lodge with ASIC an office copy of the orders
approving the RPS Scheme in accordance with section
411(10) of the Corporations Act;
(ii) close the Jupiters Share Register as at the Record
Date for the RPS Scheme and determine entitlements to
the RPS Scheme Consideration in accordance with the
RPS Scheme;
(iii) execute proper instruments of transfer of and effect
and register the transfer of the Scheme RPS in
accordance with the RPS Scheme; and
(iv) do all other things contemplated by or necessary to
give effect to the RPS Scheme and the orders of the
Court approving the RPS Scheme;
(m) (APPROVAL AND IMPLEMENTATION OF OPTION SCHEME) if the
resolution submitted to the Scheme Meeting in relation to the
Option Scheme is passed by the necessary majorities, apply
(and, to the extent necessary, re-apply) to the Court for
orders approving the Option Scheme substantially in accordance
with the Timetable, and if that approval is obtained:
(i) promptly lodge with ASIC an office copy of the orders
approving the Option Scheme in accordance with
section 411(10) of the Corporations Act;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(ii) close the Jupiters Option Register as at the Record
Date for the Option Scheme and determine entitlements
to the Option Scheme Consideration in accordance with
the Option Scheme;
(iii) effect the cancellation of the Scheme Options in
accordance with the Option Scheme; and
(iv) do all other things contemplated by or necessary to
give effect to the Option Scheme and the orders of
the Court approving the Option Scheme;
(n) (TAX RULING REQUESTS) as soon as practicable after the date of
this Agreement (to the extent not already done prior to that
date):
(i) request the Commissioner of Taxation, in accordance
with Part IVAAA of the Taxation Administration Act
1953 (Cth) and the requirements in Class Ruling CR
2001/1, to make the Class Ruling;
(ii) request the Commissioner of Taxation, in accordance
with Part IVAA of the Taxation Administration Act
1953 (Cth) and the requirements in Taxation Ruling TR
93/1, to make the Private Ruling;
(iii) consult with TABCORP in relation to the preparation
and form of those ruling requests and any other
ruling request made in relation to the Transaction;
(iv) liaise with the ATO in relation to any ruling request
made in relation to the Transaction, and allow
TABCORP to participate (including by attending
meetings and being involved in discussions) in those
liaisons (other than the liaisons regarding the Class
Ruling and the Private Ruling);
(v) keep TABCORP informed of any matters raised by the
ATO in relation to those ruling requests, and use all
reasonable endeavours in co-operation with TABCORP to
resolve any such matters; and
(vi) use its best endeavours to procure that, as soon as
possible after the date of this Agreement, either:
(A) the Commissioner of Taxation grants the
Centrebet Class Ruling and the Centrebet
Private Ruling; or
(B) the ATO provides a firm indication to
Jupiters or any of its Representatives that
the Commissioner of Taxation will not grant
either or both of the Centrebet Class Ruling
and the Centrebet Private Ruling;
(o) (CONDUCT OF BUSINESS) except to the extent:
(i) contemplated by the Jupiters Annual Plan;
(ii) resulting from the compliance by Jupiters or any of
its Related Entities with its obligations under, or
the exercise by BI Gaming Corporation of its rights
(to the extent that Jupiters or any of its Related
Entities is not able to prevent the exercise of those
rights) under, the Casino Management Agreements;
(iii) relating to the operation or disposal of the
Centrebet Business, provided that Jupiters has
complied with clause 10;
(iv) fully and fairly disclosed in the Disclosure
Statement,
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
during the period from the date of this Agreement to
the Implementation Date for the Ordinary Scheme,
conduct (and cause each of its Related Entities to
conduct) its respective business and operations in
the ordinary and usual course substantially
consistent with the manner in which each such
business and operations have been conducted in the
three years prior to the date of this Agreement and
(except as otherwise fully and fairly disclosed in
the Disclosure Statement) in compliance in all
material respects with all applicable laws and
regulations and, to the extent consistent with that
obligation, use reasonable efforts to preserve intact
its current business organisation, keep available the
services of its current Officers and preserve its
relationship with Regulatory Authorities, rating
agencies, customers, suppliers, licensors, licensees
and others having business dealings with it;
(p) (CONSULTATION) during the period from the date of this
Agreement to the Implementation Date for the Ordinary Scheme,
consult with TABCORP in relation to the conduct of material
aspects of its and its Related Entities' businesses and
operations and consider in good faith TABCORP's views in
relation to the same, and:
(i) promptly provide to TABCORP the information referred
to in schedule 4, as and when that information
becomes available to senior executives of Jupiters;
(ii) consult with TABCORP in relation to any proposed
extension, renewal, replacement, revocation,
amendment or surrender of any Regulatory Approval of
a type referred to in paragraph (a) of the definition
of REGULATORY APPROVAL that is material to the
business or operations of Jupiters or any of its
Related Entities, and promptly take, or refrain from
taking, such action in relation to that proposal as
may be reasonably requested by TABCORP (such
reasonableness to be determined having regard to the
interests of Jupiters and its Related Entities);
(iii) consult with TABCORP in relation to any material
dealings with any Regulatory Authority in connection
with the business or operations of Jupiters or any of
its Related Entities; and
(iv) not admit, settle, compromise or pay any demand,
claim, action or proceeding brought by Neurizon Pty
Limited against Jupiters or any of its Related
Entities, or do any act or thing which might
prejudice the defence of Jupiters or its relevant
Related Entities of any such demand, claim, action or
proceeding, without the prior consent of TABCORP;
(q) (ASX LISTING) use its best endeavours to ensure that the
Jupiters Shares and the RPS continue to be quoted (even if
suspended from trading) on the stock market conducted by ASX
until the close of business on the Implementation Date for the
Ordinary Scheme and the RPS Scheme, respectively;
(r) (REPRESENTATION) allow, and not oppose, any application by
TABCORP for leave of the Court to be represented, or the
separate representation of TABCORP by counsel, at the Court
hearings held for the purposes of sections 411(1) and
411(4)(b) of the Corporations Act in relation to the Schemes;
(s) (PUBLICATION OF INFORMATION) as soon as they become available,
publish on its website the dates fixed for any Court hearing
in relation to the Schemes, including any adjournments or
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
continuance of those hearings, the date of the Scheme Meetings
and the text of all announcements made to ASX in connection
with the Transaction or the Schemes;
(t) (DRP) immediately after the date of this Agreement, suspend
the operation of the Dividend Reinvestment Plan and not,
without the prior consent of TABCORP, reinstate the operation
of the Dividend Reinvestment Plan or introduce any substitute
plan;
(u) (TAX CONSOLIDATION) consult with TABCORP in relation to the
engagement and briefing of, and allow TABCORP to participate
(including by attending meetings and being involved in
discussions) in Jupiters' liaisons with, any valuer engaged by
Jupiters for the purpose of preparing an independent valuation
of any of the assets of Jupiters and its Related Entities, in
connection with a proposal by Jupiters to make a choice
pursuant to section 703-50 of the 1997 Tax Act that the
eligible entities within the group of companies comprising
Jupiters and its Related Entities will be taken to be
consolidated;
(v) (CENTREBET TAX RETURN) in the case of the implementation of
the method in paragraph 1.1 of schedule 6, prepare (and
procure that its relevant Related Entities prepare) draft tax
returns for Centrebet in respect of the income year commencing
1 July 2002 and the income year commencing 1 July 2003 (in the
latter case, based on the financial results for the period up
until at least the date of the Centrebet Sale Completion)
prior to the Implementation Date for the Ordinary Scheme, so
as to enable those tax returns (as updated if necessary to
account for the period between the Centrebet Sale Completion
and the date of lodgement of the tax returns) to be lodged
with the ATO prior to Centrebet becoming a subsidiary member
of a consolidated group of which TABCORP is the head company.
In this clause 7.1(v), INCOME YEAR, SUBSIDIARY MEMBER,
CONSOLIDATED GROUP and HEAD COMPANY have the meanings given in
the 1997 Tax Act;
(w) (ASX WAIVER) use all reasonable endeavours to procure that ASX
grants a waiver of any requirement under ASX Listing Rule 7.1
to obtain the approval of Jupiters Shareholders for the
subscription by TABCORP or a Related Entity of TABCORP for RPS
or other equity securities in Jupiters in accordance with
clause 4.4(b), and (if necessary) in accordance with paragraph
1.1(f) of schedule 6, or that ASX provides a firm indication
to Jupiters or any of its Representatives that, if the
Ordinary Scheme becomes Effective, such a waiver will be
granted;
(x) (CENTREBET EMPLOYEES) except to the extent otherwise agreed in
writing with TABCORP, immediately following completion under
the Centrebet Sale Agreement make (or cause to be made)
redundant all Centrebet Employees who are not offered, or who
do not accept an offer of, employment by the purchaser under
the relevant Centrebet Sale Agreement on terms no less
favourable than those enjoyed as at the date of the Centrebet
Sale Agreement; and
(y) (COMPLIANCE WITH LAWS) do everything reasonably within its
power to ensure that the Transaction is effected in accordance
with all laws and regulations applicable in relation to the
Transaction.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
7.2 TABCORP'S OBLIGATIONS
TABCORP must execute all documents and do all acts and things within
its power as may be necessary or desirable for the implementation and
performance of the Schemes substantially in accordance with the
Timetable, and in particular TABCORP must:
(a) (TABCORP INFORMATION) prepare and provide to Jupiters the
TABCORP Information for inclusion in the Scheme Booklet in
compliance with all applicable laws relevant to that
information as soon as is reasonably practicable, consult with
Jupiters in relation to the content of the TABCORP Information
and consider in good faith, for the purpose of amending that
information, comments from Jupiters and its Representatives on
that information;
(b) (INDEPENDENT EXPERT) provide all assistance and information
reasonably requested by the Independent Expert in connection
with the preparation of the independent expert's report for
inclusion in the Scheme Booklet and any valuation required by
clause 6.9 of the RPS Terms or by the US Note Deed;
(c) (REVIEW OF SCHEME BOOKLET) as soon as practicable after
delivery, review the drafts of the Scheme Booklet prepared by
Jupiters and provide comments on those drafts in good faith;
(d) (APPROVAL OF DRAFT FOR ASIC) as soon as practicable after the
preparation of an advanced draft of the Scheme Booklet
suitable for review by ASIC, procure that a meeting of the
TABCORP Board, or of a committee of the TABCORP Board
appointed for the purpose, is convened to approve those
sections of that draft that relate to TABCORP and its Related
Entities and the TABCORP Shares as being in a form appropriate
for provision to ASIC for review;
(e) (APPROVAL OF SCHEME BOOKLET) as soon as practicable after the
conclusion of the review by ASIC of the Scheme Booklet,
procure that a meeting of the TABCORP Board is convened to
approve those sections of the Scheme Booklet that relate to
TABCORP and its Related Entities and the TABCORP Shares as
being in a form appropriate for dispatch to the Jupiters
Shareholders, the RPS Holders and the Jupiters Optionholders,
subject to approval of the Court;
(f) (REPRESENTATION) if requested by Jupiters, procure that
TABCORP is represented by counsel at the Court hearings held
for the purposes of sections 411(1) and 411(4)(b) of the
Corporations Act in relation to the Schemes, at which, through
its counsel, TABCORP will undertake (if requested by the
Court) to do all such things and take all such steps within
its power as may be necessary in order to ensure the
fulfilment of its, TABCORP Acquirer's and TABCORP Issuer's
obligations under the Schemes, and, to the extent that leave
of the Court is required for TABCORP to be represented at
those Court hearings, apply for that leave;
(g) (DEED POLL) prior to the despatch of the Scheme Booklet,
execute (and procure that each of TABCORP Acquirer and TABCORP
Issuer executes) a deed poll in the form of annexure D or in
such other form agreed by the parties in writing under which
each of TABCORP, TABCORP Acquirer and TABCORP Issuer covenants
in favour of the Scheme Participants to perform its respective
obligations under the Schemes, and TABCORP covenants in favour
of the Scheme Participants to procure that TABCORP Acquirer
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
performs TABCORP Acquirer's obligations, and TABCORP Issuer
performs TABCORP Issuer's obligations, under the Schemes;
(h) (ASSISTANCE WITH TAX RULING REQUESTS) use its best endeavours
to assist Jupiters (including by commenting on draft ruling
requests and, if requested by Jupiters or any of its
Representatives, by participating in meetings), and provide
all information reasonably requested by Jupiters, in
connection with the requests by Jupiters for the Commissioner
of Taxation to make the Class Ruling, the Private Ruling and
any other ruling applied for in relation to the Transaction;
(i) (CENTREBET NOTE DEED) procure that the Centrebet Note Deed (as
defined in paragraph 2.1 of schedule 6) is executed in
sufficient time for a summary of its contents to be prepared
for inclusion in the Scheme Booklet to be dispatched to
Jupiters Shareholders, on terms acceptable to both parties
acting reasonably;
(j) (TAX CONSOLIDATION) in the case of the implementation of the
method in paragraph 1.1 of schedule 6, not make a choice
pursuant to section 703-50 of the 1997 Tax Act that the
eligible entities within the group of companies comprising
TABCORP and its Related Entities will be taken to be
consolidated from a date which is prior to Jupiters and its
relevant Related Entities having lodged with the ATO a tax
return for Centrebet in respect of the income year commencing
1 July 2003 up until the date that the eligible entities
within the group of companies comprising TABCORP and its
Related Entities will be taken to be consolidated;
(k) (CENTREBET TAX RETURN) in the case of the implementation of
the method in paragraph 1.1 of schedule 6 and where a tax
return for Centrebet has not been lodged by Jupiters and its
relevant Related Entities in respect of the income year
commencing 1 July 2003 (based on the financial results for the
period up until at least the date of the Centrebet Sale
Completion), and the tax payable on the assessment for that
period has not been paid, prior to 30 June 2004, procure that
Jupiters and its relevant Related Entities lodge with the ATO
a tax return for Centrebet in respect of the income year
commencing 1 July 2003 (based on the financial results for the
period up until at least the date of the Centrebet Sale
Completion, and updated if necessary to account for the period
between the Centrebet Sale Completion and the date of
lodgement of the tax return) no later than 30 June 2004;
(l) (FINANCING DOCUMENTS) as soon as possible after the later of
the date of this Agreement and the date of signing the
relevant document, provide to Jupiters a copy of the
commitment letter and of the loan facilities that have been,
or are to be, entered into by TABCORP to finance, amongst
other things, the Ordinary Scheme Consideration (to the extent
of the Cash Consideration) and the RPS Scheme Consideration
and the Option Scheme Consideration; and
(m) (COMPLIANCE WITH LAWS) do everything reasonably within its
power to ensure that the Transaction is effected in accordance
with all laws and regulations applicable in relation to the
Transaction.
7.3 APPEAL PROCESS
If the Court refuses to make any orders convening the Scheme Meetings
or approving the Schemes, Jupiters must appeal the Court's decision to
the fullest extent possible (except to the extent that the
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
parties agree otherwise, or independent Senior Counsel indicates that,
in their view, an appeal would have no reasonable prospect of success
before the Quit Date). If such an appeal is undertaken by Jupiters at
the request of TABCORP then, unless the parties otherwise agree,
TABCORP will bear Jupiters' reasonable costs of the appeal.
7.4 JUPITERS BOARD RECOMMENDATION
Jupiters must procure that, in relation to each Scheme, in the absence
of:
(a) a bona fide Third Party Proposal being publicly announced
which the Jupiters Board, acting in good faith, determines
after having taken advice from its financial and legal
advisers is:
(i) reasonably capable of being valued and completed,
taking into account all aspects of the Third Party
Proposal; and
(ii) more favourable from a financial point of view to the
Jupiters Shareholders than the Ordinary Scheme,
taking into account all the terms and conditions of
the Third Party Proposal,
and the Jupiters Board publicly recommending that the Third
Party Proposal is in the interests of Jupiters and its
members; or
(b) in relation to the Ordinary Scheme, the Independent Expert
giving an opinion that the Ordinary Scheme is not in the best
interests of the Jupiters Shareholders; or
(c) in relation to the RPS Scheme, the Independent Expert giving
an opinion that the RPS Scheme is not in the best interests of
the RPS Holders; or
(d) in relation to the RPS Scheme, the Offer Price (as defined in
the RPS Terms) relating to the Ordinary Scheme being
determined by the Independent Expert under clause 6.9 of the
RPS Terms to be more than $7.66; or
(e) in relation to the RPS Scheme, the Jupiters Board, acting in
good faith, forming the view after having taken appropriate
advice that the average of the daily volume weighted average
sale price of Jupiters Shares sold on ASX during the last 20
Business Days of trading of Jupiters Shares on ASX preceding
the Conversion Date (as defined in the RPS Terms) in respect
of requests for conversion from RPS Holders under clause 4.2
of the RPS Terms (where such requests arise as a result of the
release by Jupiters to ASX of the independent expert's report
included in the Scheme Booklet in relation to the Ordinary
Scheme) will be more than $6.77,
the Jupiters Board will:
(f) recommend that the Scheme is in the interests of Jupiters and
its members and not subsequently withdraw that recommendation;
(g) recommend that the Jupiters Shareholders or the RPS Holders or
the Jupiters Optionholders (as relevant) vote in favour of all
resolutions to be proposed at the Scheme Meeting in relation
to the Scheme and approve the Scheme, and not subsequently
withdraw that recommendation;
(h) include in all public statements relating to the Scheme
following the execution of this Agreement a statement to the
effect of clauses 7.4(f) and (g); and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(i) not make any public statement or take any other action which
would suggest that the Scheme is not recommended by the
Jupiters Board.
The Jupiters Board may only rely on clause 7.4(d) or (e) to avoid
compliance with clauses 7.4(f) to (i) if the Jupiters Board's first
reliance on the relevant clause occurs prior to the end of the period
of 20 Business Days after the date that Jupiters provides notice to RPS
Holders under clause 4.2(a) of the RPS Terms in connection with the
release by Jupiters to ASX of the independent expert's report included
in the Scheme Booklet in relation to the Ordinary Scheme.
7.5 BOARD CHANGES
(a) As soon as practicable after the Effective Date for the
Ordinary Scheme, Jupiters will use its best endeavours to
appoint three nominees of TABCORP to the Jupiters Board and to
ensure that all directors of Jupiters, other than the TABCORP
nominees, resign.
(b) As soon as practicable after the Effective Date for the
Ordinary Scheme, TABCORP will invite and, subject to all
necessary Regulatory Approvals having first been obtained,
procure the appointment of the TABCORP Invitees to the TABCORP
Board.
7.6 PAYMENT OF FINAL DIVIDENDS
The parties agree that the record date for entitlements to the final
dividend to be paid by each of them to their respective ordinary
shareholders in respect of the year ending 30 June 2003 will be 12
September 2003, or such later date as the parties agree in writing.
8. TREATMENT OF RPS
8.1 CONVERSION NOTICES
(a) Immediately upon Jupiters releasing to ASX the independent
expert's report included in the Scheme Booklet in relation to
the Ordinary Scheme, Jupiters will dispatch to the RPS Holders
the notice referred to in clause 4.2(a) of the RPS Terms.
(b) Jupiters must notify TABCORP on each occasion on which it
receives a request for conversion from an RPS Holder under
clause 4.2 (arising as a result of the release by Jupiters to
ASX of the independent expert's report included in the Scheme
Booklet in relation to the Ordinary Scheme) or 4.3 of the RPS
Terms and no later than one Business Day after it receives the
request, specifying the number of RPS to which the request for
conversion relates and the provision of the RPS Terms pursuant
to which the request has been made.
8.2 RESPONSE TO TRIGGER EVENT CONVERSIONS
(a) (ELECTION BY JUPITERS ON TRIGGER EVENT) In respect of each
request for conversion received by Jupiters under clause 4.2
of the RPS Terms arising as a result of the release by
Jupiters to ASX of the independent expert's report included in
the Scheme Booklet in relation to the Ordinary Scheme,
Jupiters:
(i) must make an election pursuant to and in accordance
with clause 5.3(b) of the RPS Terms, during the
period when that election may be made, to arrange for
the RPS to which the request for conversion relates
to be acquired by TABCORP or a
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
Related Entity of TABCORP, unless the making or
implementation of such an election is prohibited by
any judgment, ruling, order or decree of a Regulatory
Authority binding on Jupiters; and
(ii) may consent, pursuant to clause 4.4 of the RPS Terms
and at any time on or before (but no later than) the
Business Day immediately preceding the record date
for voting in respect of the RPS Scheme, to the
relevant RPS Holder withdrawing that request for
conversion (provided that, if an election has already
been made by Jupiters pursuant to clause 5.3(b) of
the RPS Terms, the RPS Holder consents (if required),
pursuant to clause 5.6 of the RPS Terms, to Jupiters
withdrawing that election). If Jupiters provides any
such consent, it must notify TABCORP on each occasion
of that no later than one Business Day after it
provides that consent, specifying the number of RPS
to which the consent relates.
(b) (PURCHASE BY TABCORP) Subject to clause 8.2(c), TABCORP must
acquire, or procure that one of its Related Entities acquires,
all of the RPS in respect of which Jupiters has made an
election in accordance with clause 8.2(a)(i), except to the
extent that the relevant request for conversion has been
withdrawn in accordance with clause 8.2(a)(ii). On the
Conversion Date (as defined in the RPS Terms) in respect of
each of those RPS:
(i) TABCORP must pay to the RPS Holder cash consideration
for that RPS equal to the Repurchase Amount (as
defined in the RPS Terms); and
(ii) Jupiters must pay to the RPS Holder the Outstanding
Dividend (as defined in the RPS Terms) for that RPS,
in accordance with the RPS Terms. Jupiters must do all things
and execute all documents in accordance with the RPS Terms as
may be necessary or desirable to effect a transfer of the RPS
to TABCORP or its relevant Related Entity.
(c) (EFFECT OF TERMINATION) TABCORP will have no obligation under
clause 8.2(b) to purchase an RPS where:
(i) this Agreement has been terminated by either party
prior to Jupiters making an election in accordance
with clause 8.2(a) in respect of that RPS; or
(ii) this Agreement has been terminated by:
(A) TABCORP pursuant to clause 17.1(a)(ii) or
(b); or
(B) Jupiters pursuant to clause 17.1(c).
Otherwise, termination of this Agreement by either TABCORP or
Jupiters will be without prejudice to the obligations of
TABCORP and Jupiters under clause 8.2(b).
(d) (WITHDRAWAL OF JUPITERS' ELECTION) Once Jupiters has made an
election pursuant to clause 5.3(b) of the RPS Terms in respect
of a request for conversion received by Jupiters under clause
4.2 of the RPS Terms, Jupiters must not, other than with the
prior consent of TABCORP or as contemplated by clause
8.2(a)(ii), withdraw, or seek to withdraw, that election.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
8.3 RESPONSE TO SPECIAL CONVERSIONS
(a) (ELECTION BY JUPITERS ON SPECIAL CONVERSION) In respect of
each request for conversion received by Jupiters under clause
4.3 of the RPS Terms, Jupiters:
(i) must make an election pursuant to and in accordance
with clause 5.4 of the RPS Terms, during the period
when that election may be made, to redeem the RPS to
which the request for conversion relates, unless the
making or implementation of such an election is
prohibited by any judgment, ruling, order or decree
of a Regulatory Authority binding on Jupiters; and
(ii) (subject to clause 8.3(e)) may consent, pursuant to
clause 4.4 of the RPS Terms and at any time on or
before (but no later than) the Business Day
immediately preceding the record date for voting in
respect of the RPS Scheme, to the relevant RPS Holder
withdrawing that request for conversion (provided
that, if an election has already been made by
Jupiters pursuant to clause 5.4 of the RPS Terms, the
RPS Holder consents (if required), pursuant to clause
5.6 of the RPS Terms, to Jupiters withdrawing that
election). If Jupiters provides any such consent, it
must notify TABCORP on each occasion of that no later
than one Business Day after it provides that consent,
specifying the number of RPS to which the consent
relates.
(b) (NOTICE TO SUBSCRIBE) Jupiters must immediately notify TABCORP
on each occasion on which it makes an election pursuant to
clause 5.4 of the RPS Terms and must (in that notice)
immediately offer TABCORP and each Related Entity of TABCORP
the opportunity to subscribe for such number of:
(i) RPS; or
(ii) if the parties agree, other equity securities in
Jupiters (such securities being equity securities for
the purposes of the US Note Deed and not equity
interests under the 1997 Tax Act), on terms agreed by
the parties,
where the total cash subscription amount for those RPS or
other equity securities is at least the amount Jupiters is
required to pay to the relevant RPS Holder on redemption of
the RPS to which the election relates. To the extent that the
relevant request for conversion is withdrawn subsequently in
accordance with clause 8.3(a)(ii), then the offer by Jupiters
in accordance with this clause 8.3(b) will be deemed to have
been withdrawn.
(c) (SUBSCRIPTION BY TABCORP) Subject to clause 8.3(f), on the
Conversion Date (as defined in the RPS Terms) in respect of
the RPS subject to an election by Jupiters in accordance with
clause 8.3(a)(i), or such earlier date as the parties agree in
writing, TABCORP must subscribe for (or must procure that a
Related Entity of TABCORP subscribes for), and Jupiters must
allot and issue to TABCORP or to the relevant Related Entity
of TABCORP, the RPS or other equity securities referred to in
clause 8.3(b) (subject to the deemed withdrawal of the
relevant offer in accordance with that clause). TABCORP must
pay (or must procure that the relevant Related Entity of
TABCORP pays) to Jupiters the cash subscription amount for
those RPS or other equity securities referred to in clause
8.3(b) at the time of subscription. In the case of TABCORP or
a Related Entity of TABCORP subscribing for RPS, Jupiters must
promptly apply to ASX for official quotation of those RPS,
unless TABCORP agrees otherwise in writing. TABCORP's
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
obligations under this clause 8.3(c) are subject to the
Jupiters Shareholders having approved the allotment and issue
by Jupiters of the RPS, or other equity securities, to be
subscribed for pursuant to this clause 8.3(c) in accordance
with and for the purpose of ASX Listing Rule 7.1, or ASX
having granted a waiver of that approval requirement, and the
Regulatory Approvals referred to in paragraphs 1, 8, 9 and 10
of schedule 1 having been obtained in respect of that
allotment and issue (to the extent that such approvals or
waivers are required).
(d) (USE OF PROCEEDS) Jupiters must use the proceeds of any
subscription by TABCORP or a Related Entity of TABCORP in
accordance with clause 8.3(c) to fund for the purposes of
section 254K(b) of the Corporations Act the redemption by
Jupiters of the relevant RPS subject to an election by
Jupiters in accordance with clause 8.3(a)(i).
(e) (WITHDRAWAL OF CONVERSION REQUESTS OR ELECTIONS) TABCORP will
have no obligation under clause 8.3(c) to subscribe for RPS or
other equity securities in respect of an election by Jupiters
if the relevant request for conversion is first withdrawn by
the RPS Holder in accordance with clause 8.3(a)(ii). Jupiters
may not:
(i) withdraw any election, and may not consent to the
relevant RPS Holder withdrawing the relevant request
for conversion, in relation to an RPS in respect of
which TABCORP or any Related Entity of TABCORP has
already subscribed for RPS or other equity securities
in accordance with clause 8.3(c); or
(ii) withdraw, or seek to withdraw, an election pursuant
to clause 5.4 of the RPS Terms in respect of a
request for conversion received by Jupiters under
clause 4.3 of the RPS Terms, other than with the
prior consent of TABCORP or as contemplated by
clauses 8.3(a)(ii) and 8.3(e)(i).
(f) (EFFECT OF TERMINATION) TABCORP will have no obligation under
clause 8.3(c) to subscribe for RPS or other equity securities
in respect of an election by Jupiters in relation to an RPS
where:
(i) this Agreement has been terminated by either party
prior to Jupiters making that election in accordance
with clause 8.3(a); or
(ii) this Agreement has been terminated by:
(A) TABCORP pursuant to clause 17.1(a)(ii) or
(b); or
(B) Jupiters pursuant to clause 17.1(c).
Otherwise, termination of this Agreement by either TABCORP or
Jupiters will be without prejudice to the obligations of
TABCORP and Jupiters under clause 8.3(c), (d) and (e).
8.4 APPLICATION AND AMENDMENT OF THE RPS TERMS
Except to the extent set out in schedule 7:
(a) Jupiters will consult with TABCORP as to the application of
the RPS Terms and before the Jupiters Board exercises any
power or discretion pursuant to the RPS Terms; and
(b) Jupiters must consider in good faith any request by TABCORP
for the Jupiters Board to exercise a power or discretion
available to it pursuant to the RPS Terms, including any
discretion pursuant to clause 4.4 or 6.10 of the RPS Terms.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
8.5 EXERCISE OF CONSTITUTIONAL POWERS
(a) Jupiters will, if reasonably requested by TABCORP, exercise
its powers pursuant to rule 7.4(a) of the constitution of
Jupiters to require the production of a statutory declaration
by any RPS Holder nominated by TABCORP, and will promptly
provide a copy of any such statutory declaration to TABCORP.
(b) Jupiters will procure that the Jupiters Board at all times
promptly exercises its powers pursuant to rules 6.3(a), 7.1,
7.2, 7.4(c) and (d) of the constitution of Jupiters. Jupiters
will also procure that the Jupiters Board at all times
exercises its powers pursuant to rule 6.3(b) of the
constitution of Jupiters in accordance with the requirements
of the Queensland Office of Gaming Regulation of the
Queensland Treasury Department.
(c) Jupiters will consult with TABCORP in relation to the
performance of its obligations under this clause 8.5 and
provide to TABCORP such information reasonably required by
TABCORP (including up-to-date information regarding holdings
of RPS from the Jupiters Share Register) for the purposes of
TABCORP making a request pursuant to clause 8.5(a). Jupiters
will immediately notify TABCORP upon it having reason to
believe that a breach of the Shareholding Restrictions under
the constitution of Jupiters has occurred.
8.6 ACKNOWLEDGEMENT BY TABCORP
(a) Subject to clause 8.6(b), TABCORP acknowledges that it accepts
the manner that Jupiters proposes to apply and amend the RPS
Terms, as set out in schedule 7, and will not solicit or
encourage any person to assert any manner or proposed manner
of applying or amending the RPS Terms which is inconsistent
with the proposed manner set out in schedule 7.
(b) TABCORP will be entitled to assert or accept (and to procure
or allow any of its Related Entities to assert or accept), and
Jupiters will not be entitled to prevent TABCORP or any of its
Related Entities asserting or accepting, any manner or
proposed manner of applying or amending the RPS Terms which is
inconsistent with the proposed manner set out in schedule 7
(such an assertion or acceptance being a CONTRARY APPROACH),
in either or both of the following circumstances:
(i) where:
(A) a person other than TABCORP, Jupiters or any
of their respective Related Entities asserts
before a competent Regulatory Authority any
application of or amendment to the RPS Terms
that is inconsistent with any aspect of, or
is in addition to, the proposed manner of
applying and amending the RPS Terms set out
in schedule 7; and
(B) the Contrary Approach is made in the course
of the relevant proceedings before the
Regulatory Authority; and
(C) either TABCORP and Jupiters have agreed in
writing the Contrary Approach or, after
reasonable consultation in good faith,
TABCORP and Jupiters have not agreed the
Contrary Approach; or
(ii) where:
(A) a person other than TABCORP, Jupiters or any
of their respective Related Entities
successfully asserts before a competent
Regulatory Authority any
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
application of or amendment to the RPS Terms
that is inconsistent with any aspect of, or
is in addition to, the proposed manner of
applying and amending the RPS Terms set out
in schedule 7; and
(B) the Contrary Approach is made in response to
that successful assertion.
(c) The benefit to each of Jupiters and TABCORP of this clause 8.6
will survive termination of this Agreement.
9. TREATMENT OF JUPITERS OPTIONS
9.1 TREATMENT AFTER DATE OF AGREEMENT
Except as otherwise agreed in writing by TABCORP, Jupiters will not,
and will procure that each of the Jupiters Board and the Remuneration
Committee of the Jupiters Board does not, as the case may be:
(a) make any determination pursuant to the definition of PEER
GROUP in rule 2.1, or pursuant to rule 3.2, 5.3(a), 5.3(b),
5.5(b) or 5.6(d), of the terms of the Jupiters Option Plan;
(b) provide any agreement contemplated by rule 6.2 of the terms of
the Jupiters Option Plan;
(c) resolve any question of fact or interpretation pursuant to
rule 9(b), or exercise any discretion pursuant to rule 9(c),
of the terms of the Jupiters Option Plan; or
(d) make any amendment to the terms of the Jupiters Option Plan,
where, as a consequence, any one or more of the following occurs:
(e) the period for exercise of any Jupiters Option is extended;
(f) the number of Jupiters Options that are exercisable at any
time is increased;
(g) the earliest date for exercise of any Jupiters Option is
brought forward;
(h) the exercise price of any Jupiters Option is reduced; or
(i) the number of Jupiters Shares to be issued on exercise of any
Jupiters Option is increased.
However, nothing in this clause 9.1 will prevent the Jupiters Board or
the Remuneration Committee of the Jupiters Board from taking any action
if the failure to perform that action would (in the reasonable opinion
of the Jupiters Board or the Remuneration Committee of the Jupiters
Board formed after having taken advice from its legal advisers and
other appropriate advice) involve a breach of the duties of those
directors.
9.2 EXERCISE OF DISCRETION IN RELATION TO TRANSACTION
Jupiters will procure that the Remuneration Committee of the Jupiters
Board determines in accordance with rules 5.5(b) and 5.6(b),
respectively, of the Jupiters Option Plan to the effect that, in
relation to any Jupiters Options which become exercisable under rule
5.3(a)(i) of the Jupiters Option Plan as a result of the Ordinary
Scheme being approved by the Court or becoming unconditional (whichever
occurs later), those Jupiters Options:
(a) may be exercised during the period from (and including) the
date that the Ordinary Scheme is approved by the Court or
becomes unconditional (whichever occurs later) to the Record
Date for the Ordinary Scheme; and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(b) will not lapse on or before the Implementation Date for the
Option Scheme.
9.3 TREATMENT BEFORE DATE OF AGREEMENT
Except as fully and fairly disclosed in the Disclosure Statement,
Jupiters represents and warrants to TABCORP that each of Jupiters, the
Jupiters Board and the Remuneration Committee of the Jupiters Board has
not, prior to the date of this Agreement, taken any action contemplated
by clause 9.1(a) to (d) to the extent that such action affects any
Jupiters Option on issue as at the date of this Agreement.
10. CENTREBET BUSINESS
10.1 CENTREBET SALE AGREEMENT
Jupiters will use all reasonable endeavours to enter into and Complete,
and to procure that the relevant Related Entities of Jupiters enter
into and Complete, a Centrebet Sale Agreement as soon as practicable
after the date of this Agreement, and in any event prior to 31 October
2003. Jupiters will not, and will procure that each of its Related
Entities do not, without the prior consent of TABCORP, enter into, or
agree to enter into, any agreement, arrangement or understanding for
the sale or other disposal of Centrebet, Centrebet (UK), the Centrebet
Business or any of the Centrebet Assets, otherwise than on the terms of
a Centrebet Sale Agreement.
10.2 CONSULTATION WITH TABCORP
Jupiters must:
(a) make available to TABCORP the first draft of any Centrebet
Sale Agreement, and the first draft of any other agreement
related to or contemplated by the Centrebet Sale Agreement,
prior to (and so as to allow a reasonable time for TABCORP and
its Representatives to review and comment to Jupiters on the
drafts before) the distribution of those first drafts to any
potential purchasers of the Centrebet Business (POTENTIAL
PURCHASERS) and consider in good faith comments from TABCORP
and its Representatives on the drafts;
(b) make available to TABCORP the final draft of any Centrebet
Sale Agreement, and the final draft of any other agreement
related to or contemplated by the Centrebet Sale Agreement,
prior to (and so as to allow a reasonable time, and in any
case not less than 48 hours, for TABCORP and its
Representatives to review and comment to Jupiters on the
drafts before) the execution of those final drafts by Jupiters
and its relevant Related Entities and the relevant Potential
Purchaser and consider in good faith comments from TABCORP and
its Representatives on the drafts;
(c) keep TABCORP promptly and reasonably informed of developments
in the process for the Centrebet Sale, where those
developments have or may have an impact on the timing of the
Centrebet Sale Completion; and
(d) at TABCORP's reasonable request, provide TABCORP and its
Representatives access to the documents and other materials
which have been provided, or otherwise made available to, any
of the Potential Purchasers by Jupiters or any of its
Representatives (other than drafts of any Centrebet Sale
Agreement and any other agreements related to or contemplated
by the Centrebet Sale Agreement), except to the extent that
Jupiters
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
reasonably considers (acting in good faith and after taking
into account the commercial sensitivity of the relevant
information) that disclosure of those documents and other
materials to TABCORP will be materially prejudicial to the
commercial interests of the Centrebet Business.
10.3 CONDUCT OF CENTREBET BUSINESS BY JUPITERS
Prior to the Effective Date for the Ordinary Scheme, subject to the
operation of clause 10.1, Jupiters will be entitled to conduct, or to
procure the conduct of, the Centrebet Business in such manner as it
determines in its discretion, provided that:
(a) Jupiters will act in good faith having regard to the potential
that, if the Centrebet Sale Completion does not occur by 31
October 2003:
(i) full legal and beneficial title to Centrebet, the
Centrebet Business and the Centrebet Assets will,
upon transfer of the Scheme Shares to TABCORP
Acquirer under the Ordinary Scheme, remain with the
group of companies comprising Jupiters and its
Related Entities, as contemplated by clause 10.4(b);
and
(ii) TABCORP will be required to use reasonable endeavours
to enter into a Centrebet Sale Agreement, as
contemplated by clause 10.4(c);
(b) Jupiters will not, and will procure that Centrebet, Centrebet
(UK) and the other Related Entities of Jupiters do not, in
relation to the conduct of the Centrebet Business:
(i) take any action or refrain from taking any action
where that would, or would be reasonably likely to,
result in Jupiters or any of its Related Entities
(other than Centrebet and Centrebet (UK)):
(A) incurring any material liability or material
indebtedness;
(B) being deprived of any material benefit or
material entitlement; or
(C) being in breach in any material respect of a
provision of a law or treaty or a judgment,
ruling, order or decree of a Regulatory
Authority binding on it, or any other
document or agreement that is binding on it
or its assets; or
(ii) take any action or refrain from taking any action
where that would, or would be reasonably likely to,
result in Centrebet:
(A) incurring any material liability or material
indebtedness (other than where the
responsibility for that liability or
indebtedness is assumed by the purchaser
under a Centrebet Sale Agreement); or
(B) being in breach in any material respect of a
provision of a law or treaty or a judgment,
ruling, order or decree of a Regulatory
Authority binding on it, or any other
document or agreement that is binding on it
or its assets,
other than, in any case, action or inaction that is:
(iii) required or contemplated by this Agreement; or
(iv) consistent with the manner in which the Centrebet
Business was being conducted prior to 30 March 2003;
or
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(v) required to capitalise up to $13 million of
intercompany loans from Jupiters to the Centrebet
Business; and
(c) Jupiters will not, and will procure that Centrebet, Centrebet
(UK) and the other Related Entities of Jupiters do not, make
any capital expenditure in connection with the Centrebet
Business after the date of this Agreement in excess of $2
million.
10.4 CONDUCT OF CENTREBET BUSINESS BY TABCORP
(a) (APPLICATION OF CLAUSE) If the Centrebet Sale Completion has
not occurred by 31 October 2003, then the following provisions
apply.
(b) (TITLE REMAINS) Subject to clause 10.4(c), full legal and
beneficial title to Centrebet, the Centrebet Business and the
Centrebet Assets will, upon transfer of the Scheme Shares to
TABCORP Acquirer under the Ordinary Scheme, remain with the
group of companies comprising Jupiters and its Related
Entities in the same form, and to the same extent, as such
title existed as at the Announcement Date (or in such other
form, and to such other extent, as TABCORP consents in
writing).
(c) (TABCORP TO ATTEMPT SALE) If, after having complied with
clause 10.1, Jupiters and its relevant Related Entities have
not entered into a Centrebet Sale Agreement prior to 31
October 2003, or a Centrebet Sale Agreement entered into by
Jupiters and its relevant Related Entities lapses or has been
terminated in accordance with its terms on or before that
date, then:
(i) TABCORP will use reasonable endeavours to sell, or to
procure the sale of, Centrebet and Centrebet (UK) and
any other Centrebet Assets owned by Jupiters, or the
Centrebet Assets and the Centrebet Liabilities, to a
third party purchaser, by the entry into a Centrebet
Sale Agreement for that sale on or before 30 June
2004; and
(ii) if, after having complied with clause 10.4(c)(i),
TABCORP or any relevant Related Entity of TABCORP
does not enter into a Centrebet Sale Agreement
contemplated by that clause on or before 30 June
2004, TABCORP will have no further obligation to take
any steps to sell Centrebet, Centrebet (UK), the
Centrebet Business, the Centrebet Assets or the
Centrebet Liabilities.
(d) (SUPERVISION OF CENTREBET SALE) TABCORP will ensure that,
subject to the overall supervision of the TABCORP Board in
accordance with the duties of those directors to TABCORP, the
negotiations for the entry into, and the implementation and
completion of, any Centrebet Sale pursuant to clause 10.4(c)
are conducted by, or under the supervision of, a committee of
the TABCORP Board comprising one director of TABCORP as at the
date of this Agreement and, to the extent that they remain
directors of TABCORP at the relevant time, the TABCORP
Invitees.
(e) (CONDUCT OF CENTREBET BUSINESS) TABCORP will, from the
Effective Date for the Ordinary Scheme, be entitled to
conduct, or to procure the conduct of, the Centrebet Business
in such manner as it determines in its discretion (including
in accordance with such probity requirements as may be
determined by the TABCORP Board from time to time), provided
that:
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(i) TABCORP will act in good faith having regard to the
potential economic interests of the Scheme
Shareholders in the Centrebet Business, by virtue of
the Centrebet Notes contemplated by paragraph 1.3 of
schedule 6; and
(ii) any change made to the conduct of the Centrebet
Business between the Effective Date for the Ordinary
Scheme and the maturity date of the Centrebet Notes
contemplated by paragraph 1.3 of schedule 6 that:
(A) was required by TABCORP or any of its
Representatives (otherwise than in
accordance with a Centrebet Sale Agreement);
and
(B) is reasonably likely to have a material
adverse effect on the financial performance
or the value of the Centrebet Business,
must be based on advice from Senior Counsel to the
effect that such change is necessary to avoid or
remedy any actual or potential breach of probity or
licensing requirements, or any applicable law or
regulation, in any jurisdiction in which TABCORP or
any of its Related Entities (including, following the
Effective Date for the Ordinary Scheme, Jupiters or
any of its Related Entities) conducts, or proposes to
conduct, business or operations.
10.5 DISTRIBUTION OF VALUE OF CENTREBET BUSINESS
(a) (METHOD A) If:
(i) a Centrebet Sale Agreement is entered into by
Jupiters and its relevant Related Entities, and the
Centrebet Sale Completion occurs, on or before 31
October 2003; and
(ii) the Centrebet Tax Ruling Event occurs on or before 30
September 2003,
the Net Centrebet Proceeds (as defined in paragraph 2.1 of
schedule 6) will be distributed to Jupiters Shareholders by
implementation of the method in paragraph 1.1 of schedule 6.
(b) (METHOD B) If:
(i) a Centrebet Sale Agreement is entered into by
Jupiters and its relevant Related Entities, and the
Centrebet Sale Completion occurs, on or before 31
October 2003; and
(ii) either:
(A) the Centrebet Tax Ruling Event has not
occurred on or before 30 September 2003; or
(B) the ATO has provided a firm indication to
Jupiters or any of its Representatives that
the Commissioner of Taxation will not grant
either or both of the Centrebet Class Ruling
and the Centrebet Private Ruling,
the Net Centrebet Proceeds (as defined in paragraph 2.1 of
schedule 6) attributable to Scheme Shareholders will be
distributed to Scheme Shareholders by implementation of the
method in paragraph 1.2 of schedule 6.
(c) (METHOD C) If:
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(i) a Centrebet Sale Agreement is entered into by
Jupiters and its relevant Related Entities on or
before 31 October 2003, but the Centrebet Sale
Completion does not occur on or before that date; or
(ii) a Centrebet Sale Agreement has not been entered into
by Jupiters and its relevant Related Entities on or
before 31 October 2003,
the Net Centrebet Proceeds (as defined in paragraph 2.1 of
schedule 6) attributable to Scheme Shareholders will be
distributed to Scheme Shareholders by implementation of the
method in paragraph 1.3 of schedule 6.
11. REPRESENTATIONS AND WARRANTIES
11.1 JUPITERS' REPRESENTATIONS
Jupiters represents and warrants to TABCORP (on its own behalf and
separately as trustee for each Representative of TABCORP) that, except
as consented to by TABCORP:
(a) (STATUS) it, and each of its Related Entities, is a body
corporate duly incorporated under the laws of its jurisdiction
of incorporation or formation;
(b) (POWER FOR BUSINESS) it, and each of its Related Entities, has
the power to own its assets and to carry on its business as
now conducted or contemplated;
(c) (POWER FOR AGREEMENT) it has the corporate power to enter into
and perform or cause to be performed its obligations under
this Agreement and the Schemes and to carry out the
transactions contemplated by this Agreement and the Schemes;
(d) (CORPORATE AUTHORISATIONS) it has taken all necessary
corporate action to authorise the entry into and performance
of this Agreement and the Schemes and to carry out the
transactions contemplated by this Agreement and the Schemes;
(e) (AGREEMENT BINDING) this Agreement is its valid and binding
obligation enforceable in accordance with its terms, subject
to any necessary stamping;
(f) (TRANSACTIONS PERMITTED) the execution and performance by it
of this Agreement and the Schemes and each transaction
contemplated by this Agreement and the Schemes did not and
will not:
(i) violate in any respect a provision of a law or treaty
or a judgment, ruling, order or decree of a
Regulatory Authority binding on it, or its
constitution or any other document or agreement that
is binding on it or its assets; or
(ii) except as fully and fairly disclosed in the
Disclosure Statement and other than in relation to
any agreement or undertaking made available to
TABCORP and its Representatives as part of the
Jupiters Disclosure Material, give to any person any
rights of termination, amendment, acceleration or
cancellation of any agreement or undertaking by which
Jupiters or any of its Related Entities or any of
their respective assets are bound;
(g) (DISCLOSURE TO TABCORP) except as fully and fairly disclosed
in the Disclosure Statement, it has acted in good faith, and
used all reasonable endeavours, to ensure that it has
disclosed to TABCORP or its Representatives prior to the date
of this Agreement all
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
information which a prospective acquirer of the Jupiters
Shares and the RPS would reasonably require to make an
informed decision as to whether or not to proceed with such
acquisitions, including full details of all Material
Contracts, and, as at the date of this Agreement, it is not
aware of any material information relating to Jupiters or any
of its Related Entities or their respective businesses or
operations that has not been disclosed to TABCORP or its
Representatives;
(h) (PROVISION OF JUPITERS INFORMATION) the Jupiters Information:
(i) will be provided or included in the Scheme Booklet in
good faith and on the understanding that TABCORP,
TABCORP Acquirer and TABCORP Issuer and each of the
Officers of TABCORP, TABCORP Acquirer and TABCORP
Issuer will rely on that information for the purposes
of considering and approving the TABCORP Information
in the Scheme Booklet and approving the entry by
TABCORP, TABCORP Acquirer and TABCORP Issuer into the
Deed Poll, and that the Independent Expert will rely
upon that information for the purpose of preparing
the independent expert's report for inclusion in the
Scheme Booklet (as the case may be); and
(ii) will comply in all material respects with the
requirements of the Corporations Act, the ASX Listing
Rules and all relevant policy statements, practice
notes and other guidelines and requirements of ASIC;
(i) (JUPITERS INFORMATION TRUE) the Jupiters Information included
or incorporated by reference in the Scheme Booklet will not,
as at the date of dispatch of the Scheme Booklet to the
Jupiters Shareholders, the RPS Holders and the Jupiters
Optionholders or at the time of the Scheme Meetings, contain
any material statement which is misleading or deceptive nor
contain any material omission having regard to applicable
disclosure requirements;
(j) (UPDATE OF JUPITERS INFORMATION) it will, as a continuing
obligation, provide to TABCORP all such further or new
information of which it becomes aware (or ought reasonably to
have become aware, after making all reasonable and diligent
enquiries) that arises after the Scheme Booklet has been
dispatched until the date of the Scheme Meetings where that
may be necessary to ensure that there would be no breach of
clause 11.1(i) if it applied three Business Days after the
date upon which that information arose;
(k) (SECURITIES) its issued securities as at the date of this
Agreement are:
(i) 201,784,202 Jupiters Shares;
(ii) 1,901,735 RPS; and
(iii) 1,570,000 Jupiters Options,
and neither it nor any of its Related Entities is under any
obligation to issue any shares or securities convertible into
shares to any person and, except as specified above, no option
exists nor is Jupiters or any of its Related Entities subject
to any actual or contingent obligation to issue or convert
securities other than pursuant to the RPS and Jupiters Options
referred to above;
(l) (NO JUPITERS PRESCRIBED OCCURRENCE) other than as fully and
fairly disclosed in any written material made available to
TABCORP and its Representatives as part of the Jupiters
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
Disclosure Material, no member of the Jupiters Board, nor any
senior executive of Jupiters, is aware as at the date of this
Agreement (having made reasonable inquiries) of any Jupiters
Prescribed Occurrence having occurred between the Announcement
Date and the date of this Agreement;
(m) (SPECIAL DIVIDEND) it has, and will have as at the
Implementation Date for the Ordinary Scheme, sufficient
profits for the purposes of section 254T of the Corporations
Act to pay the Special Dividend, and the payment of the
Special Dividend will not cause Jupiters' franking account to
be in deficit (within the meaning of section 205-40 of the
1997 Tax Act) at the end of the income year in which the
Special Dividend is paid and will, subject to TABCORP
complying with its obligations under clause 4.4(b), be
consistent with its obligations under the US Note Deed;
(n) (CENTREBET DIVIDEND) in the case of implementation of the
method in paragraph 1.1 of schedule 6, it will have as at the
date of declaration by the Jupiters Board of the Centrebet
Dividend, and as at the Implementation Date for the Ordinary
Scheme, sufficient profits for the purposes of section 254T of
the Corporations Act to declare and pay (respectively) the
Centrebet Dividend, and the payment of the Centrebet Dividend
will not cause Jupiters' franking account to be in deficit
(within the meaning of section 205-40 of the 1997 Tax Act) at
the end of the income year in which the Centrebet Dividend is
paid and will, subject to TABCORP complying with its
obligations under paragraph 1.1(f) of schedule 6, be
consistent with its obligations under the US Note Deed;
(o) (CENTREBET ASSETS AND CENTREBET LIABILITIES) as at the date of
this Agreement and immediately before the Centrebet Sale
Completion, the Centrebet Assets are used exclusively in the
Centrebet Business and are not used in, and do not otherwise
relate to, the business or operations of Jupiters or any
Related Entity of Jupiters (other than Centrebet and Centrebet
(UK)), and the Centrebet Liabilities (together with the
intercompany loans referred to in clause 10.3(b)(v), salary
bonuses contingently payable for the year ending 30 June 2003
in accordance with the employment terms of the Centrebet
Employees and in the ordinary and usual course of the
Centrebet Business as it was conducted prior to 30 March 2003,
any income tax liability of Centrebet or in respect of the
conduct of the Centrebet Business incurred in the ordinary and
usual course of business and unrelated to the Centrebet Sale,
and any other material liability incurred after the date of
this Agreement where the responsibility for that liability has
been assumed by the purchaser under a Centrebet Sale
Agreement) constitute the material liabilities (whether actual
or contingent) of Centrebet and the Centrebet Business; and
(p) (CENTREBET EMPLOYEES) as at the date of this Agreement, the
Centrebet Employees are (together with the persons listed in
section 2 of Part D of schedule 5) all of the persons employed
by Jupiters or any of its Related Entities principally in
connection with the Centrebet Business.
11.2 TABCORP'S REPRESENTATIONS
TABCORP represents and warrants to Jupiters that, except as consented
to by Jupiters:
(a) (STATUS OF TABCORP) it is a body corporate duly incorporated
under the laws of Australia;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(b) (STATUS OF TABCORP ACQUIRER AND TABCORP ISSUER) each of
TABCORP Acquirer and TABCORP Issuer is, or will be when
nominated by TABCORP, a body corporate duly incorporated under
the laws of Australia and is, or will be when nominated by
TABCORP, a wholly-owned Related Entity of TABCORP;
(c) (POWER OF TABCORP FOR AGREEMENT) it has the corporate power to
enter into and perform or cause to be performed its
obligations under this Agreement and the Schemes and to carry
out the transactions contemplated by this Agreement and the
Schemes to be carried out by TABCORP;
(d) (POWER OF TABCORP ACQUIRER AND TABCORP ISSUER FOR SCHEMES)
each of TABCORP Acquirer and TABCORP Issuer has, or will have
when nominated by TABCORP, the corporate power to carry out
the transactions contemplated by the Schemes to be carried out
by TABCORP Acquirer or TABCORP Issuer (as the case may be);
(e) (CORPORATE AUTHORISATIONS FOR TABCORP) it has taken all
necessary corporate action to authorise the entry into and
performance of this Agreement and the Schemes and to carry out
the transactions contemplated by this Agreement and the
Schemes to be carried out by TABCORP;
(f) (CORPORATE AUTHORISATIONS FOR TABCORP ACQUIRER AND TABCORP
ISSUER) each of TABCORP Acquirer and TABCORP Issuer has, or
will have when nominated by TABCORP, taken all necessary
corporate action to carry out the transactions contemplated by
the Schemes to be carried out by TABCORP Acquirer or TABCORP
Issuer (as the case may be);
(g) (AGREEMENT BINDING) this Agreement is its valid and binding
obligation enforceable in accordance with its terms, subject
to any necessary stamping;
(h) (TRANSACTIONS PERMITTED) the execution and performance by it
of this Agreement and the Schemes and each transaction
contemplated by this Agreement and the Schemes did not and
will not:
(i) violate in any respect a provision of a law or treaty
or a judgment, ruling, order or decree of a
Regulatory Authority binding on it, or its
constitution or any other document or agreement that
is binding on it or its assets; or
(ii) except as fully and fairly disclosed to Jupiters or
its Representatives in accordance with clause
11.2(i), give to any person any rights of
termination, amendment, acceleration or cancellation
of any agreement or undertaking by which TABCORP or
any of its Related Entities or any of their
respective assets are bound;
(i) (DISCLOSURE TO JUPITERS) it has acted in good faith, and used
all reasonable endeavours, to ensure that it has disclosed to
Jupiters or its Representatives prior to the date of this
Agreement all information which a prospective acquirer of 48
million TABCORP Shares would reasonably require to make an
informed decision as to whether or not to proceed with such
acquisition;
(j) (PROVISION OF TABCORP INFORMATION) the TABCORP Information:
(i) will be provided in good faith and on the
understanding that Jupiters and each of the Officers
of Jupiters will rely on that information for the
purposes of preparing
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
the Scheme Booklet and proposing the Schemes, and
that the Independent Expert will rely upon that
information for the purpose of preparing the
independent expert's report for inclusion in the
Scheme Booklet (as the case may be); and
(ii) will comply in all material respects with the
requirements of the Corporations Act, the ASX Listing
Rules and all relevant policy statements, practice
notes and other guidelines and requirements of ASIC;
(k) (TABCORP INFORMATION TRUE) the TABCORP Information included or
incorporated by reference in the Scheme Booklet will not, as
at the date of dispatch of the Scheme Booklet to the Jupiters
Shareholders, the RPS Holders and the Jupiters Optionholders,
contain any material statement which is misleading or
deceptive nor contain any material omission having regard to
applicable disclosure requirements;
(l) (UPDATE OF TABCORP INFORMATION) it will, as a continuing
obligation, provide to Jupiters all such further or new
information of which it becomes aware (or ought reasonably to
have become aware, after making all reasonable and diligent
enquiries) that arises after the Scheme Booklet has been
dispatched until the date of the Scheme Meetings where that
may be necessary to ensure that there would be no breach of
clause 11.2(k) if it applied three Business Days after the
date upon which that information arose;
(m) (SECURITIES) its issued securities as at the date of this
Agreement are:
(i) 365,556,521 TABCORP Shares; and
(ii) 3,305,500 options to subscribe for TABCORP Shares,
and neither it nor any of its Related Entities is under any
obligation to issue any shares or securities convertible into
shares to any person and, except as specified above, no option
exists nor is TABCORP or any of its Related Entities subject
to any actual or contingent obligation to issue or convert
securities other than pursuant to the options referred to
above; and
(n) (NO TABCORP PRESCRIBED OCCURRENCE) between the Announcement
Date and the date of this Agreement, no TABCORP Prescribed
Occurrence has occurred.
11.3 TIMING OF REPRESENTATIONS
Each representation and warranty made under this clause 11 is made as
at the date of this Agreement and, unless otherwise expressly stated,
as at 8.00am on the Second Court Date.
11.4 RELIANCE BY PARTIES
Each party (the REPRESENTOR) acknowledges that in entering into this
Agreement the other party has relied on the representations and
warranties provided by the representor under this clause 11. The
representations and warranties provided by the representor are not
extinguished or affected by any investigation made by or on behalf of
the other party into the affairs or business of the representor or its
Related Entities.
11.5 SURVIVAL OF REPRESENTATIONS
The representations and warranties provided by each party under this
clause 11:
(a) are severable;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(b) will survive the termination of this Agreement; and
(c) are given with the intent that liability under them will not
be confined to breaches of them discovered prior to the date
of termination of this Agreement.
12. INDEMNITIES
12.1 JUPITERS' INDEMNITY
Subject to section 199A of the Corporations Act, Jupiters agrees with
TABCORP (on TABCORP's own behalf and separately as trustee on behalf of
each Representative of TABCORP) to indemnify and keep indemnified
TABCORP and its Representatives from and against all claims, actions,
proceedings, liabilities, obligations, damages, loss, harm, charges,
costs, expenses, duties and other outgoings of whatever nature and
however arising which they may suffer or incur by reason of or in
relation to:
(a) a breach by Jupiters of any of the representations and
warranties in clause 11.1;
(b) any breach by Jupiters of any covenant or undertaking on the
part of Jupiters under this Agreement or the Schemes; or
(c) any failure by Jupiters to comply with any obligation of
Jupiters under this Agreement or the Schemes.
This clause 12.1 must be read down to the extent necessary to ensure
that there is no breach of section 199A of the Corporations Act.
12.2 TABCORP'S INDEMNITY
Subject to section 199A of the Corporations Act, TABCORP agrees with
Jupiters (on Jupiters' own behalf and separately as trustee on behalf
of each Representative of Jupiters) to indemnify and keep indemnified
Jupiters and its Representatives from and against all claims, actions,
proceedings, liabilities, obligations, damages, loss, harm, charges,
costs, expenses, duties and other outgoings of whatever nature and
however arising which they may suffer or incur by reason of or in
relation to:
(a) a breach by TABCORP of any of the representations and
warranties in clause 11.2;
(b) any breach by TABCORP of any covenant or undertaking on the
part of TABCORP under this Agreement or the Schemes; or
(c) any failure by TABCORP to comply with any obligation of
TABCORP under this Agreement or the Schemes.
This clause 12.2 must be read down to the extent necessary to ensure
that there is no breach of section 199A of the Corporations Act.
12.3 SURVIVAL OF INDEMNITIES
Each indemnity provided by each party under this clause 12 will:
(a) be severable;
(b) be a continuing obligation;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(c) constitute a separate and independent obligation of the party
giving the indemnity from any other obligations of that party
under this Agreement; and
(d) survive the termination of this Agreement.
13. CONFIDENTIALITY
Each party must comply, and must procure that its Representatives
comply, with the terms of the Confidentiality & Standstill Agreement.
For the purposes of the Confidentiality & Standstill Agreement, each
party consents to the use of, and the disclosure on a confidential
basis to a Regulatory Authority of, its confidential information for
the purposes of satisfying any Condition and the implementation of the
transactions contemplated by this Agreement. Nothing in this clause 13
derogates from a party's obligations to comply with clause 16.
14. EXCLUSIVITY
14.1 EXCLUSIVITY
Subject to clauses 14.3 and 14.4, during the Exclusivity Period,
Jupiters must not, and must use its best endeavours to ensure that its
Representatives do not, except with the prior consent of TABCORP:
(a) solicit, encourage or invite, directly or indirectly, any
enquiries, discussions or proposals in relation to, or which
may reasonably be expected to lead to, a Third Party Proposal;
(b) initiate any discussions or negotiations in relation to, or
which may reasonably be expected to lead to, a Third Party
Proposal or which might otherwise lead to the Transaction not
proceeding;
(c) enter into any agreement, arrangement or understanding in
relation to or which may reasonably be expected to lead to a
Third Party Proposal (other than confidentiality arrangements
on ordinary commercial terms in relation to the Third Party
Proposal); or
(d) communicate to any person an intention to do any of the things
referred to in clauses 14.1(a) to (c).
14.2 NOTIFICATION OF APPROACHES
During the Exclusivity Period, Jupiters will promptly advise TABCORP
of:
(a) any approach, inquiry or proposal made to, and any attempt to
initiate negotiations or discussions with, Jupiters or any of
its Representatives with respect to any Third Party Proposal,
whether unsolicited or otherwise;
(b) any request for information relating to Jupiters or any of its
Related Entities or any of their businesses or operations or
any request for access to the books or records of Jupiters or
any of its Related Entities, which Jupiters has reasonable
grounds to suspect may relate to a current or future Third
Party Proposal;
(c) any provision by Jupiters or any of its Representatives of any
information relating to Jupiters or any of its Related
Entities or any of their businesses or operations to any
person in connection with or for the purposes of a current or
future Third Party Proposal; and
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(d) any action by Jupiters, or any intention of Jupiters to take
any action, in reliance on clause 14.4,
but nothing in this clause 14.2 will require Jupiters to disclose to
TABCORP the identity of any person taking any action referred to in
clause 14.2(a) or (b) or receiving any information referred to in
clause 14.2(c).
14.3 NORMAL PROVISION OF INFORMATION
Nothing in this clause 14 prevents Jupiters from:
(a) providing information to its Representatives;
(b) providing information required to be provided to ASX; or
(c) making presentations to brokers, portfolio investors and
analysts in the ordinary and usual course of business.
14.4 EXCEPTIONS TO EXCLUSIVITY
Jupiters may undertake any action that would otherwise be prohibited by
clause 14.1(c) or (d) (to the extent that it relates to clause 14.1(c))
in relation to a bona fide Third Party Proposal which was not solicited
by Jupiters and was not otherwise brought about as a result of any
breach by Jupiters of its obligations under this clause 14, where:
(a) the Third Party Proposal is made by a person who is of
reputable commercial standing; and
(b) the Jupiters Board, acting in good faith, determines after
having taken advice from its financial and legal advisers that
the Third Party Proposal is, or is reasonably likely to result
in a proposal by the person making the Third Party Proposal
that is:
(i) reasonably capable of being valued and completed,
taking into account all aspects of the Third Party
Proposal or the proposal and the person making it;
and
(ii) more favourable from a financial point of view to the
Jupiters Shareholders than the Ordinary Scheme,
taking into account all the terms and conditions of
the Third Party Proposal or the proposal.
15. PAYMENT OF LIQUIDATED AMOUNT
15.1 RATIONALE
Each of TABCORP and Jupiters acknowledges, for the purposes of this
clause 15, as follows.
(a) That the other party (and its Related Entities) will incur
significant costs if the Ordinary Scheme is not implemented in
accordance with this Agreement, including (as appropriate):
(i) reasonable advisory costs (including costs of
Advisers other than success fees);
(ii) reasonable out-of-pocket expenses including air
fares, hotel accommodation, and costs of convening
and holding shareholder or optionholder meetings;
(iii) commitment fees and other financing costs; and
(iv) reasonable costs of the Independent Expert,
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(such costs being, in the case of TABCORP, the TABCORP
PREPARATORY COSTS and, in the case of Jupiters, the JUPITERS
PREPARATORY COSTS).
(b) In the circumstances referred to in clause 15.1, each of
Jupiters and TABCORP has required the inclusion of this clause
15, in the absence of which it would not have entered into
this Agreement or otherwise agreed to implement the Ordinary
Scheme.
(c) Each of Jupiters and TABCORP (and the Jupiters Board and the
TABCORP Board) believe that the Ordinary Scheme will provide
significant benefits to it and its members and that it is
reasonable and appropriate that it agrees to the inclusion of
this clause 15, in order to:
(i) secure the other party's execution of this Agreement
and its agreement to implement the Ordinary Scheme;
and
(ii) reimburse the other party for the costs and losses
incurred by it and its Related Entities in the
circumstances set out in clause 15.2.
(d) Each of Jupiters and TABCORP acknowledges and agrees that the
amount payable by it pursuant to clause 15.2 is an amount that
is less than its genuine pre-estimate of, respectively, the
Jupiters Preparatory Costs and the TABCORP Preparatory Costs.
15.2 PAYMENT
(a) (PAYMENT BY JUPITERS) If:
(i) a Third Party Proposal is announced or made on or
before the Quit Date and within 12 months after the
date of the announcement or making of the Third Party
Proposal the person announcing or making the Third
Party Proposal has (together with its associates) a
relevant interest in at least 50% of the issued
ordinary shares of Jupiters or any of its Related
Entities, or acquires, directly or indirectly
(including by way of joint venture or dual listed
company structure) an interest in all or a
substantial part of the business or assets of
Jupiters or any of its Related Entities, or acquires
control of or merges or amalgamates with Jupiters or
any of its Related Entities;
(ii) the Jupiters Board fails to recommend, or withdraws
its recommendation of, the Ordinary Scheme or the
Transaction or makes a public statement that it no
longer supports the Ordinary Scheme or the
Transaction, other than:
(A) in relation to the Ordinary Scheme, in any
case in accordance with clause 7.4(b)
(provided that Jupiters demonstrates to
TABCORP that the dominant reason or reasons
of the Independent Expert for giving an
opinion that the Ordinary Scheme is not in
the best interests of the Jupiters
Shareholders does not or do not include the
existence of a bona fide Third Party
Proposal, which Third Party Proposal is
(either at that time or subsequently)
publicly announced, and also publicly
recommended by the Jupiters Board); and
(B) in relation to the RPS Scheme, in any case
in accordance with clause 7.4(c), (d) or
(e);
(iii) the Jupiters Board publicly recommends that a Third
Party Proposal is in the interests of Jupiters and
its members;
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(iv) ASIC raises an objection to the Ordinary Scheme as a
result of a material non-compliance by Jupiters with
any of its obligations under this Agreement and that
objection prevents the Ordinary Scheme from
proceeding;
(v) the Court fails to approve the terms of the Ordinary
Scheme for which the approval of the Jupiters
Shareholders has been obtained as a result of a
material non-compliance by Jupiters with any of its
obligations under this Agreement;
(vi) the Effective Date for the Ordinary Scheme has not
occurred prior to the Quit Date as a consequence of a
material non-compliance by Jupiters with any of its
obligations under this Agreement; or
(vii) TABCORP terminates this Agreement in accordance with
the provisions of clause 17.1(a)(ii),
then, subject to this Agreement, Jupiters must pay to TABCORP
the amount of $12.2 million (exclusive of GST) as compensation
for the TABCORP Preparatory Costs. For the avoidance of doubt,
that compensation for the TABCORP Preparatory Costs will not
be payable if Jupiters terminates this Agreement pursuant to
clause 3.7 or 17.1(a).
(b) (PAYMENT BY TABCORP) If:
(i) the Effective Date for the Ordinary Scheme has not
occurred prior to the Quit Date as a consequence of a
material non-compliance by TABCORP with any of its
obligations under this Agreement;
(ii) Jupiters terminates this Agreement in accordance with
the provisions of clause 17.1(a)(ii);
(iii) ASIC raises an objection to the Ordinary Scheme as a
result of a material non-compliance by TABCORP with
any of its obligations under this Agreement and that
objection prevents the Ordinary Scheme from
proceeding;
(iv) the Court fails to approve the terms of the Ordinary
Scheme for which the approval of the Jupiters
Shareholders has been obtained as a result of a
material non-compliance by TABCORP with any of its
obligations under this Agreement; or
(v) TABCORP terminates this Agreement in accordance with
clause 3.7(a) on the basis of the Condition in clause
3.1(k), other than in circumstances where TABCORP
demonstrates to Jupiters that the dominant reason of
the relevant lenders for the non-satisfaction of the
relevant conditions precedent to the commitment
letter or the loan facilities is the occurrence of a
material adverse change in the business or financial
condition of Jupiters and its Related Entities (taken
as a whole), whether or not non-satisfaction of the
relevant conditions precedent also arises as a result
of other matters or events,
then, subject to this Agreement, TABCORP must pay to Jupiters
the amount of $7.5 million (exclusive of GST) as compensation
for the Jupiters Preparatory Costs. For the avoidance of
doubt, that compensation for the Jupiters Preparatory Costs
will not be payable if TABCORP terminates this Agreement
pursuant to clause 3.7 (other than as contemplated by clause
15.2(b)(v)) or 17.1(a), (b) or (d).
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
15.3 COMPLIANCE WITH LAW
(a) If a court, arbitral tribunal or the Australian Takeovers
Panel determines that the agreement by each of Jupiters and
TABCORP to make the payment, or the making of any payment, to
the other pursuant to clause 15.2:
(i) constituted, or constitutes, or would constitute, a
breach of the fiduciary or statutory duties of the
Jupiters Board to Jupiters or of the TABCORP Board to
TABCORP (as the case may be); or
(ii) constituted, or constitutes, or would constitute,
unacceptable circumstances within the meaning of the
Corporations Act; or
(iii) was, or is, or would be, unlawful for any other
reason,
then, to that extent (and only to that extent), Jupiters or
TABCORP will not be obliged to make that payment and Jupiters
or TABCORP (as the case may be) must refund to TABCORP or
Jupiters (as the case may be) that payment if already made. To
the extent reasonably possible, Jupiters or TABCORP must
ensure that any such determination applies only to the extent
that the payment is made or to be made in excess of the amount
of the actual costs incurred, directly or indirectly, by
TABCORP or Jupiters (as the case may be) and its Related
Entities as a result of the Ordinary Scheme not being
implemented in accordance with this Agreement (including those
described in clause 15.1(a)).
(b) Each of Jupiters and TABCORP must not make, nor may it cause
or permit to be made, any application to a court, arbitral
tribunal or the Australian Takeovers Panel for or in relation
to a determination referred to in clause 15.3(a).
15.4 DEMAND AND TIME FOR PAYMENT
Any demand for payment under clause 15.2 must be in writing. Payment
under clause 15.2 must be made by Jupiters or TABCORP (as the case may
be) within seven business days of receipt of the demand by the other
party.
15.5 CLAUSE WITHOUT PREJUDICE
Nothing in this clause affects any rights a party may have against the
other party in the event of any breach of this Agreement by the other
party.
16. PUBLIC ANNOUNCEMENTS
16.1 PUBLIC ANNOUNCEMENTS
Subject to clause 16.2, no public announcement or disclosure of the
Transaction or any other transaction the subject of this Agreement or
any Scheme may be made other than in a form approved by each party
(acting reasonably), but each party must use all reasonable endeavours
to provide such approval as soon as practicable. This clause 16.1 will
not apply to any public announcement or disclosure made by Jupiters
regarding the disposal of the Centrebet Business, provided that
Jupiters has otherwise complied with, and the announcement is
consistent with, clause 10.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
16.2 REQUIRED DISCLOSURE
Where a party is required by law or the ASX Listing Rules to make any
announcement or to make any disclosure in connection with the
Transaction or any other transaction the subject of this Agreement or
any Scheme, it may do so only after it has given at least one Business
Day's notice, or such lesser period as may be required or permitted by
the effect of a legal obligation, but in any event prior notice, to the
other party and has consulted with the other party and its legal
advisers and taken all reasonable steps to restrict that disclosure to
the greatest extent possible.
16.3 STATEMENTS ON TERMINATION
The parties must act in good faith and use all reasonable endeavours to
issue an agreed statement or statements in respect of any termination
of negotiations provided for in this Agreement and will make no
statements or disclosure in respect of the termination of this
Agreement except in accordance with clauses 16.1 and 16.2.
17. TERMINATION
17.1 TERMINATION
Without prejudice to any other rights of termination under this
Agreement:
(a) either party may terminate this Agreement by notice to the
other party if:
(i) the Effective Date for the Ordinary Scheme does not
occur on or before the Quit Date (other than as the
result of a breach by that party of its obligations
under this Agreement);
(ii) the other party is in material breach of its
obligations under this Agreement (including any
material breach of a representation or warranty
provided under this Agreement) at any time before the
Second Court Date and has not rectified that breach
within 5 Business Days (or any shorter period ending
at 5.00pm on the day before the Second Court Date)
after it is given notice by the first party
specifying that breach and requiring it to be
rectified;
(iii) at the Scheme Meeting relating to the Ordinary Scheme
or any adjournment or postponement thereof at which
the Ordinary Scheme is voted on, the Ordinary Scheme
is not approved by the necessary majorities of the
Jupiters Shareholders; or
(iv) any court or Regulatory Authority has issued any
order, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise
prohibiting the Ordinary Scheme, or has refused to do
anything necessary to permit the Ordinary Scheme, and
such order, decree, ruling or other action has become
final and not appealable;
(b) TABCORP may terminate this Agreement at any time prior to the
Second Court Date by notice to Jupiters if the Jupiters Board
withdraws its recommendation of the Ordinary Scheme (whether
alone or together with any other Scheme or the Transaction as
a whole) or makes a public statement that it no longer
supports the Ordinary Scheme (whether alone or together with
any other Scheme or the Transaction as a whole);
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(c) Jupiters may terminate this Agreement at any time prior to the
Second Court Date by notice to TABCORP if a bona fide Third
Party Proposal is publicly announced which the Jupiters Board,
acting in good faith, determines after having taken advice
from its financial and legal advisers is:
(i) reasonably capable of being valued and completed,
taking into account all aspects of the Third Party
Proposal; and
(ii) more favourable from a financial point of view to the
Jupiters Shareholders than the Ordinary Scheme,
taking into account all the terms and conditions of
the Third Party Proposal,
and the Jupiters Board publicly recommends that the Third
Party Proposal is in the interests of Jupiters and its
members; and
(d) TABCORP may terminate this Agreement at any time prior to the
orders of the Court approving the Ordinary Scheme having been
made by notice to Jupiters if any judgment, ruling, order or
decree of a Regulatory Authority binding on Jupiters or
TABCORP prohibits the making or implementation of any election
by Jupiters in accordance with clause 8.2(a)(i) or 8.3(a)(i),
or both.
17.2 NOTICE OF BREACH
Each party must give notice to the other party as soon as practicable
after it becomes aware of a breach by it of its obligations under this
Agreement (including any breach of a representation or warranty
provided under this Agreement).
17.3 EFFECT OF TERMINATION
In the event of termination of this Agreement by either TABCORP or
Jupiters pursuant to this clause 17 or clause 3.7, each party:
(a) will be released from its obligations under this Agreement
(except its obligations under clauses 8.2(b) (subject to
clause 8.2(c)), 8.3(c) (subject to clause 8.3(f)), 8.6, 12,
13, 15, 16.3, 18 and 19.9); and
(b) will retain the rights it has or may have against the other
party in respect of any past breach of this Agreement.
18. GST
18.1 DEFINITIONS
In this clause 18:
CONSIDERATION has the meaning given by the GST Law.
GST has the meaning given by the GST Law.
GST AMOUNT means in relation to a Taxable Supply the amount of GST
payable in respect of that Taxable Supply.
GST GROUP has the meaning given by the GST Law.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
GST LAW has the meaning given by the A New Tax System (Goods and
Services Tax) Act 1999 (Cth), or, if that Act does not exist means any
Act imposing or relating to the imposition or administration of a goods
and services tax in Australia and any regulation made under that Act.
INPUT TAX CREDIT has the meaning given by the GST Law and a reference
to an Input Tax Credit entitlement of a party includes an Input Tax
Credit for an acquisition made by that party but to which another
member of the same GST Group is entitled under the GST Law.
RECIPIENT has the meaning given by the GST Law.
TAX INVOICE has the meaning given by the GST Law.
TAXABLE SUPPLY has the meaning given by the GST Law excluding the
reference to section 84-5 of the A New Tax System (Goods and Services
Tax) Act 1999 (Cth).
18.2 GST TO BE ADDED TO AMOUNTS PAYABLE
If GST is payable on a Taxable Supply made under, by reference to or in
connection with this Agreement, the party providing the Consideration
for that Taxable Supply must also pay the GST Amount as additional
Consideration. This clause does not apply to the extent that the
Consideration for the Taxable Supply is expressly stated to be GST
inclusive. Payment of the GST Amount is conditional upon the prior
delivery to the Recipient of the supply of a valid Tax Invoice.
18.3 LIABILITY NET OF GST
Any reference in the calculation of Consideration or of any indemnity,
reimbursement or similar amount to a cost, expense or other liability
incurred by a party, must exclude the amount of any Input Tax Credit
entitlement of that party in relation to the relevant cost, expense or
other liability. A party will be assumed to have an entitlement to a
full Input Tax Credit unless it demonstrates otherwise prior to the
date on which the Consideration must be provided.
18.4 COST EXCLUSIVE OF GST
Any reference in this Agreement (other than in the calculation of
Consideration) to cost, expense or other similar amount (COST), is a
reference to that Cost exclusive of GST.
18.5 GST OBLIGATIONS TO SURVIVE TERMINATION
This clause 18 will continue to apply after expiration or termination
of this Agreement.
19. MISCELLANEOUS
19.1 NOTICES
Any notice, demand, consent or other communication (a NOTICE) given or
made under this Agreement:
(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 or
by hand or fax to the address or fax number below or the
address (being an address in Australia) or fax number last
notified by the intended recipient to the sender:
(i) to TABCORP: TABCORP Holdings Limited
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
5 Bowen Crescent
Melbourne Victoria 3000
Attention: The Company Secretary
Fax No: (03) 9868 2726
(ii) to Jupiters: Jupiters Limited
Level 9, Niecon Tower
17 Victoria Avenue
Broadbeach Queensland 4218
Attention: The Company Secretary
Fax No: (07) 5570 2194; 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); and
(iii) in the case of fax, on receipt by the sender of a
transmission control report from the dispatching
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.
19.2 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.
19.3 REMEDIES CUMULATIVE
The rights, powers and remedies provided to each party in this
Agreement are in addition to, and do not exclude or limit, any right,
power or remedy provided by law or equity or by any agreement.
19.4 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties as at
the date of this Agreement with respect to its subject matter and
supersedes all prior agreements and understandings between the parties
in connection with it.
19.5 AMENDMENT
No amendment or variation of this Agreement is valid or binding on a
party unless made in writing executed by TABCORP and Jupiters which may
so make an amendment or variation notwithstanding that one or more
other parties or persons may be entitled to the benefit of all or any
of the provisions of this Agreement.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
19.6 ASSIGNMENT
The rights and obligations of each party under this Agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
consent of the other party.
19.7 NO MERGER
The rights and obligations of the parties will not merge on the
completion of any transaction contemplated by this Agreement. They will
survive the execution and delivery of any assignment or other document
entered into for the purpose of implementing a transaction.
19.8 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 Agreement and the transactions
contemplated by it.
19.9 COSTS AND STAMP DUTY
Except as provided below, each party must bear its own costs, charges
and expenses arising out of or incidental to the negotiations leading
to or the preparation of this Agreement and the proposed, attempted or
actual implementation of this Agreement. TABCORP must pay, or procure
that TABCORP Acquirer or TABCORP Issuer (as relevant) pays, any stamp
duty that is payable on the transfer to TABCORP Acquirer of the
Jupiters Shares or the RPS pursuant to the Ordinary Scheme or the RPS
Scheme, or on the issue of TABCORP Shares or Centrebet Notes as part of
the Ordinary Scheme Consideration.
19.10 SEVERABILITY OF PROVISIONS
Any provision of this Agreement 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 Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
19.11 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Queensland. Each party
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there in connection with matters concerning this
Agreement.
19.12 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 1
REGULATORY APPROVALS
In this schedule:
CHIEF EXECUTIVE has the meaning given in the Casino Control Act 1982 (Qld) or
Gaming Machine Act 1991 (Qld) (as the case requires).
GOVERNOR means the Governor in Council for the State of Queensland.
MINISTER means the Treasurer (or other Minister of the Crown for the time being
charged with the administration of the Casino Control Act 1982 (Qld) or the Keno
Act 1996 (Qld)) of the State of Queensland or the Treasurer (or other Minister
of the Crown for the time being charged with the administration of the Gaming
Control Act (NT)) of the Northern Territory, as the case requires.
1. The Governor consenting to TABCORP and its Related Entities having
voting power in excess of 10% in Jupiters (on the basis that TABCORP
and its Related Entities will acquire voting power of 100% in
Jupiters), for the purposes of the Brisbane Casino Agreement, the
Jupiters Casino Agreement and the constitution of Jupiters.
2. The Minister confirming that they have caused to be undertaken such
investigations as are necessary to satisfy the Governor that TABCORP,
TABCORP Acquirer and all persons (in the opinion of the Minister) to be
associated or connected with the ownership, administration or
management of the operations or business of Jupiters, Jupiters
Custodian Pty Ltd or the responsible entity of the Breakwater Island
Trust after the Implementation Date for the Ordinary Scheme are
suitable persons to be associated or connected with the management and
operations of the hotel and casino complexes and casinos known as
Conrad Treasury, Conrad Jupiters and Jupiters Townsville, for the
purposes of the Casino Control Act 1982 (Qld), and the Minister
confirming that the Governor is satisfied as to these matters.
3. The Minister consenting to TABCORP and its Related Entities having a
relevant interest in excess of 5% of the total number of RPS on issue,
for the purposes of the Brisbane Casino Agreement, the Jupiters Casino
Agreement and the constitution of Jupiters.
4. The Minister consenting to TABCORP and its Related Entities having
voting power in excess of 5% in Jupiters, for the purposes of the
Brisbane Casino Agreement, the Jupiters Casino Agreement and the
constitution of Jupiters.
5. The Minister consenting to TABCORP and its Related Entities being
entitled to in excess of 5% of the units in the Jupiters Trust, for the
purpose of the trust deed dated 21 April 1983 for the Jupiters Trust.
6. The Minister consenting to TABCORP and its Related Entities being
entitled to in excess of 5% of the units in the Breakwater Island
Trust, for the purpose of the Breakwater Casino Agreement and the
constitution of the Breakwater Island Trust.
7. The Chief Executive granting for the purpose of the Casino Control Act
1982 (Qld) casino key employee licences to the directors and senior
management of TABCORP and its Related Entities who are to act as casino
key employees (as defined in the Casino Control Act 1982 (Qld)) in
relation
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
to any one or more of the hotel and casino complexes and casinos known
as Conrad Treasury, Conrad Jupiters and Jupiters Townsville, to the
extent that such persons are required to hold such licences.
8. The Governor consenting to the issue to TABCORP and its Related
Entities of voting shares in Jupiters, to the extent contemplated by
this Agreement, for the purposes of the Brisbane Casino Agreement, the
Jupiters Casino Agreement and the constitution of Jupiters.
9. The Minister consenting to the issue to TABCORP and its Related
Entities of non-voting shares in Jupiters or securities convertible
into voting shares in Jupiters, to the extent contemplated by this
Agreement, for the purposes of the Brisbane Casino Agreement, the
Jupiters Casino Agreement and the constitution of Jupiters.
10. The Minister consenting to TABCORP and its Related Entities having a
relevant interest in excess of 5% of the non-voting shares (if any) of
the class to be issued to TABCORP and its Related Entities pursuant to
this Agreement, for the purposes of the Brisbane Casino Agreement, the
Jupiters Casino Agreement and the constitution of Jupiters.
11. The Minister consenting to the appointment of the nominees of TABCORP
to the Jupiters Board, as contemplated by this Agreement, for the
purposes of the Brisbane Casino Agreement, the Jupiters Casino
Agreement and the constitution of Jupiters.
12. The Minister consenting to the appointment of nominees of TABCORP to
the board of directors of Jupiters Custodian Pty Ltd (ACN 067 888 680),
for the purposes of the Jupiters Casino Agreement and the constitution
of Jupiters Custodian Pty Ltd.
13. The Minister consenting to the appointment of nominees of TABCORP to
the board of directors of the responsible entity of the Breakwater
Island Trust, for the purposes of the Breakwater Casino Agreement and
the constitution of the responsible entity of the Breakwater Island
Trust.
14. The Chief Executive confirming that TABCORP and any other associate of
Jupiters Machine Gaming Pty Ltd (ACN 078 963 050) are suitable persons
to be associated with the supply operations of Jupiters Machine Gaming
Pty Ltd, for the purposes of the Gaming Machine Act 1991 (Qld).
15. The Minister confirming that, if the Ordinary Scheme is implemented,
Jupiters Gaming Pty Ltd (ACN 071 366 446) will be a suitable person to
continue to hold a keno licence, for the purposes of the Keno Act 1996
(Qld).
16. The Minister confirming that TABCORP and any other persons who are
business or executive associates of Jupiters Gaming Pty Ltd (ACN 071
366 446) will be suitable persons to be associated with the operations
of Jupiters Gaming Pty Ltd, for the purposes of the Keno Act 1996
(Qld).
17. The Minister consenting to the appointment of nominees of TABCORP to
the board of directors of Jupiters Gaming Pty Ltd (ACN 071 366 446), to
the extent that those nominees are not also directors of Jupiters, for
the purposes of the Keno Agreement between Jupiters, Jupiters Gaming
Pty Ltd and the State of Queensland, and the constitution of Jupiters
Gaming Pty Ltd.
18. The Chief Executive granting for the purpose of the Gaming Machine Act
1991 (Qld) key monitoring employee licences to the directors and senior
management of TABCORP and its Related Entities who are to act as key
officers (as defined in the Gaming Machine Act 1991 (Qld)) in relation
to the operations of Jupiters Machine Gaming Pty Ltd, to the extent
that such persons are required to hold such licences.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
19. If the Centrebet Sale Completion does not occur by 31 October 2003, the
Northern Territory Racing Commission consenting to changes to the
structure of Jupiters, the directors of Jupiters and any persons
concerned in the management or control of Jupiters, and to the issue
and (if required) redemption of securities in Jupiters, in each case as
contemplated by this Agreement, for the purposes of the sports
bookmaker licence issued to Centrebet.
20. If the Centrebet Sale Completion does not occur by 31 October 2003, the
Northern Territory Racing Commission consenting to changes to the
directors of Centrebet and persons concerned in the management or
control of Centrebet, in each case as proposed by TABCORP to take
effect after the changes to the Jupiters Board contemplated by this
Agreement and in each case for the purpose of the sports bookmaker
licence issued to Centrebet.
21. If the Centrebet Sale Completion does not occur by 31 October 2003, the
Northern Territory Racing Commission confirming that, if the Ordinary
Scheme is implemented, Centrebet would be a fit and proper person to
continue to hold its sports bookmaker licence, for the purposes of the
Racing and Betting Act (NT).
22. The Minister confirming that, if the Option Scheme becomes Effective,
the Minister will not pursuant to the Casino Control Act 1982 (Qld)
seek the suspension or cancellation of any casino licence or casino
lease on the grounds that, under the Option Scheme, Jupiters might be
said to be compounding with its creditors.
23. The Minister waiving in writing for the purposes of the Brisbane Casino
Agreement any liability to forfeiture of registered lease No 17750245
which may arise due to the Option Scheme becoming Effective.
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SCHEDULE 2
TIMETABLE
DATE EVENT
---- -----
9 July 2003 Lodge draft Scheme Booklet with ASIC
9 July 2003 Apply for Court date for Court hearing to order convening of Scheme Meetings
25 July 2003 Lodge final draft Scheme Booklet with ASIC
29 July 2003 Receive sign-off on Scheme Booklet from ASIC
30 July 2003 Court hearings to obtain orders to convene Scheme Meetings
30 July 2003 Scheme Booklet registered by ASIC and lodged with ASX
31 July 2003 Mailing of notifications of Control Event (as defined in the RPS Terms) to RPS Holders
By 11 August 2003 Printing of Scheme Booklet, proxy forms and Ordinary Scheme Consideration election forms
By 11 August 2003 Mailing of Scheme Booklets and accompanying forms to Jupiters Shareholders, RPS Holders and Jupiters
Optionholders
13 August 2003 Lodge Appendix 4E preliminary final reports for both Jupiters and TABCORP with ASX
19 September 2003 Centrebet Tax Ruling Event
19 September 2003 Centrebet Sale Completion
22 September 2003 Scheme Meetings
24 September 2003 Court hearings to obtain orders approving the Schemes
24 September 2003 EFFECTIVE DATE: Lodge office copies of Court orders approving the Schemes with ASIC
24 September 2003 Jupiters Shares suspended from trading on the stock market conducted by ASX
1 October 2003 RECORD DATE: Determine entitlements to consideration and other entitlements under the Schemes by
reference to the Jupiters Share Register and the Jupiters Option Register at that time
1 October 2003 Final date for receipt of elections as to form of Ordinary Scheme Consideration
2 October 2003 Announce to ASX details of the scale back (if any) and allocation of Ordinary Scheme Consideration
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
DATE EVENT
---- -----
2 October 2003 New TABCORP Shares begin trading on the stock market conducted by ASX on a deferred settlement basis
7 October 2003 IMPLEMENTATION DATE: Transfer Scheme Shares and Scheme RPS to TABCORP Acquirer, and effect cancellation
of Scheme Options
By 14 October 2003 Issue new TABCORP Shares and Centrebet Notes (if relevant) and provide other non-cash entitlements under
the Ordinary Scheme. Mail cheques for cash consideration under the Schemes
NOTE:
The timetable above has been prepared on the basis of the parties' best
estimate, as at the date of this Agreement, of the likely timing of key events
in relation to the Transaction. It is possible that certain of those events may
be, or may reasonably become expected by the parties to be, delayed for reasons
outside of the control of the parties, namely:
- - the period of consideration by ASIC of the draft Scheme Booklet may
extend beyond 29 July 2003;
- - the Court hearings to obtain orders to convene the Scheme Meetings may
continue after 30 July 2003;
- - the Centrebet Tax Ruling Event may not occur by 19 September 2003;
- - the Centrebet Sale Completion may not occur by 19 September 2003; or
- - the Court hearings to obtain orders approving the Schemes may continue
after 24 September 2003 (or otherwise for more than one Business Day).
In that case, the parties will consult in good faith with the aim of agreeing a
substitute timetable (with, to the extent possible, the same relative timing
between events), having regard to (amongst other things):
(a) the desire of each party to complete the Transaction as soon as is
practicable;
(b) the 30 September 2003 deadline under clause 10.5(b) for the Centrebet
Tax Ruling Event (assuming that the ATO has not earlier provided a firm
indication to Jupiters or any of its Representatives that the
Commission of Taxation will not make either or both of the Centrebet
Class Ruling and the Centrebet Private Ruling);
(c) the 31 October 2003 deadline under clause 10.5 for the Centrebet Sale
Completion; and
(d) the implications under the RPS Terms and for the RPS Scheme of the
timing of the Scheme Meetings and of the Implementation Date for the
Ordinary Scheme.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 3
MATERIAL CONTRACTS
1. Casino Management Agreements
2. Brisbane Casino Agreement
3. Breakwater Casino Agreement
4. Jupiters Casino Agreement
5. US Note Deed
6. Trust Deed dated 21 April 1983 between Jupiters Management Limited and
the Trustees, Executors and Agency Company Limited (the then trustee of
the Jupiters Trust) related to the establishment of the Jupiters Trust
7. Development Agreement dated 20 December 2000 between Jupiters and the
State of Queensland related to the development of the Gold Coast
Convention and Exhibition Centre (GCCEC)
8. Deed of Election dated 8 February 2002 between Jupiters, Multiplex
Constructions Pty Ltd and the State of Queensland related to the
construction of the GCCEC
9. Management Agreement dated 20 December 2000 between Jupiters and the
State of Queensland related to the management of the GCCEC
10. Construction Agreement dated 8 February 2002 between Jupiters and
Multiplex Constructions Pty Ltd related to the construction of the
GCCEC
11. Design Consultancy Agreement dated 20 December 2000 between Jupiters
and Weathered Howe Pty Ltd related to the construction of the GCCEC
12. Primary Consultancy Agreement dated 24 March 2002 between Jupiters and
Peter Hunt Pty Ltd (draft only)
13. Project Management Consultancy Agreement dated 27 November 2001 between
Jupiters and Resource Coordination Partnership Pty Ltd (draft only)
14. Programming Consultancy Agreement dated 27 November 2002 between
Jupiters and Resource Coordination Partnership Pty Ltd (draft only)
15. Management Agreement dated 21 December 1999 between Jupiters,
Breakwater Island Limited and Perpetual Trustees Queensland Limited (as
the then trustee of the Breakwater Island Trust) related to the
management of the Jupiters Townsville Casino
16. Management Agreement dated 13 December 1991 between the Council of the
City of Townsville, the Council of the City of Thuringowa, Breakwater
Island Limited and ANZ Executors and Trustee Company Ltd (as the then
trustee of the Breakwater Island Trust) related to the management of
the Townsville Breakwater Entertainment Centre
17. Management Agreement dated 11 December 1998 between Jupiters Gaming
(NSW) Pty Ltd (formerly Club Gaming Systems Pty Ltd) and ClubKeno
Holdings Pty Ltd related to the conduct of the game of Keno in New
South Wales
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
18. Keno Agreement dated 4 February 1997 between Jupiters, Jupiters Gaming
Pty Ltd (JUPITERS GAMING) and the State of Queensland
19. Cooperation Agreement dated 18 November 2002 between Jupiters and
Shanghai Environmental Protection Market Company Limited
20. Supplementary Contract (No 1) dated 5 March 2003 between Jupiters and
Shanghai Environmental Protection Market Company Limited
21. Framework Agreement dated 19 September 2002 between Jupiters and
Shanghai Environmental Protection Market Company Limited
22. Technical Service and Technical Cooperation Agreement dated 15 April
2003 between Jupiters and Shanghai Environmental Protection Market
Company Limited (draft only)
23. Agency Agreement dated 2 March 2000 between Jupiters Machine Gaming Pty
Ltd (JUPITERS MACHINE GAMING) and Aristocrat Leisure Industries Pty Ltd
(ARISTOCRAT) related to the appointment of Jupiters Machine Gaming as
Aristocrat's agent in Queensland for the supply of gaming equipment and
licensing of certain games
24. Manufacturing Agreement dated 27 July 2002 between Jupiters Technology
Pty Ltd and Hartec Limited for the manufacture of gaming-related
equipment
25. Multi-Option Syndicated Revolving Facility Agreement dated April 2001
between Australia and New Zealand Banking Group Limited (ANZ), Bank of
Western Australia Limited, BOS International (Australia) Limited and
Westpac Banking Corporation (as lenders), Jupiters (as the borrower)
and Jupiter Custodian Pty Ltd (JUPITER CUSTODIAN) (in its own capacity
and as trustee of the Jupiters Trust), Jupiters Machine Gaming,
Centrebet, Jupiters Gaming, Jupiters Internet Gaming Pty Ltd,
jupiters.com. Pty Ltd, AWA Limited, AWA Gaming Services Pty Ltd and
Jupiters International Pty Ltd (as guarantors)
26. Master Lease Agreement dated 28 March 1999 between JMJ Fleet Lease Pty
Ltd and Jupiters Development Limited
27. Services Agreement dated 17 November 2000 between AWA Limited and
Advantra Pty Ltd related to the provision of desktop support and
maintenance and warranty repair and replacement services by AWA to
Advantra customers
28. Key Customer Agreement dated 5 November 2000 between Jupiters and
Telstra Corporation Limited
29. Licence Agreement dated 18 May 1993 between Jupiters and Conrad Royalty
Corporation related to the use of Conrad-owned hotel names
30. Lease No K292644E dated 21 April 1998 between trustee of the Jupiters
Trust and Jupiters Development Limited related to the Jupiters Casino
site
31. Crown Lease dated 20 December 1996 Jupiters Custodian and the State of
Queensland related to waterway areas adjacent to Jupiters Island
32. Special Lease (Title Reference 17750245) dated 22 October 1995 between
the State of Queensland and Jupiters related to the Brisbane Casino
site
33. Special Lease 44/47072 dated 22 October 1995 between the responsible
entity of the Breakwater Island Trust and the State of Queensland
related to the Jupiters Townsville site
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
34. Registered Lease No 70347017 dated 23 December 1998 between the
responsible entity of the Breakwater Island Trust and the Townsville
Port Authority related to the Jupiters Townsville site
35. Registered Lease No 601414725 dated 27 March 1990 between the
responsible entity of the Breakwater Island Trust and the Townsville
Port Authority related to the Jupiters Townsville site
36. Lease dated 20 November 2000 between National Nominees Limited and AWA
Limited related to AWA premises in North Ryde, New South Wales
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 4
INFORMATION TO BE PROVIDED BY JUPITERS
DIVISION REPORT BUSINESS FREQUENCY
-------- ------ -------- ---------
GENERAL Board Reports and papers Treasury/Gold When provided
Coast/Breakwater Casinos, to Jupiters
Gold Coast Convention Board
Centre, Jupiters
Technology, Jupiters
Online, AWA, Jupiters
Keno, Jupiters Machine
Gaming, Finance, Legal,
Human Resources
Flash results Treasury/Gold Monthly
Coast/Breakwater Casinos,
Gold Coast Convention
Centre, Jupiters
Technology, Jupiters
Online, AWA, Jupiters
Keno, Jupiters Machine
Gaming
Any additional material reports to those Treasury/Gold Monthly
described below Coast/Breakwater Casinos,
Gold Coast Convention
Centre, Jupiters
Technology, Jupiters
Online, AWA, Jupiters
Keno, Jupiters Machine
Gaming, Finance, Legal,
Human Resources
CASINOS Monthly Management Reports Treasury/Gold Monthly
Coast/Breakwater
P&L reforecast Treasury/Gold Monthly
Coast/Breakwater
Capital expenditure progress update Treasury/Gold Monthly
Coast/Breakwater
Operational Report and Project Manager's Gold Coast Convention Monthly
Report Centre
HUMAN RESOURCES Workers Compensation Report (including All Queensland Businesses Monthly
claims/costs provision movements)
LEGAL Copy of all reports received from Share Legal When provided
Registry to Jupiters
Board
Notice of any material litigation Legal Monthly
Copies of all correspondence with Legal Monthly
governments and/or regulatory authorities
concerning policy or significant
operational issues or in relation to
licence or regulatory compliance issues
AWA, KENO, Monthly Management Reports AWA, Jupiters Keno, Monthly
JUPITERS MACHINE Jupiters Machine Gaming
GAMING
P&L performance against budget AWA, Jupiters Keno, Monthly
Jupiters Machine Gaming
Any new material commercial arrangements AWA, Jupiters Keno, Monthly
or contracts, or negotiations concerning Jupiters Machine Gaming
such arrangements or contracts
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
DIVISION REPORT BUSINESS FREQUENCY
-------- ------ -------- ---------
FINANCE Consolidated monthly reporting package, Finance Monthly
including consolidated Chart of Accounts
Monthly Profit & Loss and Balance Sheet by Finance Monthly
entity
Capital expenditure reports Finance Monthly
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 5
TERMS OF CENTREBET SALE
The Centrebet Sale must occur on terms no less favourable to Jupiters and its
Related Entities than those outlined below, except as otherwise agreed in
writing by TABCORP, but otherwise on terms acceptable to Jupiters.
PART A - CENTREBET SALE AGREEMENT
1. STRUCTURE
(a) Neither Jupiters nor any other Related Entity of Jupiters is
to guarantee the sale (other than to the extent that the
relevant person is actually disposing of Centrebet Assets to
the purchaser).
(b) If Centrebet Sale Completion does not occur on or before 31
October 2003, the Centrebet Sale Agreement will terminate
unless otherwise agreed in writing by Jupiters and the
purchaser, and expressly consented to by TABCORP.
2. ONGOING ARRANGEMENTS
Any agreement, arrangement or understanding providing for ongoing
commercial relationships after completion between the purchaser and
Jupiters or any Related Entity of Jupiters in relation to the Centrebet
Business are to be on terms no less favourable to Jupiters and its
Related Entities than those set out in annexure E.
3. ASSETS AND LIABILITIES
(a) The Centrebet Sale will involve the acquisition by the
purchaser of all (or substantially all) of the Centrebet
Assets and the assumption by the purchaser of all of the
Centrebet Liabilities.
(b) The purchaser is to be liable for all future liabilities of
the Centrebet Business.
4. WARRANTIES
4.1 CONTENT
(a) The warranties to be given by Jupiters or the relevant Related
Entities of Jupiters are the Centrebet Warranties.
(b) No other warranties are to be given and, to the maximum extent
permitted by law, all other warranties and terms implied by
law, practice or otherwise are to be excluded.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
4.2 OTHER LIMITATIONS
The following additional provisions are to apply to the warranties and
indemnities given by Jupiters:
(a) Recoveries from insurance or third parties are to be taken
into account in determining the quantum of claims and the
purchaser must use reasonable endeavours to pursue insurance
recoveries and other third parties.
(b) The purchaser is to reimburse Jupiters in respect of any
amount relating to a claim that is recovered by the purchaser
from a third party and in respect of any tax saving by the
purchaser or any of its subsidiaries relating to the amount
claimed.
(c) The purchaser is to waive, to the maximum extent permitted by
law, any right to claim against Jupiters or any of its Related
Entities under Part V of the Trade Practices Act 1974 (Cth) or
any other Commonwealth, State or Territory legislation
including any similar provisions.
(d) The purchaser's rights under the warranties and indemnities
cannot be assigned or novated.
5. INDEMNITIES AND CLAIMS
(a) The purchaser is to indemnify Jupiters and each Related Entity
of Jupiters against any liability:
(i) directly incurred as a result of the breach by the
purchaser of the Centrebet Sale Agreement; or
(ii) arising from any claim by any Centrebet Employee who
accepts an offer of employment from the purchaser
relating to the redundancy of that Centrebet Employee
as a result of or in connection with the Centrebet
Sale or any restructuring of employment associated
with the Centrebet Sale.
(b) Jupiters or the relevant Related Entity of Jupiters is to
indemnify the purchaser against any liability directly
incurred as a result of the breach by Jupiters or the Related
Entity of Jupiters of the Centrebet Sale Agreement, subject to
the constraints on warranty claims under paragraph 4, and this
paragraph 5, of Part A of this schedule 5.
(c) No other indemnities are to be given.
(d) The following limits are to apply to the purchaser's ability
to make claims against Jupiters or any Related Entity of
Jupiters in relation to the Centrebet Sale Agreement
(including in relation to the Centrebet Warranties) or the
Centrebet Sale:
(i) The maximum aggregate liability of Jupiters and its
Related Entities for all claims is 50% of the
aggregate of the purchase price paid by the purchaser
under the Centrebet Sale Agreement (after taking into
account any adjustments to that purchase price which
have been made in accordance with the Centrebet Sale
Agreement) and the purchase price paid by the
purchaser under the Centaur Software Assignment and
Licence Agreement set out in annexure E (or, in the
case of the implementation of the method in paragraph
1.3 of schedule 6, under any other document
contemplated by the Centrebet Sale Agreement).
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(ii) The time limit for notification of claims is 6
months, and any claim made within that time limit
must be either settled or compromised, or legal
proceedings to pursue the claim must be commenced,
within a further time limit of 6 months after the
making of the claim.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
PART B - CENTREBET ASSETS
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ATTACHMENT 1
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ATTACHMENT 2
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
PART C - CENTREBET LIABILITIES
1. EMPLOYEE ENTITLEMENTS
All annual leave and loading (if any), sick leave and long service
leave of Centrebet Employees as at completion who accept the
purchaser's offer of employment.
2. POSTPAYMENTS
All outgoings and expenses accrued (but not paid) by Jupiters or
Centrebet in connection with the Centrebet Assets and the Centrebet
Business in respect of any period up to completion of the Centrebet
Sale Agreement where such outgoings and expenses relate to arrangements
which will continue to be maintained by the purchaser in respect of the
Centrebet Business after completion of the Centrebet Sale Agreement.
3. CUSTOMER CONTRACTS
All monies owed to Centrebet customers as a result of deposits by
customers under their contract with Centrebet occurring before
completion of the Centrebet Sale Agreement.
4. TAKEN WAGERS
All monies owed to third parties for winning wagers placed with the
Centrebet Business prior to completion decided after completion of the
Centrebet Sale Agreement.
5. PLACED BETS
All monies owed to third parties for wagers placed with third parties
relating to the Centrebet Business prior to completion decided after
completion of the Centrebet Sale Agreement.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
PART D - CENTREBET EMPLOYEES
SECTION 1
Age, Ruud
Akhurst, Niki
Archbold, Sarah Rose
Barnes, John William
Beicht, Michael Werner
Bini, Shannon Michael
Bizley, Gareth James
Blackley, Thomas Peel
Blystad, Sigurd Hagemann
Bohling, Dennis Kristoffer
Bray, Kelly
Broughton Wright, Sean Michael
Brown, Atoosa
Bruce, Kevin Peter
Bruce, Lis Maria
Bulhan, Bulhan
Burnnard, Darren James
Butler, Christine
Cananzi, Fabian
Candler, Russell
Christensen, Nick Mikael
Clark, Anthony Terrence
Colquhoun, Brodie
Cooper, Rachael
Corcoran, John Matthew
Cowan, John
Crack, Kim
Crisp, Sheree Anne
Crogan, Sandra Ann
Daffy, Matthew Gerard
Dastidar, Robin Ghosh
Deer, Cameron Warwick
Del Giacco, Adam Vincent
Delaney, Stephen
Eggby, Sarah
Figgis, Elizabeth May
Fish, Terry
Flanagan, Fiona Mary
Fleming, Annette Joan
Foot, Peter John
Forsman, Soren Anders
Foster, James
Fox, Glendon Clyde
Fox, Lisa
Giacomantonio, Marissa Leigh
Gilbert, Scott William
Gottstein, Rebecca Nichole
Goudie, William Dennis
Haigh, Phillip John
Hall, Richard Lachlan
Hammond, Carl
Hansen, Bard Andre
Harbutt, Gregory Warren
Harrison, Lincoln David
Henschke, Craig
Hester, Aaron Joseph
Ho, Rita Hong May
Hunter, Ian Angus
Jackson, William Allan
Jenkins, Katrina Mary
Johnson, Mats Ola
Jorgensen, Darren
Joya, Miguel
Judge, Amanda
Kain, Michael Francis
Keller, Clayton Neville
Kerr, Trevor Roland
Kirk, Leanne
Klingner, Nicholas Albert
Kulesza, T
Larsen, Tue
Lawrence, Donna Patricia
Loughlin, Ian John
Lynch, Robyn Elizabeth
Macie, Wojtek Peter
Masters, Kelly Amanda
Matthews, Stefan Raymond
Mcgrath-Volau, Fiona Therese
Mcintyre, Deborah Louise
Millard, Bronwyn Fay
Miller, Jody
Mure, Jane
Murray, Richard
Nealie, Darren
Nicolai, Scott Gavin
Odgers, Geoffrey Robert
Owen, Gary Leslie
Paterson, Shane Andrews Suranjan
Paterson, Trent David
Payne, Naomi Frances
Peacock, Lloyd
Phan, Tuan Huu
Phillips, Nicholas
Pickett, Damian Brian
Player, Anthony Paul
Raymond, Matthew
Reid, Matthew Alan
Romyn, Kevin Asa
Rowe, Delaney John
Saltzer, Lee Wayne
Saunders, Robert
Savage, Cindy-Lou
Skeie, E
Skelton, Paul Anthony
Smith, Craig Darryl
Terp, Jane
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
Thompson, Debra Marietta
Thompson, Luke
Timoney, Philip Michael
Tsirigos, Ourania
Valpeid, Mark
Virtopeanu, Claudia Doina
Wagner, Tina Marie
Walsh, Leanne Margaret
Ward, Daniel John
Westeng, Hilde
Whittle, Lisa Marie
Williams, Angela Lee
Wilson, Matthew James
Worwood, Mark Leonard
SECTION 2
Bowerman, Melinda
Morgan, Piers
Raeside, Jenny
Page 111
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
PART E - CENTREBET WARRANTIES
The Centrebet Warranties to be given by Jupiters and its relevant Related
Entities (VENDORS) as vendors under the Centrebet Sale Agreement will
specifically relate to the Centrebet Assets and, unless they are by necessary
implication inconsistent with the context, will not be construed as relating to
any fact, matter or circumstance other than insofar as it is related to the
Centrebet Assets.
W1 OWNERSHIP OF CENTREBET ASSETS
The Vendors will, at the date of completion under the Centrebet Sale Agreement,
be the sole owners of the Centrebet Assets and the Centrebet Assets will, at the
date of completion under the Centrebet Sale Agreement, be entirely free from all
encumbrances.
W2 INTELLECTUAL PROPERTY RIGHTS
In this section W2, CENTAUR SOFTWARE has the meaning given in the Centaur
Software Assignment and Licence Agreement set out in annexure E.
2.1 Centrebet is the registered owner of the trade marks forming part of
the Centrebet Assets, Jupiters and Centrebet are the owners of the
copyright in the Centaur Software (as referred to in the Centaur
Software Assignment and Licence Agreement set out in annexure E) and
Centrebet is the owner of the business name registration forming part
of the Centrebet Assets.
2.2 To the best of the Vendors' knowledge, the Vendors have not received
written notice of any allegation that the operations of the Centrebet
Business or the trade marks or business name registrations forming part
of the Centrebet Assets, or the Centaur Software, infringes any right
in confidential information or other intellectual property right held
or alleged by any third party.
2.3 Jupiters and Centrebet may lawfully enter into, and respectively grant
the rights conferred under, the Centaur Software Assignment and Licence
Agreement set out in annexure E.
2.4 Other than as previously disclosed in writing by the Vendors to the
purchaser, no proceeding is pending which involves any of the
intellectual property rights forming part of the Centrebet Assets.
2.5 The business name forming part of the Centrebet Assets is registered as
a business name in the Northern Territory.
2.6 The historical information regarding the technical performance,
availability and reliability of the Centaur Software to be annexed to
the Centrebet Sale Agreement is accurate.
W3 LITIGATION
Except as plaintiff in the collection of debts arising in the ordinary course of
business, the Vendors are not a plaintiff or defendant in or otherwise a party
to any proceedings in connection with the Centrebet Business.
W4 INSOLVENCY
4.1 No order has been made, resolution passed or petition served for the
winding up of any of the Vendors or the companies comprising Centrebet
(UK).
4.2 A receiver, a manager, a receiver and manager or a provisional
liquidator has not been appointed in respect of the whole or any part
of the undertaking of the Vendors or the companies comprising Centrebet
(UK).
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
4.3 Neither of the Vendors or the companies comprising Centrebet (UK) has
entered into any arrangement, reconstruction or composition with any of
their creditors, except for the purpose of a solvent reconstruction or
amalgamation.
W5 CENTREBET (UK)
5.1 The companies comprising Centrebet (UK) are both duly incorporated in
England and Wales.
5.2 The shares in the companies comprising Centrebet (UK) and forming part
of the Centrebet Assets have been properly issued and comprise all the
issued share capital of the companies comprising Centrebet (UK),
respectively.
W6 EMPLOYEES
6.1 The list of Centrebet Employees:
(a) contains and sets out opposite the names of each Centrebet
Employee the date from which he or she was employed in the
Centrebet Business or by Jupiters, whichever is earlier. For
the purposes of this warranty 'Centrebet Business' includes
the business acquired by Jupiters NT Pty Limited pursuant to
an asset acquisition agreement dated 16 July 1998 between,
Centrebet Pty Limited, Jupiters NT Pty Limited, Terry Lillis
and Alison Veronica Lillis and Jupiters Limited;
(b) contains each of the Centrebet Employee's long service leave
entitlement calculated as if their entitlement accrued upon
being employed in the Centrebet Business or by Jupiters,
whichever is earlier, for a period of five years and accrued
from the commencement of their employment. For the purposes of
this warranty, 'Centrebet Business' has the same meaning as in
Centrebet Warranty 6.1(a);
(c) contains a true and correct estimate of each of the Centrebet
Employee's accrued sick leave entitlement up to [*] 2003
[*THIS DATE WILL BE AS CLOSE AS POSSIBLE TO THE DATE OF THE
CENTREBET SALE AGREEMENT];
(d) contains a true and correct estimate of each of the Centrebet
Employee's accrued holiday pay and loading entitlement up to
[*] 2003 [*THIS DATE WILL BE AS CLOSE AS POSSIBLE TO THE DATE
OF THE CENTREBET SALE AGREEMENT]; and
(e) sets forth a true and correct estimate of all benefits
actually or contingently accruing to any Centrebet Employee as
at [*] 2003 [*THIS DATE WILL BE AS CLOSE AS POSSIBLE TO THE
DATE OF THE CENTREBET SALE AGREEMENT].
6.2 The Vendors have made all superannuation contributions for the
Centrebet Employees who accept an offer of employment from the
purchaser, as required pursuant to any statutory requirement imposing
an obligation on the Vendors to make superannuation contributions for
them.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
W7 CORPORATE POWER
The Vendors are companies duly incorporated and validly existing under the laws
of Australia and have full corporate power and authority to own, operate and
conduct the Centrebet Business.
W8 CORPORATE ACTION
8.1 The Vendors have the legal right and power to enter into the Centrebet
Sale Agreement and to sell the respective Centrebet Assets owned by
them to the purchaser on and subject to the terms of the Centrebet Sale
Agreement.
8.2 The execution, delivery and performance of the Centrebet Sale Agreement
by the Vendors has been duly and validly authorised by all necessary
corporate action on their part.
8.3 The Centrebet Sale Agreement is a valid and binding agreement on the
Vendors, enforceable in accordance with its terms, subject to stamping.
8.4 The execution and performance of the Centrebet Sale Agreement by the
Vendors and the other transactions contemplated by the Centrebet Sale
Agreement does not violate or conflict with or result in a breach of or
constitute a default under or result in the imposition of any
encumbrance under the provisions of the constitution of each of the
Vendors.
W9 FINANCIAL INFORMATION
The directors declaration accompanying Centrebet's Financial Report for the half
year ended 31 December 2002 states that:
(a) the Financial Report complies with the Accounting Standards (being the
accounting standards referred to in the Financial Report) and the
Corporations Regulations 2001 (Cth); and
(b) the Financial Report gives a true and fair view of the financial
position as at 31 December 2002 and the performance of Centrebet for
the six months then ended.
W10 UK LICENCE
As at the date of the Centrebet Sale Agreement, Jupiters UK Limited holds a
bookmaker's permit issued under the Betting, Gaming & Lotteries Act 1963 (UK).
W11 CONDUCT OF CENTREBET BUSINESS
Centrebet will carry on the Centrebet Business until completion under the
Centrebet Sale Agreement.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 6
DISTRIBUTION OF VALUE OF CENTREBET BUSINESS
1. METHODS OF DISTRIBUTION
1.1 CENTREBET DIVIDEND
(a) As part of the Ordinary Scheme, Jupiters will declare and pay
a fully franked special dividend of a pro rata cash amount for
each Jupiters Share on issue at the Record Date for the
Ordinary Scheme equal in aggregate to the Net Centrebet
Proceeds.
(b) Jupiters will procure that the Jupiters Board declares the
Centrebet Dividend after the Effective Date for the Ordinary
Scheme and on or before the Record Date for the Ordinary
Scheme.
(c) The record date for the Centrebet Dividend will be the Record
Date for the Ordinary Scheme.
(d) The Centrebet Dividend will be paid and provided to Jupiters
Shareholders in accordance with the Ordinary Scheme.
(e) Jupiters will issue to each Jupiters Shareholder a
distribution statement in accordance with section 202-75 of
the 1997 Tax Act in relation to the Centrebet Dividend.
(f) Immediately before the Jupiters Board passes the resolution
declaring the Centrebet Dividend, TABCORP will subscribe (or
will procure that a Related Entity of TABCORP subscribes) for,
and Jupiters will allot and issue to TABCORP or to the
relevant Related Entity of TABCORP such number of:
(i) RPS; or
(ii) if the parties agree, other equity securities in
Jupiters (such securities being equity securities for
the purposes of the US Note Deed and not equity
interests under the 1997 Tax Act), on terms agreed by
the parties,
where the total cash subscription amount for those RPS or
other equity securities is at least the minimum amount of
capital which would be required by Jupiters to enable it to
declare and pay the Centrebet Dividend having regard to the
terms of the US Note Deed, provided that such amount must not
exceed $57 million. TABCORP must pay (or must procure that the
relevant Related Entity of TABCORP pays) to Jupiters the cash
subscription amount for those RPS or other equity securities
referred to in this paragraph 1.1(f) at the time of
subscription. TABCORP's obligations under this paragraph
1.1(f) are subject to the Jupiters Shareholders having
approved the allotment and issue by Jupiters of the RPS or
other equity securities in accordance with and for the purpose
of ASX Listing Rule 7.1, or ASX having granted a waiver of
that approval requirement, and the Regulatory Approvals
referred to in paragraphs 1, 8, 9 and 10 of schedule 1 having
been obtained (to the extent required) in relation to the
allotment and issue by Jupiters of the RPS or other equity
securities.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(g) TABCORP acknowledges that Jupiters will be entitled, in paying
the Centrebet Dividend, to make payments to the maximum extent
permissible under section 4.05 of the US Note Deed.
1.2 CASH PAYMENT BY TABCORP
(a) As part of the Ordinary Scheme, and as a further component of
the Ordinary Scheme Consideration, TABCORP will provide, or
will procure that TABCORP Acquirer provides, to each Scheme
Shareholder a pro rata cash amount in respect of each Scheme
Share held at the Record Date for the Ordinary Scheme,
calculated on the basis of the amount of the Net Centrebet
Proceeds divided by the total number of Jupiters Shares on
issue at the Record Date for the Ordinary Scheme.
(b) The implementation of this method is conditional on the
Ordinary Scheme becoming Effective.
(c) The cash amount will be paid and provided to Scheme
Shareholders in accordance with the Ordinary Scheme.
1.3 DISTRIBUTION OF CENTREBET NOTES BY TABCORP
(a) As part of the Ordinary Scheme, and as a further component of
the Ordinary Scheme Consideration, TABCORP Issuer will provide
to each Scheme Shareholder one Centrebet Note in respect of
each Scheme Share held at the Record Date for the Ordinary
Scheme.
(b) The implementation of this method is conditional on the
Ordinary Scheme becoming Effective.
(c) Where a Scheme Shareholder's address as shown in the Jupiters
Share Register at the Record Date for the Ordinary Scheme is
in a jurisdiction other than:
(i) Australia or its external territories, Hong Kong or
the United Kingdom; or
(ii) any other jurisdiction where TABCORP is reasonably
satisfied that the issue of Centrebet Notes to the
Scheme Shareholder is not prohibited, not unduly
onerous and not unduly impracticable in that
jurisdiction,
or to the extent that the Scheme Shareholder holds Scheme
Shares on behalf of any person resident in the United States
of America (except where TABCORP is reasonably satisfied that
the issue of Centrebet Notes to the Scheme Shareholder is not
prohibited, not unduly onerous and not unduly impracticable in
that jurisdiction), the number of Centrebet Notes to which the
Scheme Shareholder would otherwise be entitled under the
Ordinary Scheme will be issued to a nominee of TABCORP
approved by Jupiters who will hold those Centrebet Notes until
redemption and distribute any payments made on the Centrebet
Notes promptly to that Scheme Shareholder in full satisfaction
of that Scheme Shareholder's rights in relation to Centrebet
Notes under the Ordinary Scheme.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
2. OTHER MATTERS
2.1 DEFINITIONS
In this schedule 6:
ACCOUNTING PRINCIPLES means:
(a) Australian accounting standards approved under the
Corporations Act from time to time; and
(b) to the extent any matter is not covered by those standards,
generally accepted accounting principles applied from time to
time in Australia,
in each case consistent with the approach adopted in the audited
financial statements of Jupiters and its Related Entities as at 30 June
2003.
CENTREBET NOTE means the unsecured note to be issued, in the case of
implementation of the method in paragraph 1.3 of this schedule 6, by
TABCORP Issuer under the Centrebet Note Deed providing for a potential
cash payment to holders, the key terms of which are set out in schedule
8.
CENTREBET NOTE DEED means the Trust Deed to be executed between
TABCORP, TABCORP Issuer and a trustee satisfying the requirements of
section 283AC of the Corporations Act.
EXPERT ACCOUNTANT means PricewaterhouseCoopers Securities Ltd, acting
through a Sydney or Melbourne-based partner of PricewaterhouseCoopers,
or such other person as Jupiters and TABCORP agree will be responsible
for determinations in accordance with paragraph 2.2 of this schedule 6.
NET CENTREBET PROCEEDS means, in relation to a Centrebet Sale
Agreement, an amount (calculated in accordance with paragraph 2.2 of
this schedule 6 in the case of implementation of either of the methods
in paragraphs 1.1 and 1.2 of this schedule 6, or in accordance with the
Centrebet Note Deed in the case of implementation of the method in
paragraph 1.3 of this schedule 6) equal to the aggregate of:
(a) the cash amounts received by Jupiters and its relevant Related
Entities in respect of the purchase price under the Centrebet
Sale Agreement, after taking into account any adjustments to
the purchase price which have been made in accordance with the
Centrebet Sale Agreement, and the cash amounts received by
Jupiters and its relevant Related Entities in respect of the
purchase price under the Centaur Software Assignment and
Licence Agreement set out in annexure E; plus
(b) the amount adjusted in favour of the purchaser under the
Centrebet Sale Agreement on account of monies owed to
Centrebet customers as a result of deposits by customers under
their contract with Centrebet occurring before completion
under the Centrebet Sale Agreement; plus
(c) the amount adjusted in favour of the purchaser under the
Centrebet Sale Agreement on account of monies placed by
Centrebet customers for wagers with the Centrebet Business
prior to completion under the Centrebet Sale Agreement, where
those wagers are decided after completion under the Centrebet
Sale Agreement, after subtracting the amount adjusted under
the Centrebet Sale Agreement on account of monies owed to
third parties for wagers placed with third parties relating to
the Centrebet Business prior to completion under the
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
Centrebet Sale Agreement, where those wagers are decided after
completion under the Centrebet Sale Agreement; plus
(d) an amount equal to the net profit after tax that is
attributable to the Centrebet Business from 1 July 2003 to the
date of completion under the Centrebet Sale Agreement; less
(e) the amount of cash (if any) forming part of the Centrebet
Assets, or remaining with Centrebet in the case of a sale of
Centrebet to the purchaser (except in the latter case to the
extent that such cash is attributable to customer deposits or
wagers referred to in paragraphs (b) and (c) above); less
(f) the aggregate amount of all costs and taxes, levies, duties
and charges (including income tax, capital gains tax and stamp
duty) incurred or payable by, or which will be charged back
to, Jupiters or any of its Related Entities (as they exist
immediately prior to the Effective Date for the Ordinary
Scheme) under or in connection with the Centrebet Sale
Agreement or in connection with any restructuring of the
Centrebet Assets or the Centrebet Liabilities prior to, or
subsequent to, the entry into the Centrebet Sale Agreement,
including:
(i) the costs of financial, accounting and legal
advisers;
(ii) the costs arising from any payment to, or any claim
by, any Centrebet Employee who is not offered, or
does not accept an offer of, employment by the
purchaser relating to the redundancy of that
Centrebet Employee as a result of or in connection
with the Centrebet Sale;
(iii) in the case of implementation of either of the
methods in paragraphs 1.1 and 1.2 of this schedule 6,
the costs referred to in paragraph 2.2(b)(vi) of this
schedule 6; and
(iv) an amount equal to the aggregate of:
(A) the costs incurred by Jupiters or any of its
Related Entities in relation to the
termination of; and
(B) the net present value (applying a discount
rate of 8%) of the additional costs which
are reasonably likely to be incurred after
completion under the Centrebet Sale
Agreement by Jupiters or any of its Related
Entities under, or in relation to the
termination of,
any contract, arrangement or understanding forming
part of the Centrebet Assets which is not assigned or
novated to the purchaser under the Centrebet Sale
Agreement (except in the case of a sale of Centrebet
to the purchaser where assignment or novation to the
purchaser is not required as a result of Centrebet
being the relevant party to that contract,
arrangement or understanding); less
(g) $500,000; less
(h) in the case of a Centrebet Sale Agreement which Completes
after 31 October 2003 (whether entered into before, on or
after that date):
(i) $10 million; and
(ii) 12% of the amount by which the amount calculated in
accordance with paragraphs (a) to (g) above exceeds
$30 million.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
2.2 CALCULATION OF NET CENTREBET PROCEEDS
(a) (PREPARATION OF CALCULATION) Jupiters must procure the
preparation, and delivery to TABCORP, of a written calculation
of the amount of the Net Centrebet Proceeds, as soon as
practicable after the Centrebet Sale Completion. The written
calculation must be certified in writing as true and correct
by the managing director and chief financial officer of
Jupiters. The written calculation must be prepared, to the
extent relevant, in accordance with the Accounting Principles.
(b) (DISPUTE BY TABCORP)
(i) Unless within 3 Business Days of the date of delivery
of the written calculation under paragraph 2.2(a) of
this schedule 6, TABCORP gives notice in writing (a
DISPUTE NOTICE) to Jupiters that it does not agree
that the written calculation has been prepared in
accordance with this paragraph 2.2, TABCORP will be
deemed to agree to the correctness of that written
calculation for the purposes of this paragraph 2.2
and the written calculation will be final and binding
on Jupiters, TABCORP and the Jupiters Shareholders.
(ii) If TABCORP gives a Dispute Notice, then TABCORP and
Jupiters must use their best endeavours to reach
agreement as to the matter or matters in dispute
within 5 Business Days after the service of that
Dispute Notice.
(iii) If no agreement is reached as to the matter or
matters in dispute within 5 Business Days of the
service of a Dispute Notice, such matter or matters
must be referred to the Expert Accountant for
determination. The Expert Accountant will act as an
expert and not as an arbitrator. The Expert
Accountant must be instructed to notify its
determination to TABCORP and Jupiters as soon as
practicable following the Expert Accountant's
appointment, by means of a written determination
which will be final and binding on Jupiters, TABCORP
and the Jupiters Shareholders.
(iv) The Expert Accountant will have the right to request
any information from Jupiters and TABCORP relevant to
any determination it may be required to make. If any
matter is referred to the Expert Accountant, Jupiters
and TABCORP must use their best endeavours to
cooperate with the Expert Accountant in resolving the
matter or matters the subject of the Dispute Notice
and for that purpose must provide all such
information and documentation as the Expert
Accountant may reasonably require. Each of Jupiters
and TABCORP will be entitled to submit written
representations to the Expert Accountant in
connection with the matter or matters the subject of
the Dispute Notice.
(v) Promptly after the determination of the matter or
matters the subject of the Dispute Notice, Jupiters
must procure the preparation of such adjustments (if
any) to the written calculation of the amount of the
Net Centrebet Proceeds as may be required by such
determination. Upon such adjustments being prepared,
the revised written calculation will be delivered to
TABCORP, and will be final and binding on Jupiters,
TABCORP and the Jupiters Shareholders. In giving its
determination as to the matter or matters the subject
of a Dispute Notice, the Expert Accountant must state
what adjustments (if any) are to be made to the
written calculation of the amount of the Net
Centrebet Proceeds.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(vi) If the determination of the Expert Accountant
requires that any adjustments that are, in aggregate,
of an amount of $1 million or more are to be made to
the written calculation of the amount of the Net
Centrebet Proceeds, the costs of the Expert
Accountant will be accounted for as a deduction from
the calculation of the Net Centrebet Proceeds in
accordance with paragraph (f)(iii) of that definition
in paragraph 2.1 of this schedule 6. Otherwise,
TABCORP must pay the costs of the Expert Accountant.
Page 120
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 7
APPLICATION AND AMENDMENT OF RPS TERMS
In this schedule 7, unless the context requires otherwise, all references to
clauses are to clauses of the RPS Terms, and all capitalised terms have the
meanings (if any) given to them in the RPS Terms, and otherwise have the
meanings given in this Agreement.
The RPS Terms have been amended in accordance with the Attachment to this
schedule 7 and will be applied in accordance with the terms of this schedule 7
(including the Attachment to it).
CONTROL EVENT
1. Upon Jupiters releasing to ASX the report of the Independent Expert
proposed to be included in the Scheme Booklet in relation to the
Ordinary Scheme, a Control Event (and thus a Trigger Event) will occur
if the report contains an opinion that the Ordinary Scheme is in the
best interests of holders of Ordinary Shares and is fair and
reasonable.
2. For the purposes of clause 6.9 and the definition of the Repurchase
Amount, the date of announcement of the Ordinary Scheme (being the
relevant scheme of arrangement for the purposes of the definition of
Control Event in the RPS Terms) is 5 March 2003.
3. In the case of a Control Event and for the purposes of clause 6.9 and
the definition of Repurchase Amount:
(a) The Offer Price includes the value of the Ordinary Scheme
Consideration, the Special Dividend (if any) and the Centrebet
Dividend (if any) (taking into account that some of the
foregoing components are alternatives to other components).
(b) The non-cash components of the Offer Price are to be valued by
an independent expert as at or after 5 March 2003. Once the
Independent Expert has determined the Offer Price, the Offer
Price will be finally determined. For instance, the Offer
Price will not change merely because:
(i) the Tax Ruling Event or Centrebet Tax Ruling Event
occurs or does not occur;
(ii) there is a change in the underlying value of the
TABCORP Shares or the Centrebet Business;
(iii) the Net Centrebet Proceeds are finally determined
(including in such a way as to be different from the
amount assessed by the Independent Expert); or
(iv) the precise method by which the Net Centrebet
Proceeds are to be distributed to Jupiters
Shareholders is determined.
(c) The Repurchase Amount in relation to conversions pursuant to
the Control Event Trigger Event cannot be less than $100.
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MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
OTHER TRIGGER EVENTS
4. A Trigger Event does not occur if Ordinary Shares or Jupiters RPS cease
quotation on the stock market conducted by ASX unless those Ordinary
Shares or Jupiters RPS are first suspended from trading on that stock
market for more than 20 consecutive Business Days.
CONVERSION MINIMUM
5. Following the Implementation Date for the Ordinary Scheme, the
combination of the final dividend to be paid by Jupiters (if any) as
contemplated by clause 7.6 of this Agreement, the Special Dividend (if
any) and the Centrebet Dividend (if any) may result in an adjustment to
the Conversion Minimum under clause 6.7 in circumstances where the VWAP
before a particular Conversion Date already incorporates some value in
recognition of one or more of those dividends (for instance, because
the value for VWAP is that determined with reference to a period before
and up to the date on which the Jupiters RPS ceased trading. In those
circumstances, the Jupiters Board may make an appropriate adjustment to
the Conversion Minimum pursuant to clause 6.10 or VWAP pursuant to
clause 16.2.
DIVIDENDS
6. On the Conversion Date in respect of a Jupiters RPS which is the
subject of a Conversion Notice pursuant to a Trigger Event, a dividend
is to be paid by Jupiters in respect of that Jupiters RPS which is the
subject of the Conversion Notice. (No dividend is payable by Jupiters
on other Jupiters RPS on such a Conversion Date, other than a Jupiters
RPS which is also the subject of a Trigger Event Conversion Notice if
the Conversion Date for that other Jupiters RPS is the same.) To the
extent that any dividend is paid by Jupiters on that Jupiters RPS on
such a Conversion Date:
(a) that dividend will equal the Outstanding Dividend which arises
on the Conversion Date, being (on the basis that dividend
entitlements have been paid in full on all previous Dividend
Payment Dates) the dividend accrued from (and including) the
Dividend Payment Date immediately preceding the Conversion
Date to (but excluding) the Conversion Date; and
(b) the next dividend payable by Jupiters on such Jupiters RPS (on
the following Dividend Payment Date) will be determined under
clause 2.1, with 'D' being the number of days from (and
including) the Conversion Date (ie the immediately prior
Dividend Payment Date in respect of that Jupiters RPS) to (but
excluding) that following Dividend Payment Date.
7. In respect of Jupiters RPS which are the subject of a Conversion Notice
pursuant to a Special Conversion Right, no dividends are payable on the
Conversion Date for such Jupiters RPS.
TRANSFERS
8. A transferee of a Jupiters RPS is bound by decisions of previous owners
of the Jupiters RPS in relation to that Jupiters RPS. A transferor of a
Jupiters RPS does not retain any entitlements in respect of a
transferred Jupiters RPS (except in circumstances where the transferor
was the registered owner at the record date for the relevant
entitlements).
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ATTACHMENT
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SCHEDULE 8
TERMS OF CENTREBET NOTE
The proposed terms of schedules 1 and 3 to the Centrebet Note Deed (as defined
in paragraph 2.1 of schedule 6) are set out in this schedule 8.
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SCHEDULE 1 TO THE PROPOSED CENTREBET NOTE DEED
CONDITIONS OF THE NOTES
1. GENERAL
1.1 STATUS OF NOTES
The Notes constitute direct and unsecured debt obligations of the
Issuer, guaranteed by the Guarantor, and rank equally in all respects
(including as to payment) amongst themselves.
1.2 TERMS OF ISSUE
The Notes are:
(a) redeemable in accordance with Condition 2; and
(b) created under and subject to the Terms of Issue.
Each Noteholder is entitled to the benefit of, and is bound by, the
Terms of Issue.
1.3 DEALINGS
(a) Each of the Notes is transferable in accordance with Condition
8.
(b) Notwithstanding anything else in the Terms of Issue, neither
the Issuer nor the Guarantor is under any obligation to seek
quotation of any or all of the Notes on any stock exchange or
otherwise create or facilitate a market for the Notes.
1.4 ENFORCEMENT
The obligations of the Issuer in respect of each Note constitute
separate and independent obligations which the Note Trustee and,
subject to the Terms of Issue, the Noteholder to which those
obligations are owed are each entitled to enforce independently from
each other Noteholder (and any predecessor in title of a Noteholder).
1.5 TITLE
(a) Subject to the Terms of Issue, the person whose name appears
in the Register as the holder of a Note will be treated by the
Issuer, the Guarantor and the Note Trustee as, and the Issuer,
the Guarantor and the Note Trustee will be entitled to
recognise that person as, the absolute owner of that Note.
(b) The Issuer will not be obliged to enter on the Register notice
of any trust, Encumbrance or other interest whatsoever in
respect of any Note and the Issuer, the Guarantor and the Note
Trustee will not be bound or affected by any trust affecting
the ownership of any Note, unless ordered by a court or
required by statute.
1.6 STATUS OF GUARANTEE
The obligations of the Guarantor in respect of its guarantee under
clause 5 of this deed constitute direct and unsecured obligations of
the Guarantor.
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2. REDEMPTION
2.1 CONDITIONS PRECEDENT
The Notes will only be redeemable if each of the Redemption Conditions
is satisfied. If either or both of the Redemption Conditions are not
satisfied:
(a) no obligation to pay the Redemption Amount will arise; and
(b) the Notes will automatically lapse on the End Date and will
not be redeemable.
2.2 REDEMPTION
If each of the Redemption Conditions is satisfied, the Issuer will, in
accordance with the Terms of Issue, redeem the Notes by paying to each
Noteholder, on the Payment Date and in accordance with Condition 3, the
Redemption Amount in respect of each Note held by the Noteholder as at
5.00pm on the Record Date.
2.3 NOTIFICATION OF AMOUNTS
The Issuer will make, or cause to be made, an announcement to
Australian Stock Exchange Limited specifying the amount of the Net Sale
Proceeds, and the Redemption Amount in respect of each Note, as soon as
practicable (and in any event not later than three Business Days) after
the date of final determination of the amount of the Net Sale Proceeds
in accordance with schedule 3.
2.4 CANCELLATION OF NOTES
All Notes redeemed under Condition 2.2 or lapsing under Condition 2.1
will, upon such redemption or lapse, be cancelled and may not be
reissued.
3. PAYMENTS
3.1 RECORD DATE
The payment of the Redemption Amount in respect of each Note will be
made to the person whose name is entered in the Register as the
Noteholder in respect of that Note as at 5.00pm on the Record Date.
3.2 METHOD OF PAYMENT
Subject to Condition 6.4, any amount (including the Redemption Amount)
payable under or in respect of a Note must be paid in Australian
dollars only:
(a) by payment of cheque marked `not negotiable' and sent through
the post to the address of the Noteholder in the Register, or,
where the Note is held by joint Noteholders, to the address of
the Noteholder whose name stands first in the Register in
respect of the Note; or
(b) by deposit to any account with any ADI (as that expression is
defined in the Banking Act 1959 (Cth)) in Australia as the
Noteholder (or, where the Note is held by joint Noteholders,
the Noteholder whose name stands first in the Register), by
written notice to the Issuer, may direct; or
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(c) by any other method of transferring money approved by the
Issuer Board and the Note Trustee from time to time.
Every cheque referred to in clause 3.2(a) will be sent at the risk of
the person entitled to the money represented by the cheque. Payment
will be deemed to have been made when the cheque is posted, the deposit
is made or the transfer is effected (as the case may be) in accordance
with this clause 3.2.
3.3 PAYMENT CONSTITUTES RELEASE
Any payment made by the Issuer or the Note Trustee for the account of a
person whose name is, on the Record Date, entered in the Register as
the holder of a Note constitutes for all purposes an absolute and
unconditional release and discharge of the Issuer, the Guarantor and
the Note Trustee, to the extent of such payment, of all obligations and
indebtedness in respect of the Note under or in respect of which the
payment was made.
3.4 TIME LIMIT FOR CLAIMS
A claim against the Issuer for a payment under or in respect of a Note
is void unless made within five years of the due date for that payment.
3.5 GROSSING UP
All payments under or in respect of a Note will be made free and clear
of, and without withholding or deduction for, any Taxes, unless such
withholding or deduction is required by law. In that event, the Issuer
will:
(a) make the withholding or deduction;
(b) pay in accordance with the relevant law the full amount
withheld or deducted; and
(c) have no obligation to pay to the relevant Noteholder any
additional amounts for or in respect of that withholding or
deduction.
4. RIGHTS ATTACHING TO NOTES
4.1 NO VOTING RIGHTS
The Notes do not carry any right, and Noteholders in that capacity will
not have any right, to vote at any general meeting of the Issuer or of
the Guarantor.
4.2 NO PARTICIPATION RIGHTS
The Notes carry no right for any Noteholder in that capacity to
participate in any offering or issue of securities by the Issuer or the
Guarantor, and each of the Issuer and the Guarantor reserve the right
at all times to offer or issue securities to any person in any manner.
5. NOTE CERTIFICATES
5.1 ISSUE OF NOTE CERTIFICATES
(a) Subject to the Terms of Issue, each Noteholder will be
entitled to one Note Certificate for the Notes in respect of
which the Noteholder is registered as the holder.
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(b) No Noteholder may waive their entitlement to a Note
Certificate.
(c) If the Corporations Act includes a provision applicable to the
Issuer to the effect that no Note Certificate or other
document is required to be completed and delivered by the
Issuer in relation to the allotment or issue of a Note, then
no entitlement under Condition 5.1(a) will arise.
5.2 DEFACED NOTE CERTIFICATES
Subject to the Terms of Issue, if any Note Certificate becomes defaced
then, on production and delivery of that Note Certificate to the Issuer
together with any other evidence as the Issuer may require, the Issuer
will, subject to the Terms of Issue, cancel that Note Certificate and
issue a new Note Certificate in its place.
5.3 LOST OR DESTROYED NOTE CERTIFICATES
Subject to the Corporations Act and the Terms of Issue, if any Note
Certificate is lost or destroyed then the Issuer will issue a duplicate
Note Certificate in its place on application in writing by the
Noteholder accompanied by:
(a) a statutory declaration or any other evidence that the Issuer
may require that the Note Certificate has been lost or
destroyed and has not been pledged, mortgaged, charged, sold
or otherwise disposed of and, if lost, that proper searches
for that Note Certificate have been made;
(b) an undertaking in writing that if the original Note
Certificate is found or received by the Noteholder, it will be
returned promptly to the Issuer;
(c) payment to the Issuer of such out-of-pocket expenses of the
Issuer as the Issuer Board deems adequate for attending to the
application; and
(d) any other matter or thing which the Issuer reasonably
requires.
5.4 STAMP DUTY
Any stamp, transaction or registration tax or duty payable on a new
Note Certificate issued under Condition 5.2 or 5.3 must be paid by the
Noteholder.
5.5 CANCELLATION OF NOTE CERTIFICATE
The ranking of a Note will in no way be affected by the cancellation of
the Note Certificate in respect of that Note.
5.6 NOTE CERTIFICATE NOT EVIDENCE OF TITLE
A Note Certificate is not evidence of title or ownership of any Notes.
Condition 1.5 applies to the Notes.
6. JOINT NOTEHOLDERS
6.1 NATURE OF INTEREST
Where two or more persons are registered as the holders of any Notes,
they are considered to hold the Notes as joint tenants with benefits of
survivorship, subject to the terms of this Condition 6.
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6.2 LIMIT ON NUMBER OF JOINT NOTEHOLDERS
Subject to Condition 8.4, the Issuer is not bound to register more than
three persons as the holders of any Note.
6.3 LIABILITY FOR PAYMENTS
The joint Noteholders in respect of any Note are liable severally as
well as jointly in respect of all payments which ought to be made by
the joint Noteholders in respect of the Note.
6.4 PAYMENT TO JOINT NOTEHOLDERS
Any one of the joint Noteholders in respect of a Note may give a
receipt for any amount (including the Redemption Amount) payable to the
joint Noteholders, and the payment of any such amount to any one of the
joint Noteholders will be an effective discharge by the Issuer of its
obligations in relation to that Note.
6.5 DEATH OF JOINT NOTEHOLDER
On the death of any one of the joint Noteholders in respect of any
Note, the remaining joint Noteholders will be the only persons
recognised by the Issuer as having any title to the Note, but the
Issuer Board may require evidence of death and the estate of the
deceased joint Noteholder is not released from any liability in respect
of the Note.
6.6 NOTICES AND NOTE CERTIFICATES
Only the person whose name stands first in the Register as one of the
joint Noteholders in respect of any Note is entitled, subject to the
Terms of Issue, to delivery of a Note Certificate relating to the Note
or to receive notices from the Issuer, and any notice given to that
person is considered notice to all the joint Noteholders.
6.7 JOINT ACTION BY JOINT NOTEHOLDERS
Subject to the Terms of Issue, all of the joint Noteholders in respect
of any Note must join in:
(a) any transfer of the relevant Note; or
(b) any application for the replacement of a Note Certificate
which has been lost or destroyed.
7. NON-RESIDENT NOTEHOLDERS
Where Notes are held by, or on behalf of, a person resident outside the
Commonwealth of Australia, then, despite anything to the contrary
contained in or implied by the Terms of Issue, it is a condition
precedent to any right of the Noteholder:
(a) to receive payment of the Redemption Amount for each of those
Notes; and
(b) to receive payment of any other amount under or in respect of
those Notes,
that all necessary Authorisations are obtained or made, and all other
applicable regulatory requirements are satisfied, at the cost of the
Noteholder.
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8. TRANSFER OF NOTES
8.1 METHOD OF TRANSFER
(a) A transfer of any Notes may be effected by a written transfer
in the usual or common form or in any form the Issuer Board
may prescribe or in a particular case accept, properly stamped
(if necessary), being delivered to the Issuer.
(b) A written transfer:
(i) may comprise two or more documents;
(ii) subject to the Corporations Act, must be executed by
the transferor and the transferee; and
(iii) must also be endorsed or accompanied by an instrument
executed by the transferee to the effect that the
transferee agrees to accept the Notes subject to the
terms and conditions on which the transferor held
them, to become a Noteholder and to be bound by the
Terms of Issue. Such instrument must be in any form
the Issuer Board may prescribe or in a particular
case accept.
(c) Every transfer must be left for registration at the place
where the Register is maintained or any other place the Issuer
Board determines. Unless the Issuer Board otherwise determines
either generally or in a particular case, the transfer is to
be accompanied by the Note Certificate (if any) for the Notes
to be transferred. In addition, the transfer is to be
accompanied by any other evidence which the Issuer Board may
require to prove the title of the transferor, the transferor's
right to transfer the Notes, execution of the transfer or
compliance with the provisions of any law relating to stamp
duty.
8.2 TRANSFER OF TITLE
The transferor of a Note is considered to remain the holder of the Note
transferred until the name of the transferee is entered in the Register
in respect of the Note. Upon registration the transferee will have all
the rights and obligations of the transferor, and all of the rights and
obligations of a Noteholder under the Terms of Issue. A transfer of
Notes does not pass the right to any amount payable or any other rights
on the Notes until such registration.
8.3 REFUSAL TO REGISTER
(a) The Issuer Board may refuse to register any transfer of Notes:
(i) where the transfer is not in accordance with
Condition 8.1; or
(ii) on which the Issuer has a lien.
(b) The decision of the Issuer Board relating to the registration
of a transfer is absolute. Failure to give notice of refusal
to register any transfer as may be required under the
Corporations Act does not invalidate the decision of the
Issuer Board.
8.4 LIMIT ON NUMBER OF TRANSFEREES
No transfer of a Note may be made to more than three transferees
jointly unless the transferees are the personal representatives of a
deceased Noteholder who is the transferor of the Note.
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8.5 CHARGES FOR TRANSFER
Transfers of Notes will be registered without charge by the Issuer to
the transferor or the transferee.
8.6 STATUS OF DOCUMENTS
(a) Subject to Condition 8.1(c), on each application to register
the transfer of any Notes or to register any person as the
holder in respect of any Notes transmitted to that person by
operation of law or otherwise, the Note Certificate (if any)
specifying the Notes in respect of which registration is
required must be delivered to the Issuer for cancellation and
on registration the Note Certificate is considered to have
been cancelled.
(b) Each transfer which is registered may be retained by the
Issuer for any period determined by the Issuer Board, after
which the Issuer may destroy it. Any transfer which is not
registered will (except in the case of fraud or suspected
fraud) be returned on demand to the person depositing the
transfer.
9. TRANSMISSION ON DEATH OR BY LAW
9.1 TRANSMISSION ON DEATH
The personal representative of a deceased Noteholder (which Noteholder
is not a joint Noteholder) is the only person recognised by the Issuer
as having any title to Notes registered in the name of the deceased
Noteholder. Subject to compliance by the transferee with the Terms of
Issue, the Issuer Board may register any transfer signed by a
Noteholder prior to the Noteholder's death, despite the Issuer having
notice of the Noteholder's death.
9.2 TRANSMISSION BY OPERATION OF LAW
A person (a TRANSMITTEE) who establishes to the satisfaction of the
Issuer Board that the right to any Notes has devolved on the
transmittee by will or by operation of law may be registered as a
holder in respect of the Notes or may (subject to the provisions of the
Terms of Issue relating to transfers) transfer the Notes. The Issuer
Board has the same right to refuse to register the transmittee under
Condition 8.3(a) as if the transmittee was the transferee named in a
transfer presented for registration (provided that the transmittee will
not be required to comply with Conditions 8.1(a) or (b)(i) or (ii)).
10. INDEMNITY TO THE ISSUER
10.1 LIABILITY OF THE ISSUER
Condition 10.2 applies if any law imposes or purports to impose any
immediate or future or possible liability on the Issuer to make any
payment, or empowers any Governmental Agency to require the Issuer to
make any payment, in respect of any Notes held either jointly or solely
by any Noteholder, or in respect of any transfer of those Notes, or in
respect of any money due or payable or accruing due or which may become
due or payable to the Noteholder by the Issuer under or in respect of
any Notes or for or on account or in respect of any Noteholder, whether
because of:
(a) the death of the Noteholder;
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(b) the non-payment of any income Tax or other Tax by the
Noteholder;
(c) the non-payment of any estate, probate, succession, death,
stamp or other duty by the Noteholder or a personal
representative of that Noteholder or by or out of the
Noteholder's estate; or
(d) any other act or thing in relation to a Note or the
Noteholder.
10.2 INDEMNITY
In each case referred to in Condition 10.1:
(a) the Issuer is to be fully indemnified, as a continuing
indemnity, against all liability by the Noteholder or the
Noteholder's personal representative and by any person who
becomes registered as the holder of the Notes on the
distribution of the deceased Noteholder's estate;
(b) the Issuer has a lien or charge on the Notes for all money
paid by the Issuer in respect of the Notes under or because of
any law;
(c) the Issuer has a lien on all money payable under or in respect
of the Notes registered in the Register as held either jointly
or solely by the Noteholder for all money paid or payable by
the Issuer in respect of the Notes under or in consequence of
any law, together with interest at a rate the Issuer Board may
determine from the date of payment by the Issuer to the date
of repayment by the Noteholder, the Noteholder's personal
representative or any person who becomes registered as the
holder of the Notes on the distribution of the deceased
Noteholder's estate, and may deduct from or set off against
any money payable any money paid or payable by the Issuer
together with interest;
(d) the Issuer may recover as a debt due from the Noteholder or
the Noteholder's personal representative, or any person who
becomes registered as the holder of the Notes on the
distribution of the deceased Noteholder's estate, any money
paid by the Issuer under or in consequence of any law which
exceeds any money then due or payable by the Issuer to the
Noteholder, together with interest at a rate the Issuer Board
may determine from the date of payment to the date of
repayment; and
(e) the Issuer may, if any money is paid or payable by the Issuer
under any law, refuse to register a transfer of any Notes by
the Noteholder or the Noteholder's personal representative
until the money and interest is set off or deducted or, in
case the money and interest exceeds the amount of any money
then due or payable by the Issuer to the Noteholder, until the
excess is paid to the Issuer.
10.3 REMEDIES CUMULATIVE
Nothing in Conditions 10.1 and 10.2 affects any right or remedy which
any law confers on the Issuer and any right or remedy is enforceable by
the Issuer whether against the Noteholder or the Noteholder's personal
representative.
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11. NOTICES
11.1 NOTICES TO NOTEHOLDERS
Any notice, demand, consent or other communication (a NOTICE) given or
made under the Terms of Issue by the Issuer, the Guarantor or the Note
Trustee to a Noteholder is valid if delivered by prepaid ordinary post
(airmail if posted to a place outside Australia) or by hand to the
address of the Noteholder specified in the Register (or, in the case of
joint Noteholders, to the address of the Noteholders whose name stands
first in the Register). If the Notice is signed, the signature may be
original or printed.
11.2 NOTICES TO ISSUER, GUARANTOR OR NOTE TRUSTEE
Any Notice from a Noteholder to the Issuer, the Guarantor or the Note
Trustee:
(a) must be in writing and signed by a person duly authorised by
the Noteholder;
(b) must be delivered to the intended recipient by prepaid
ordinary post (airmail if posted from a place outside
Australia) or by hand or fax to the address below or the
address last notified by the intended recipient:
(i) to the Issuer or to the 5 Bowen Crescent
Guarantor: Melbourne Victoria 3000
Attention: The Company
Secretary
Fax No: (03) [*]
(ii) to the Note Trustee: [*]
Attention: [*]
Fax No: [*].
11.3 DELIVERY
A Notice will be taken to be duly given or made:
(a) in the case of delivery in person, when delivered; and
(b) 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 seven Business Days after the date of posting (if posted to
an address in another country).
11.4 NOTICE TO TRANSFEROR BINDS TRANSFEREE
Every person who, by operation of law, transfer or any other means,
becomes entitled to be registered as the holder of any Notes is bound
by every Notice which, prior to the person's name and address being
entered in the Register in respect of the Notes, was properly given to
the person from whom the person derived title to those Notes.
11.5 SERVICE ON DECEASED NOTEHOLDERS
A Notice delivered in accordance with this Condition 11 is (despite the
fact that the Noteholder is then dead and whether or not the Issuer has
notice of the Noteholder's death) considered to have been properly
delivered in respect of any Notes, whether held solely or jointly with
other persons by the Noteholder, until some other person or persons
(including the surviving joint Noteholders) is or
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are registered in the Noteholder's place as the Noteholder or joint
Noteholders. The delivery is sufficient delivery of the Notice on the
Noteholder's personal representative and any persons jointly interested
with the Noteholder in the Notes.
12. GOVERNING LAW AND JURISDICTION
12.1 GOVERNING LAW
The Notes are governed by the laws of Victoria, Australia.
12.2 JURISDICTION
The Issuer and each Noteholder submits to the non-exclusive
jurisdiction of courts exercising jurisdiction in Victoria, Australia
in connection with matters concerning the Notes. The Issuer and each
Noteholder waives any right they have to an action being brought in
those courts, or to claim that the action has been brought in an
inconvenient forum, or to claim those courts do not have jurisdiction.
13. DEFINITIONS AND INTERPRETATION
13.1 DEFINITIONS
In this schedule 1, the following definitions apply unless the context
requires otherwise.
AUTHORISATION means:
(a) any consent, authorisation, registration, filing, lodgement,
permit, franchise, agreement, notarisation, certificate,
permission, licence, approval, direction, declaration,
authority or exemption from, by or with a Governmental Agency;
or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Governmental Agency
intervened or acted in any way within a specified period after
lodgement, filing, registration or notification, the expiry of
that period without intervention or action.
BUSINESS DAY means a day, other than a Saturday, Sunday or public
holiday, on which banks are open for business in Melbourne, Australia.
CORPORATIONS ACT means the Corporations Act 2001 (Cth).
ENCUMBRANCE means any mortgage, pledge, charge, lien, assignment by way
of security, hypothecation, security interest, title retention,
preferential right or trust arrangement and any other security
agreement or security arrangement or any other arrangement having the
same effect as any of the foregoing, of whatever nature, other than
liens arising by operation of law.
END DATE means 30 September 2004.
GOVERNMENTAL AGENCY means a government or a governmental,
semi-governmental or judicial entity or authority. It includes a
self-regulatory organisation established under statute or any stock
exchange.
GUARANTOR means TABCORP Holdings Limited (ABN 66 063 780 709).
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ISSUER means [*TABCORP ISSUER] (ABN [*]).
ISSUER BOARD means the board of directors of the Issuer from time to
time.
JUPITERS means Jupiters Limited (ABN 78 010 741 045).
NET SALE PROCEEDS has the meaning given in schedule 3.
NOTE means an unsecured note issued by the Issuer on the Terms of Issue
and having no fixed maturity date and for the time being outstanding,
and a reference to a Note that is outstanding as at a particular date
means a Note that has not been redeemed, or otherwise cancelled, prior
to that date.
NOTE CERTIFICATE means a certificate issued by the Issuer in accordance
with Condition 5.
NOTE TRUSTEE means [*] (ABN [*]) or any replacement appointed under the
Terms of Issue.
NOTEHOLDER means, in relation to a Note, the person whose name is
entered in the Register as the holder of that Note from time to time.
PAYMENT DATE means the date which is 5 Business Days after the Record
Date.
RECORD DATE means the date which is 10 Business Days after the date of
final determination of the amount of the Net Sale Proceeds in
accordance with schedule 3.
REDEMPTION AMOUNT means, in relation to each Note, the amount
calculated as follows:
R = P / N
where:
R is the Redemption Amount;
P is the amount of the Net Sale Proceeds; and
N is the total number of fully paid ordinary shares in
Jupiters on issue at the record date for
implementation of the Ordinary Scheme.
REDEMPTION CONDITIONS means each of:
(a) Jupiters and its relevant Related Bodies Corporate entering
into a Sale Agreement on or before the Sale Deadline; and
(b) the Sale Completion occurring on or before the End Date.
REGISTER means the register of persons who hold Notes required to be
established and maintained by the Issuer in accordance with this deed
and the Corporations Act.
RELATED BODY CORPORATE means, in relation to a body corporate, a body
corporate which is related to that body corporate within the meaning of
section 50 of the Corporations Act.
SALE AGREEMENT has the meaning given in schedule 3.
SALE COMPLETION has the meaning given in schedule 3.
SALE DEADLINE means 30 June 2004.
TAX means any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Governmental Agency, and any related interest, penalty, charge, fee or
other amount. It includes GST.
TERMS OF ISSUE means the terms of issue of the Notes, as set out in
this deed (including this schedule 1 and schedules 2 and 3).
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13.2 INTERPRETATION
In this schedule 1, headings are for convenience only and do not affect
interpretation, and 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 Condition is to a condition of this schedule
1, as amended, varied, supplemented, novated or replaced.
(f) A reference to an agreement or document is to the agreement or
document as amended, varied, supplemented, novated or
replaced, except to the extent prohibited by that agreement or
document.
(g) A reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including
persons taking by novation) and assigns.
(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 $ is to the lawful currency of Australia.
(j) Words and phrases not specifically defined in this schedule 1
have the same meanings (if any) given to them in the
Corporations Act.
(k) A reference to time is a reference to time in Melbourne,
Australia.
(l) If the day on which any act, matter or thing is to be done is
a day other than a Business Day, such act, matter or thing
must be done on the immediately succeeding Business Day.
(m) The meaning of general words is not limited by specific
examples introduced by INCLUDING, or FOR EXAMPLE, or similar
expressions.
Page 152
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SCHEDULE 3 TO THE PROPOSED CENTREBET NOTE DEED
NET SALE PROCEEDS
1. DEFINITIONS
In this schedule 3, the following definitions apply unless the context
requires otherwise.
ACCOUNTING PRINCIPLES means:
(a) Australian accounting standards approved under the
Corporations Act from time to time; and
(b) to the extent any matter is not covered by those standards,
generally accepted accounting principles applied from time to
time in Australia,
in each case consistent with the approach adopted in the audited
financial statements of Jupiters and its Subsidiaries as at 30 June
2003.
AUDITOR means Ernst & Young.
EXPERT ACCOUNTANT means PricewaterhouseCoopers Securities Ltd, acting
through a Sydney or Melbourne-based partner of PricewaterhouseCoopers,
or such other person as the Issuer and the Note Trustee agree will be
responsible for determinations in accordance with paragraph 2 of this
schedule 3.
MERGER IMPLEMENTATION AGREEMENT means the Merger Implementation
Agreement dated [*] 2003 between TABCORP and Jupiters.
NET SALE PROCEEDS means, in relation to a Sale Agreement, an amount
(calculated in accordance with paragraph 2 of this schedule 3) equal to
the aggregate of:
(a) the cash amounts received by Jupiters and its relevant Related
Entities in respect of the purchase price under the Sale
Agreement, after taking into account any adjustments to the
purchase price which have been made in accordance with the
Sale Agreement, and the cash amounts received by Jupiters and
its relevant Related Entities in respect of the purchase price
under any other document contemplated by the Sale Agreement;
plus
(b) the amount adjusted in favour of the purchaser under the Sale
Agreement on account of monies owed to customers of Centrebet
Pty Limited (ABN 76 082 760 610) (CENTREBET) as a result of
deposits by customers under their contract with Centrebet
occurring before completion under the Sale Agreement; plus
(c) the amount adjusted in favour of the purchaser under the Sale
Agreement on account of monies placed by Centrebet customers
for wagers with the business sold under the Sale Agreement
prior to completion under the Sale Agreement, where those
wagers are decided after completion under the Sale Agreement,
after subtracting the amount adjusted under the Sale Agreement
on account of monies owed to third parties for wagers placed
with third parties relating to the business sold under the
Sale Agreement prior to completion under the Sale Agreement,
where those wagers are decided after completion under the Sale
Agreement; plus
Page 153
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(d) an amount equal to the net profit after tax that is
attributable to the business sold under the Sale Agreement
from 1 July 2003 to the date of completion under the Sale
Agreement; less
(e) the amount of cash (if any) forming part of the assets sold
under the Sale Agreement, or remaining with Centrebet in the
case of a sale of Centrebet to the purchaser (except in the
latter case to the extent that such cash is attributable to
customer deposits or wagers referred to in paragraphs (b) and
(c) above); less
(f) the aggregate amount of all costs and taxes, levies, duties
and charges (including income tax, capital gains tax and stamp
duty) incurred or payable by, or which will be charged back
to, Jupiters or any of its Related Entities (as they exist
immediately prior to the date that the Ordinary Scheme becomes
effective under the Corporations Act) under or in connection
with the Sale Agreement or in connection with any
restructuring of the assets sold to, and the liabilities
assumed by, the purchaser under the Sale Agreement prior to,
or subsequent to, the entry into the Sale Agreement,
including:
(i) the costs of financial, accounting and legal
advisers;
(ii) the costs arising from any payment to, or any claim
by, any employee of the business sold under the Sale
Agreement who is not offered, or does not accept an
offer of, employment by the purchaser relating to the
redundancy of that employee as a result of or in
connection with the sale under the Sale Agreement;
and
(iii) an amount equal to the aggregate of:
(A) the costs incurred by Jupiters or any of its
Related Entities in relation to the
termination of; and
(B) the net present value (applying a discount
rate of 8%) of the additional costs which
are reasonably likely to be incurred after
completion under the Sale Agreement by
Jupiters or any of its Related Entities
under, or in relation to the termination of,
any contract, arrangement or understanding forming
part of the assets sold (or intended to be sold)
under the Sale Agreement Assets which is not assigned
or novated to the purchaser under the Sale Agreement
(except in the case of a sale of Centrebet to the
purchaser where assignment or novation to the
purchaser is not required as a result of Centrebet
being the relevant party to that contract,
arrangement or understanding); less
(g) $500,000; less
(h) (i) $10 million; and
(ii) 12% of the amount by which the amount calculated in
accordance with paragraphs (a) to (g) above exceeds
$30 million.
SALE AGREEMENT means a definitive and legally binding agreement,
whether conditional or unconditional, for the sale, to a person other
than Jupiters or any of its Related Bodies Corporate, of the internet
and telephone gambling business conducted (or proposed, as contemplated
by the Merger Implementation Agreement, to be conducted) by Centrebet
Pty Limited (ABN 76 082 760 610) and Jupiters UK Limited (Company
Number 04279246), entered into after 31 October 2003 as contemplated by
the Merger Implementation Agreement.
Page 154
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
SALE COMPLETION means the first time at which both of the following are
satisfied:
(a) completion under a Sale Agreement has occurred; and
(b) the purchase price payable by the purchaser under that Sale
Agreement has been received by Jupiters and its relevant
Related Bodies Corporate, and any adjustments to that purchase
price have been made, and any disputes in relation to any such
adjustments have been finally determined, in accordance with
that Sale Agreement.
SUBSIDIARY has the meaning given in the Corporations Act.
2. CALCULATION OF NET SALE PROCEEDS
2.1 PREPARATION AND AUDIT OF CALCULATION
The Issuer must procure the preparation, and delivery to the Note
Trustee, of a written calculation of, and an audit certificate of the
Auditor as to, the amount of the Net Sale Proceeds as soon as
practicable after the Sale Completion. The written calculation must be
the subject of audit by the Auditor and certified in the audit
certificate. The written calculation must be prepared, to the extent
relevant, in accordance with the Accounting Principles.
2.2 PROVISION OF ASSISTANCE
The Issuer must procure that TABCORP and its Subsidiaries, and all
directors and employees of TABCORP and its Subsidiaries, give, on
reasonable notice, all necessary assistance to and provide full and
complete access to all information (including books, records and
accounts) as may be reasonably requested by the Auditor for the purpose
of auditing the written calculation, and preparing the audit
certificate, referred to in paragraph 2.1 of this schedule 3.
2.3 DISPUTE BY ISSUER
(a) (NOTICE OF DISPUTE) Unless within 5 Business Days of the date
of delivery of the written calculation and audit certificate
under paragraph 2.1 of this schedule 3, the Issuer gives
notice in writing (a DISPUTE NOTICE) to the Note Trustee that
it does not agree that the written calculation and the audit
certificate have been prepared in accordance with this
schedule 3, the Issuer will be deemed to agree to the
correctness of that written calculation and the audit
certificate for the purposes of this deed (including the
Conditions) and the Certificate will be final and binding on
the Issuer, the Note Trustee and the Noteholders.
(b) (BEST ENDEAVOURS TO RESOLVE) If the Issuer gives a Dispute
Notice, then the Issuer and the Auditor must use their best
endeavours to reach agreement as to the matter or matters in
dispute within 10 Business Days after the service of that
Dispute Notice.
(c) (REFERENCE TO EXPERT ACCOUNTANT) If no agreement is reached as
to the matter or matters in dispute within 10 Business Days of
service of a Dispute Notice, such matter or matters must be
referred to the Expert Accountant for determination. The
Expert Accountant will act as an expert and not as an
arbitrator. The Expert Accountant must be instructed to notify
its determination to the Issuer and the Note Trustee as soon
as practicable following the Expert Accountant's appointment,
by means of a written determination which will be final and
binding on the Issuer, the Note Trustee and the Noteholders.
Page 155
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
(d) (PROVISION OF INFORMATION) The Expert Accountant will have the
right to request any information from the Auditor and the
Issuer relevant to any determination it may be required to
make. If any matter is referred to the Expert Accountant, the
Issuer and the Auditor must use their best endeavours to
cooperate with the Expert Accountant in resolving the matter
or matters the subject of the Dispute Notice and for that
purpose must provide all such information and documentation as
the Expert Accountant may reasonably require. Each of the
Issuer and the Auditor will be entitled to submit written
representations to the Expert Accountant in connection with
the matter or matters the subject of the Dispute Notice.
(e) (DETERMINATION BY EXPERT ACCOUNTANT) Promptly upon the
determination of the matter or matters the subject of the
Dispute Notice, the Issuer must procure preparation of such
adjustments (if any) to the written calculation of the amount
of the Net Sale Proceeds as may be required by such
determination, and must procure the audit by the Auditor of
such adjustments (to the extent required by the determination
of the Expert Accountant). Upon such adjustments being
prepared and audited (if required), the revised written
calculation and audit certificate of the Auditor will be
delivered to the Note Trustee, and will be final and binding
on the Issuer, the Note Trustee and the Noteholders. In giving
its determination as to the matter or matters the subject of a
Dispute Notice, the Expert Accountant must state what
adjustments (if any) are to be made to the written calculation
of the amount of the Net Sale Proceeds, and the further audit
(if any) required to be performed by the Auditor.
Page 156
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
EXECUTED as an agreement.
EXECUTED by TABCORP HOLDINGS LIMITED:
_____________________________________ _______________________________________
Director Signature Director/Secretary Signature
_____________________________________ _______________________________________
Print Name Print Name
EXECUTED by JUPITERS LIMITED:
_____________________________________ _______________________________________
Director Signature Director/Secretary Signature
_____________________________________ _______________________________________
Print Name Print Name
Page 157
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE A
ORDINARY SCHEME
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE B
RPS SCHEME
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE C
OPTION SCHEME
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE D
DEED POLL
MERGER IMPLEMENTATION AGREEMENT [ALLENS ARTHUR ROBINSON LOGO]
ANNEXURE E
ONGOING CENTREBET ARRANGEMENTS
ATTACHMENT 2
1. PLANT AND EQUIPMENT
The plant and equipment listed in Attachment 1.
2. BUSINESS RECORDS
All of Centrebet's and Jupiters' customer, supplier, financial,
business, and employee records, data, information and documents
relating directly to the Centrebet Business and/or the Centrebet Assets
excluding:
(a) Jupiters' and Centrebet's books of account and financial
records pertaining to such books of account;
(b) tax returns and supporting documentation;
(c) correspondence and memoranda relating to the relationship
between Jupiters and Centrebet and the purchaser;
(d) any other confidential information that in the reasonable
opinion of Jupiters and Centrebet is not germane to the
Centrebet Assets after completion of the Centrebet Sale
Agreement; and
(e) Centrebet's and Jupiters' board resolutions and minutes and
other company records.
3. GOODWILL
The goodwill of Centrebet in relation to the Centrebet Business with
exclusive right for the purchaser to represent itself after completion
as carrying on the Centrebet Business.
4. INTELLECTUAL PROPERTY RIGHTS
(a) TRADE MARKS
The following trade marks together with all of the goodwill
and reputation rights in such trade marks, in the
jurisdictions in which those marks are registered.
TRADE MARK COUNTRY NUMBER STATUS GOODS/SERVICES
---------- ------- ------ ------ --------------
[TRADE MARK GRAPHIC] Australia 865990 Registered CLASS 16: Goods made from paper or
(renew 14 cardboard; printed matter; promotional
Feb 2011) materials in this class; playing cards;
calendars; posters
CLASS 25: Clothing and headgear
CLASS 41: Gaming, wagering, sports betting
and bookmaking services
2
TRADE MARK COUNTRY NUMBER STATUS GOODS/SERVICES
---------- ------- ------ ------ --------------
[TRADE MARK GRAPHIC] Norway 212346 Registered CLASS 16: Goods made from paper or
(renew 13 cardboard; printed matter; promotional
Dec 2011) materials in this class including signage,
newspapers, brochures, written marketing
material, information material and
magazines; playing cards; calendars; posters
CLASS 25: Clothing and headgear
CLASS 41: Gaming, wagering, sports betting
and bookmaking services
[TRADE MARK GRAPHIC] EU 2183556 Registered CLASS 16: Goods made from paper or
(renew 18 cardboard; printed matter; promotional
Apr 2011) materials in this class; playing cards;
calendars; posters
CLASS 25: Clothing and headgear
CLASS 41: Gaming, wagering, sports betting
and bookmaking services
CENTREBET Australia 771374 Registered CLASS 41: Bookmaking services on sports and
(renew 27 horseracing (betting)
Aug 2008)
CENTREBET Norway 210689 Registered CLASS 41: Bookmaking, services on sports and
(renew 27 horseracing (betting)
Sep 2011)
CENTREBET EU 1102086 Registered CLASS 41: Gaming, wagering, sports betting
(renew 8 and bookmaking services
Mar 2009)
(b) BUSINESS NAME
The following business name and any goodwill incidental to
such business name.
BUSINESS NAME JURISDICTION REFERENCE
- ------------- ------------ ---------
Centrebet Northern Territory NT 68381B
(c) CUSTOMER DATABASE
The copyright in Centrebet's customer database containing
details of its customers.
3
5. BUSINESS CONTRACTS
The benefit of those contracts listed in Attachment 2 together with
Centrebet's contracts with its customers and the domain name licences
referred to below together with all of the goodwill and reputation
rights associated with such licences.
DOMAIN NAME REGISTRAR REGISTRANT/LICENSEE
----------- --------- -------------------
centrebet.com Network Solutions Centrebet Pty Ltd
centrebet.net Network Solutions Centrebet Pty Ltd
centrebet.org Network Solutions Centrebet Pty Ltd
centerbet.com Network Solutions Centrebet Pty Ltd
centerbet.net Network Solutions Centrebet Pty Ltd
centerbet.org Network Solutions Centrebet Pty Ltd
centrebet.com.au Melbourne IT Centrebet Pty Ltd
centrebet.co.uk Nominet UK Ltd Steven David Dudman
(through UK2 Ltd)
Centrebet.dk DK Hostmaster A/S Centrebet Pty Ltd
centerbet.co.uk Nominet UK Ltd Centrebet Pty Ltd
6. BANK ACCOUNTS
The following bank accounts together with a sum equal to the closing
balance in such bank accounts on the date of completion of the
Centrebet Sale.
COUNTRY/CURRENCY BANK ACCOUNT NO ACCOUNT NAME
- ---------------- ---- ---------- ------------
Australia National Australia Bank 519 136 465 Centrebet
(AUD account) Pty Ltd
Australia National Australia Bank CENTRDKK01 Centrebet Pty Ltd
DKK Account
(DKK account)
Australia National Australia Bank CENTRUSD01 Centrebet Pty Ltd
(USD account) USD Account
Finland (DKK) Nordea Bank Finland Plc 120042-9007 Centrebet Pty
Finland (EUR) Nordea Bank Finland Plc 120030-12989 Centrebet Pty
Germany (EUR) Dresdner Bank 09 778 056 00 Centrebet
Norway (NOK) Union Bank of Norway 1594 09 62185 Centrebet
Sweden (SEK) Nordea Bank of Sweden 3959 10 02319 Centrebet
Australia (AUD) ANZ Banking Group Ltd 7758 07088 Centrebet Pty
Limited - Credit Card
Australia (AUD) ANZ Banking Group Ltd 986926044 Centrebet Pty
Limited - Term
Deposit
Australia (AUD) Westpac Banking Corporation 13-1876 Centrebet Pty Limited
4
COUNTRY/CURRENCY BANK ACCOUNT NO ACCOUNT NAME
- ---------------- ---- ---------- ------------
United Kingdom National Westminster (Royal 16179056 Jupiters UK Limited
(GBP) Bank of Scotland)
7. PREPAYMENTS
The value and benefit of all prepayments, outgoings and expenses paid
by Jupiters or Centrebet in connection with the Centrebet Assets and
the Centrebet Business in respect of any period after completion of the
Centrebet Sale.
8. PLACED WAGERS
The value and benefit of undecided wagers placed by Centrebet with a
third party prior to completion decided after completion of the
Centrebet Sale Agreement.
9. TAKEN WAGERS
The value and benefit of any losing wagers placed with the Centrebet
Business prior to completion decided after completion of the Centrebet
Sale Agreement.
10. CENTAUR SOFTWARE
The copyright in the source and object code of the following software
modules:
MODULE ORIGIN VERSION
------ ------ -------
Components
ARM CENTAUR 2.4.0.0
BAR CENTAUR 2.4.0.0
BOK CENTAUR 2.4.0.0
BRA CENTAUR 2.4.0.0
DAG CENTAUR 2.4.0.0
FIX CENTAUR 2.4.0.0
HRB CENTAUR 2.4.0.0
NTW CENTAUR 2.0.0.1
Sports Betting CENTAUR 2.4.0.0
NTDIB Service
PSP CENTAUR 2.3.03
SDI CENTAUR 2.4.0.0
Dynamic Linked Libraries
Bugslayer.dll CENTREBET 1.0.0.1
Rim.dll CENTREBET 2.4.0.0
Cryptoki.dll CENTREBET NA
Sbpopb.dll CENTREBET 2.4.0.0
Dbghelp.dll CENTREBET 5.0.2195.1
Web
PHP API CENTAUR 2.3.0.0
GENERAL API CENTAUR 2.3.0.0
SEO Site CENTAUR 2.3.0.0
Admin Site CENTAUR 2.3.0.0
Main Site CENTAUR 2.3.0.0
5
11. CENTAUR/COUGAR SOFTWARE
The licence of the software as contained in Centaur Software Assignment
and Licence Agreement set out in annexure E.
12. BPAY
Bpay Biller Code 36400.
13. DEBTORS
All amounts due to the Centrebet Business at completion by or in
respect of trade debtors.
14. CENTREBET LIMITED SHARE
The one share in Centrebet Limited
15. JUPITERS UK LIMITED
The 10 shares in Jupiters UK Limited.
16. ASSETS IN THE ORDINARY COURSE OF BUSINESS
All assets acquired by Jupiters or Centrebet in the ordinary course of
business after 30 April 2003 which relate directly to the Centrebet
Business.
17. CONTRACTS IN THE ORDINARY COURSE OF BUSINESS
All contracts entered into by Jupiters or Centrebet in the ordinary
course of business after 30 April 2003 which relate directly to the
Centrebet Business.
18. LICENCES
The Licence to Conduct Business of Sports Bookmaker granted to Jupiters
NT Pty Limited under section 90 of the Racing and Betting Act (Northern
Territory), and any licence granted to Centrebet under Division 5 of
the Gaming Control Act 1993 (Northern Territory) after the date of this
Agreement, should such licences be assignable.
TABLE OF CONTRACTS TO BE ASSIGNED TO PURCHASER UNDER CENTREBET SALE AGREEMENT
NAME AND PARTIES
SALES, MARKETING AND DISTRIBUTION
1 Agreement between Getty Images Pty Limited and Centrebet Pty Ltd (dated
9 December 2002)
2 Affiliate Partner Linking Agreement between Centrebet Pty Ltd and
BetBrain Ltd (dated 3 August 2001)
3 Affiliate Agreement between Phoenix Online and Centrebet (dated 1 May
2003)
4 Sponsorship Agreement for 2003 between Centrebet.com and TvDanmark A/S
(dated 20 December 2003 (sic))
INFORMATION AND COMMUNICATIONS TECHNOLOGY
1 Licences between Microsoft Corporation and Centrebet Pty Ltd in
relation to: WinNT CAL 4.0 (dated 3 September 2001), Office XP Pro
(dated 24 August 2001), WinNT Svr 4.0 (dated 27 February 2001)
Licences between Microsoft Corporation and Jupiters Ltd in relation to:
Office XP SB (dated 28 June 2002), Office XP (dated 28 June 2002),
VsourceSafe 6.0 (dated 7 January 2002), VC++ Pro (dated 6 November
2001), Project 2000 (dated 20 June 2001), Visio Pro 2002 (dated 20 June
2001), Visio Std 2002 (dated 20 June 2001), Office XP Pro (dated 3
November 2002), Project 2000 (dated 30 August 2001)
2 Licences between Check Point Software Technologies Ltd and Centrebet
Pty Ltd in relation to: ClusterXL (dated 12 March 2002), VPN-1 Bundle
(dated 29 March 2002), Enterprise Management Console (dated 12 August
2002), SecuRemote Client (dated 10 September 2001), VPN-1 SecureClient
(dated 18 April 2002), VPN-1 Gateway (dated 13 March 2002)
3 Licences between Lotus Development Corporation and Centrebet Pty Ltd in
relation to: Notes client with collaboration (dated 22 November 2000),
Domino Server (dated 1 June 2002), Domino Designer (dated 1 June 2002)
Maintenance agreements between Lotus Development Corporation and
Centrebet Pty Ltd in relation to Notes client with collaboration (dated
1 June 2002 and 27 February 2003), Domino Server (dated 1 June 2002 and
27 February 2003), Domino Designer (dated 27 February 2003).
2
NAME AND PARTIES
4 Licences between Symantec Australia Pty Ltd and Centrebet Pty Ltd in
relation to SA MSE 2.1 NT (dated 19 April 2002), A/V Corporate 8.0
(dated 1 November 2002), A/V Filtering 3.0 Domino (dated 23 May 2002),
GST Corp 7.5 In #D (dated 29 July 2002), Sav Ent Ed 8.0 in #C Upg.
Agreements between Symantec Australia Pty Ltd and Centrebet Pty Ltd in
relation to support, maintenance and upgrade of SA MSE 2.1 NT (dated 19
April 2002), I/O Sav Corp Ed Gold (dated 14 November 2003), Sav Fltr
Dom 3.0 (dated 23 May 2002), Sav Fltr Dom 3.0 #B (dated 19 April
2002-2003), I/O Sav Ent Ed Corp (dated 15 February 2002-2003), Sav Ent
Ed 8.0 in 1YR FOC (dated 15 February 2002-2003).
5 Licences between Computer Associates International Inc and Centrebet
Pty Ltd in relation to: ARCServe 2000 (dated 10 May 2002), ARCServe
2000 Backup Agent for NT, ARCServe 2000 Tape Library, ARCServe 2000
Backup Agent for Notes, ARCServe 2000 Universal Client Agent, CA OLP
Solutions Kit
Maintenance agreements between Computer Associates International Inc
and Centrebet Pty Ltd in relation to ARCServe 2000 Backup Agent for NT,
ARCServe 2000, ARCServe 2000 Tape Library, ARCServe 2000 Backup Agent
for Notes, ARCServe 2000 Universal Client Agent (dated 1 May 2002-2004.
6 Licence agreements between Sybase and Jupiters Ltd in relation to ASE
Server (1), ASE Standby Server (1), ASE Server Clients (70), ASE Server
IAL CPUs (8), Replication Server (2), Replication Standby Server (1),
Replication Server Clients (70), Replication Server IAL CPUs (4).
7 Licence agreement between Adobe Systems Inc and Centrebet Pty Ltd in
relation to Adobe Acrobat 5.0 (dated 31 October 2002).
8 Licence agreement between Esker Australia Pty Ltd and Centrebet Pty Ltd
in relation to VSI-FAX for Notes (dated 1 September 2002).
Software Maintenance and Support Agreement between Esker Australia Pty
Ltd and Centrebet Pty Ltd. (dated 1 September 2002)
9 Licence agreements between SAS Institute Australia Pty Ltd and Jupiters
Ltd in relation to data warehouse analysis tools (dated 31 December
2002)
Development agreements between SAS Institute Australia Pty Ltd and
Jupiters Ltd in relation to data warehouse analysis (dated 31 December
2002)
3
NAME AND PARTIES
10 Software Transfer / Maintenance Service Agreement between Centrebet Pty
Ltd and Dresdner Bank Aktiengesellschaft
11 Maintenance & Support Agreement between Clearswift (Asia/Pacific Pty
Ltd) Pty Ltd and Centrebet Pty Ltd in relation to MIMESweeper software
(dated 6 June 2002)
12 Agreement between Exodus Internet Ltd and Centrebet Pty Ltd in relation
to hosting, colocation, remote support and internet connectivity and
bandwidth for Centrebet's web servers at Exodus' London, UK colocation
facility (dated 29 December 2001).
13 Agreement between Biz Digital Pty Ltd and Jupiters Ltd in relation to
web development services (statements of work dated 30 August 2002)
14 Safecom Search Engine Positioning Contract
15 Agreements between Bizcom (NT) and Centrebet Pty Ltd in relation to
maintenance of laser printers, fax and photocopier equipment (dated 11
May 2000)
16 Agreement with Verisign Australia Limited dated 30 April 2003 for
provision of SSL Server Certificates and certification services.
17 MYOB software to be acquired in late May early June
4
NAME AND PARTIES
18 TELSTRA CORPORATION LIMITED
MOBILE SERVICES
10 mobile telephone services without associated term contracts
5 mobile telephone services with associated term contracts ending 13
November 2003 (x2), 26 May 2004, 7 November 2004
INTERNET DIRECT SERVICES
6Mbps Serial Megalink data service with associated term contract ending
29 April 2004
1.5Mbps ADSL data service without associated term contract
2Mbps Serial Megalink data service with associated term contract ending
19 June 2004
1.5Mbps ADSL data service with associated term contract ending 4
February 2004
FLEXCAB SERVICES (MONTHLY RENTAL)
Austpac NUI, 4 x Apac NUI Abbreviated Addr Fac (Lot 5120 Stuart Hwy,
Alice Springs)
Private Line Megalink 2Mbps (Optic) (Level 36, 50 Bridge St, Sydney, to
be transferred to Alice Springs)
Private Line Big Pond 2M (Level 1, 34 Hartley St, Alice Springs)
2 x Private Line Big Pond 2M; Express4-Network Sa Lmb&Mlnk (Hartley St)
Telecard
ISDN 20; OnRamp 30 Clip Per 2M Link; 100 Number Indial Range F1200-1299
(Hartley St)
4 x ISDN 2 Businessline Complete + Calling Line Id Presentation
(Hartley St)
4 x ISDN 2 Businessline Complete Aux (Alice Springs Exchange)
1 x Businessline Complete Service Line Hunt Directory (Hartley St)
13 x Businessline Complete Service Line Hunt Aux (Hartley St)
12 x Businessline Complete Service (11 at Hartley St; 1 at Lot 1974, 15
The Fairway Road, Alice)
2 x Businessline Fax Service (Hartley St)
5
NAME AND PARTIES
19 ADDITIONAL PLATFORM, OFFICE AUTOMATION, MESSAGING AND DEVELOPMENT
SOFTWARE
Software licensed by Centrebet or Jupiters (where the software
installed under the licence is used solely in the Centrebet Business)
and used as an operating system platform, and for office automation,
messaging and development, in addition to that referred to in the above
items, and including:
- Microsoft Windows;
- Microsoft Office;
- Microsoft Visio;
- Microsoft Project;
- Microsoft Access;
- Microsoft Visual SourceSafe;
- Microsoft Visual C++;
- Lotus Notes;
- MYOB Asset Manager;
- World Mail Server;
- Winzip;
- Symantec Ghost;
- Adobe Photoshop;
- Adobe Illustrator;
- Adobe Indesign;
- Adobe Acrobat;
- Macromedia Ultradev;
- Webstar;
- Macromedia Fireworks;
- Macromedia Director;
- Macromedia Flash;
- FunnelWeb Enterprise;
- Legato Octopus HA;
- Timbuktu Pro 2000;
- Sentinel;
- Mac OS9; and
- Sybiz.
MANAGEMENT AND EMPLOYEES
1 Contractor Agreement between Jupiters Limited and CXC Consulting Pty
Ltd (Chris Corcoran) (dated 6 March 2003)
2 Contractor Agreement between Jupiters Limited and IT Global (UK) (Peter
Oxenham) (dated 6 March 2003)
3 Temporary Appointment Confirmation and General Terms and Conditions -
Workzone Pty Ltd (Vanessa Lynch) (dated 2 May 2003)
4 Temporary Appointment Confirmation and General Terms and Conditions -
Workzone Pty Ltd (Michelle Linehan) (dated 13 March 2003)
5 Odd-Setting Agreement between Centrebet Pty Ltd and Michael Anderssen
(dated 6 January 2003)
6 Odd-Setting Agreement between Centrebet Pty Ltd and Victor Kristiansen
(dated 10 March 2003)
6
NAME AND PARTIES
7 Odd-Setting Agreement between Centrebet Pty Ltd and Victor Kristiansen
(dated 30 August 2002)
8 Odd-Setting Agreement between Centrebet Pty Ltd and Pepikn Teunissen
(dated 20 August 2002)
9 Odd-Setting Agreement between Centrebet Pty Ltd and Andreas Hagen
(dated 30 August 2002)
10 Odd-Setting Agreement between Centrebet Pty Ltd and Ralf Koschel (dated
24 October 2002)
11 Odd-Setting Agreement between Centrebet Pty Ltd and Torvald Brynggard
(dated 18 November 2002)
12 Odd-Setting Agreement between Centrebet Pty Ltd and Vidar Gustad (dated
18 November 2002)
13 Odd-Setting Agreement between Centrebet Pty Ltd and Claes Svenssen
(dated 18 November 2002)
MISCELLANEOUS CONTRACTS
1 GE Capital Fleet Services Operating Lease between Jupiters Limited and
GE Capital Fleet Services Australia Pty Ltd - Holden VX Commodore
Executive 3.8 EFI A4 Sedan, Engine Number VA 121957 (commencement date
24 August 2001 - Latest vehicle return date 24 August 2004)
2 GE Capital Fleet Services Operating Lease between Jupiters Limited and
GE Capital Fleet Services Australia Pty Ltd - Holden (VX2 Berlina 3.8
EFI A4 Sedan), Engine Number VA 181839 (commencement date 20 December
2001 - Latest vehicle return date 19 December 2004)
3 GE Capital Fleet Services Operating Lease between Jupiters Limited and
GE Capital Fleet Services Australia Pty Ltd - Holden VX Berlina 3.8 EFI
A4 Sedan, Engine Number VA 115913 (commencement date 15 June 2001 -
Latest vehicle return date 15 June 2004)
4 Two novation agreements between Jupiters Limited, Gerard Daffy and SMB
Fleet Management Limited (dated 9 December 2002)
5 Novation agreement between Centrebet, Ian loughlin and Macquire Leasing
Pty Limited (Undated and unsigned by Macquarie Leasing Pty Limited))
7
NAME AND PARTIES
PROPERTY
1 Memorandum of Lease between Yeperenye Pty Ltd and Centrebet Pty Ltd
commencing on 1 October 2000 and expiring on 30 September 2005.
ANNEXURE A: Scheme of Arrangement
PURSUANT TO SECTION 411 OF THE CORPORATIONS ACT 2001 (Cth)
BETWEEN
JUPITERS LIMITED (ABN 78 010 741 045) of 17 Victoria Avenue,
Broadbeach, Queensland, Australia
AND
THE HOLDERS OF FULLY PAID ORDINARY SHARES IN JUPITERS LIMITED
(other than any person holding fully paid ordinary shares in
Jupiters Limited on behalf of, or for the benefit of, TABCORP
or any of its Related Entities)
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this document, the following definitions apply unless the context
requires otherwise.
1936 TAX ACT means the Income Tax Assessment Act 1936 (Cth).
1997 TAX ACT means the Income Tax Assessment Act 1997 (Cth).
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited (ABN 98 008 624 691).
ASX LISTING RULES means the official listing rules of ASX.
BUSINESS DAY has the meaning given in the ASX Listing Rules.
CASH CONSIDERATION means:
(a) if the Tax Ruling Event occurs, $5.25; and
(b) if the Tax Ruling Event does not occur, $6.00.
CASH CONSIDERATION CAP means:
(a) if the Tax Ruling Event occurs, $2.85 multiplied by the number
of Scheme Shares on issue at the Record Date; and
(b) if the Tax Ruling Event does not occur, $3.60 multiplied by
the number of Scheme Shares on issue at the Record Date.
CASH CONSIDERATION SHARES means, in relation to a Scheme Shareholder,
the number of that Scheme Shareholder's Scheme Shares determined in
accordance with clause 5.3.
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Scheme of Arrangement
CENTREBET CLASS RULING means a public ruling under Part IVAAA of the
Taxation Administration Act 1953 (Cth) that:
(a) the Centrebet Dividend is a dividend pursuant to section 6(1)
of the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(b) of the 1936 Tax Act in respect
of the Centrebet Dividend or any part of it;
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(c) of the 1997 Tax Act in
respect of the Centrebet Dividend or any part of it; and
(d) section 177E of the 1936 Tax Act does not apply in respect of
the Centrebet Dividend or any part of it.
CENTREBET DIVIDEND means a fully franked special dividend of a cash
amount equal to the Net Centrebet Proceeds divided by the number of
Jupiters Shares on issue at the Record Date, to be declared by the
Jupiters Board and paid by Jupiters in accordance with clause 4.5.
CENTREBET NOTE means the unsecured note to be issued by TABCORP Issuer
in accordance with clause 5.1(c)(ii) under the Centrebet Note Deed,
providing for a potential cash payment to holders.
CENTREBET NOTE DEED means the Trust Deed dated [*] 2003 between
TABCORP, TABCORP Issuer and [*TRUSTEE].
CENTREBET PAYMENT means a payment of a cash amount equal to the Net
Centrebet Proceeds divided by the number of Jupiters Shares on issue at
the Record Date, to be made by TABCORP Acquirer in accordance with
clause 5.1(c)(i).
CENTREBET PRIVATE RULING means a private ruling under Part IVAA of the
Taxation Administration Act 1953 (Cth) that:
(a) the Centrebet Dividend is a dividend pursuant to section 6(1)
of the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(a) of the 1936 Tax Act in respect
of the Centrebet Dividend or any part of it; and
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(a) or section 204-30(3)(b) of
the 1997 Tax Act in respect of the Centrebet Dividend or any
part of it.
CENTREBET SALE AGREEMENT means a definitive and legally binding
agreement, whether conditional or unconditional, for the sale, to a
person other than Jupiters or any of its Related Entities, of the
internet and telephone gambling business conducted (or proposed, as
contemplated by the Merger Implementation Agreement, to be conducted)
by Centrebet Pty Limited (ABN 76 082 760 610) and Jupiters UK Limited
(Company Number 04279246), entered into in accordance with the Merger
Implementation Agreement.
CENTREBET SALE COMPLETION means the first time at which both of the
following are satisfied:
(a) completion under a Centrebet Sale Agreement has occurred; and
(b) the purchase price payable by the purchaser under that
Centrebet Sale Agreement has been received by Jupiters and its
relevant Related Entities, and any adjustments to that
purchase
Page 2
Scheme of Arrangement
price have been made, and any disputes in relation to any such
adjustments have been finally determined, in accordance with
that Centrebet Sale Agreement.
CENTREBET TAX RULING EVENT means the Commissioner of Taxation making
each of the Centrebet Class Ruling and the Centrebet Private Ruling
(having first been provided with a copy of the Merger Implementation
Agreement).
CHESS means the Clearing House Electronic Subregister System for the
electronic transfer of securities, operated by ASX Settlement and
Transfer Corporation Pty Limited (ABN 49 008 504 532).
CLASS RULING means a public ruling under Part IVAAA of the Taxation
Administration Act 1953 (Cth) that:
(a) the Special Dividend is a dividend pursuant to section 6(1) of
the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(b) of the 1936 Tax Act in respect
of the Special Dividend or any part of it;
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(c) of the 1997 Tax Act in
respect of the Special Dividend or any part of it; and
(d) section 177E of the 1936 Tax Act does not apply in respect of
the Special Dividend or any part of it.
CONDITIONS PRECEDENT means the conditions precedent set out in clause
3.1.
CORPORATIONS ACT means the Corporations Act 2001 (Cth).
COURT means the Supreme Court of Queensland.
DEED POLL means the Deed Poll dated [*] 2003 executed by TABCORP,
TABCORP Acquirer and TABCORP Issuer, pursuant to which each of TABCORP,
TABCORP Acquirer and TABCORP Issuer has, amongst other things,
covenanted in favour of Scheme Shareholders to perform the obligations
contemplated of it under the Ordinary Scheme.
EFFECTIVE DATE means the date on which the Scheme Order comes into
effect pursuant to section 411(10) of the Corporations Act.
ELECTION means a valid election made by a Scheme Shareholder as to the
form of Ordinary Scheme Consideration (to the extent it comprises Cash
Consideration or Scrip Consideration) which that Scheme Shareholder
wishes to receive for the maximum possible number of their Scheme
Shares in accordance with the form of election included in, or
accompanying, the Scheme Booklet.
ELIGIBLE SCHEME SHAREHOLDER means a Scheme Shareholder other than an
Ineligible Overseas Shareholder.
EXCLUDED SHARE means a Jupiters Share held by any person on behalf of,
or for the benefit of, TABCORP or any of its Related Entities.
IMPLEMENTATION DATE means the third Business Day after the Record Date.
INELIGIBLE NOTE DEED means the Trust Deed dated [*] 2003 between
TABCORP, TABCORP Issuer and [*TRUSTEE].
Page 3
Scheme of Arrangement
INELIGIBLE NOTE TRUSTEE means the person nominated by TABCORP and
approved by Jupiters to be issued and to hold the Centrebet Notes (if
any) that are attributable to Ineligible Overseas Shareholders under
the terms of the Ordinary Scheme.
INELIGIBLE OVERSEAS SHAREHOLDER means:
(a) a Scheme Shareholder whose address as shown in the Jupiters
Share Register at the Record Date is in a jurisdiction other
than Australia or its external territories, Hong Kong or the
United Kingdom; and
(b) a Scheme Shareholder to the extent that they hold Scheme
Shares on behalf of any person resident in the United States
of America,
except where:
(c) in the case of the issue of TABCORP Shares, TABCORP is
reasonably satisfied that such issue to that Scheme
Shareholder is not prohibited, not unduly onerous and not
unduly impracticable in that jurisdiction; and
(d) in the case of the issue of Centrebet Notes, TABCORP is
reasonably satisfied that such issue to that Scheme
Shareholder is not prohibited, not unduly onerous and not
unduly impracticable in that jurisdiction.
JUPITERS means Jupiters Limited (ABN 78 010 741 045).
JUPITERS BOARD means the board of directors of Jupiters.
JUPITERS SHARE means a fully paid ordinary share in the capital of
Jupiters.
JUPITERS SHARE REGISTER means the register of members of Jupiters
maintained pursuant to the Corporations Act.
JUPITERS SHARE REGISTRY means Computershare Investor Services Pty
Limited (ABN 48 078 279 277) of Level 12, 565 Bourke Street, Melbourne,
Victoria.
JUPITERS SHAREHOLDER means each person registered in the Jupiters Share
Register as the holder of Jupiters Shares.
MAXIMUM CASH ELECTION has the meaning given in clause 5.3(c).
MAXIMUM SCRIP ELECTION has the meaning given in clause 5.4(c).
MERGER IMPLEMENTATION AGREEMENT means the Merger Implementation
Agreement dated [*] 2003 between TABCORP and Jupiters.
NET CENTREBET PROCEEDS has the meaning given in the Merger
Implementation Agreement.
ORDINARY SCHEME means this scheme of arrangement, subject to any
alterations or conditions made or required by the Court under section
411(6) of the Corporations Act.
ORDINARY SCHEME CONSIDERATION means the consideration to be provided to
Scheme Shareholders for the transfer to TABCORP Acquirer of their
Scheme Shares, ascertained in accordance with clause 5.
Page 4
Scheme of Arrangement
PRIVATE RULING means a private ruling under Part IVAA of the Taxation
Administration Act 1953 (Cth) that:
(a) the Special Dividend is a dividend pursuant to section 6(1) of
the 1936 Tax Act;
(b) the Commissioner of Taxation will not make a determination
pursuant to section 177EA(5)(a) of the 1936 Tax Act in respect
of the Special Dividend or any part of it; and
(c) the Commissioner of Taxation will not make a determination
pursuant to section 204-30(3)(a) or section 204-30(3)(b) of
the 1997 Tax Act in respect of the Special Dividend or any
part of it.
RECORD DATE means 5.00pm on the fifth Business Day after the Effective
Date.
REGISTERED ADDRESS means, in relation to a Jupiters Shareholder, the
address shown in the Jupiters Share Register.
RELATED ENTITY means, in relation to a person, any entity which is
related to that person within the meaning of section 50 of the
Corporations Act or which is an economic entity (as defined in any
approved Australian accounting standard) that is controlled by that
person.
SALE AGENT means the person nominated by TABCORP and approved by
Jupiters to sell the TABCORP Shares that are attributable to Ineligible
Overseas Shareholders under the terms of the Ordinary Scheme.
SCHEME BOOKLET means the information dispatched to Jupiters
Shareholders and approved by the Court, including the Ordinary Scheme,
an explanatory statement in relation to the Ordinary Scheme issued
pursuant to section 412 of the Corporations Act and registered with
ASIC, an independent expert's report, summaries of each of the Merger
Implementation Agreement and the Deed Poll, and a notice convening the
Scheme Meeting (together with proxy forms).
SCHEME MEETING means the meeting ordered by the Court to be convened
pursuant to section 411(1) of the Corporations Act in relation to the
Ordinary Scheme.
SCHEME ORDER means the order of the Court made for the purposes of
section 411(4)(b) of the Corporations Act in relation to the Ordinary
Scheme.
SCHEME SHAREHOLDER means each person registered in the Jupiters Share
Register as the holder of Scheme Shares as at the Record Date.
SCHEME SHARES means the Jupiters Shares on issue at the Record Date
other than the Excluded Shares.
SCRIP CONSIDERATION means:
(a) if the Tax Ruling Event occurs, 0.525 TABCORP Shares; and
(b) if the Tax Ruling Event does not occur, 0.6 TABCORP Shares.
SCRIP CONSIDERATION CAP means the number of TABCORP Shares (rounded up
or down to the nearest whole number of TABCORP Shares) equal to 0.24
multiplied by the number of Scheme Shares on issue at the Record Date.
SCRIP CONSIDERATION SHARES means, in relation to a Scheme Shareholder,
the number of that Scheme Shareholder's Scheme Shares determined in
accordance with clause 5.4.
Page 5
Scheme of Arrangement
SECOND COURT DATE means the first day on which an application made to
the Court for the Scheme Order is heard or, if the application is
adjourned for any reason, the first day on which the adjourned
application is heard.
SPECIAL DIVIDEND means a fully franked dividend of $0.75 cash for each
Jupiters Share on issue at the Record Date.
SPECIAL DIVIDEND RESOLUTION means a resolution of the Jupiters Board to
approve, in accordance with the Merger Implementation Agreement, the
declaration and payment by Jupiters of the Special Dividend.
TABCORP means TABCORP Holdings Limited (ABN 66 063 780 709).
TABCORP ACQUIRER means [*TABCORP ACQUIRER] (ABN [*]), a wholly-owned
Related Entity of TABCORP.
TABCORP ISSUER means [*TABCORP ISSUER] (ABN [*]), a wholly-owned
Related Entity of TABCORP.
TABCORP SHARE means a fully paid ordinary share in the capital of
TABCORP.
TABCORP SHARE REGISTER means the register of members of TABCORP
maintained pursuant to the Corporations Act.
TABCORP SHARE REGISTRY means ASX Perpetual Registrars Limited (ABN 54
083 214 537) of Level 4, 333 Collins Street, Melbourne, Victoria.
TAX RULING EVENT means, on or before 5.00pm on the day before the
Second Court Date, the Commissioner of Taxation making each of the
Class Ruling and the Private Ruling (having first been provided with a
copy of the Merger Implementation Agreement).
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, government agency or other entity
includes any of them.
(e) A reference to a clause is a reference to a clause of this
document.
(f) A reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns.
(g) A reference to an agreement or document (including, without
limitation, a reference to this document) is to the agreement
or document as amended, varied, supplemented, novated or
replaced, except to the extent prohibited by this document or
that other agreement or document.
Page 6
Scheme of Arrangement
(h) A reference to any legislation or to a provision of any
legislation includes a modification or re-enactment of it, any
legislative provision substituted for it and all regulations
and statutory instruments issued under it.
(i) Words and phrases not specifically defined in this document
have the same meanings (if any) given to them in the
Corporations Act.
(j) A reference to time is a reference to time in Brisbane,
Australia.
(k) A reference to $ is to the lawful currency of Australia.
2. PRELIMINARY
2.1 JUPITERS
(a) Jupiters is a public company incorporated in Australia and
registered in Queensland and is a company limited by shares.
Its registered office is at Level 9, Niecon Tower, 17 Victoria
Avenue, Broadbeach, Queensland.
(b) Jupiters has been admitted to the official list of ASX and
Jupiters Shares have been granted official quotation on the
stock market conducted by ASX.
(c) As at [*] 2003, [*] Jupiters Shares were on issue.
2.2 TABCORP
(a) TABCORP is a public company incorporated in Australia and
registered in Victoria and is a company limited by shares. Its
registered office is at 5 Bowen Crescent, Melbourne, Victoria.
(b) TABCORP has been admitted to the official list of ASX and
TABCORP Shares have been granted official quotation on the
stock market conducted by ASX.
(c) As at [*] 2003, [*] TABCORP Shares were on issue.
2.3 TABCORP ACQUIRER
TABCORP Acquirer is a [public/proprietary] company incorporated in
Australia and registered in [Victoria] and is a company limited by
shares. Its registered office is at [5 Bowen Crescent, Melbourne,
Victoria].
2.4 TABCORP ISSUER
TABCORP Issuer is a [public/proprietary] company incorporated in
Australia and registered in [Victoria] and is a company limited by
shares. Its registered office is at [5 Bowen Crescent, Melbourne,
Victoria].
2.5 SUMMARY OF THE ORDINARY SCHEME
(a) If the Ordinary Scheme becomes effective (by virtue of the
Scheme Order coming into effect in accordance with section
411(10) of the Corporations Act) then:
(i) all the Scheme Shares will be transferred to TABCORP
Acquirer, and TABCORP, TABCORP Acquirer and (if
required) TABCORP Issuer will provide the Ordinary
Page 7
Scheme of Arrangement
Scheme Consideration to Scheme Shareholders in
accordance with the provisions of the Ordinary
Scheme;
(ii) if required, Jupiters will pay the Special Dividend
and the Centrebet Dividend to Jupiters Shareholders
in accordance with the provisions of the Ordinary
Scheme; and
(iii) Jupiters will enter the name and address of TABCORP
Acquirer in the Jupiters Share Register as the holder
of the Scheme Shares.
(b) TABCORP has executed the Deed Poll in favour of the Scheme
Shareholders, pursuant to which it has covenanted to perform
the obligations contemplated of it under the Ordinary Scheme,
and to procure that TABCORP Acquirer performs the obligations
contemplated of TABCORP Acquirer, and TABCORP Issuer performs
the obligations contemplated of TABCORP Issuer, under the
Ordinary Scheme.
(c) TABCORP Acquirer has executed the Deed Poll in favour of the
Scheme Shareholders, pursuant to which it has covenanted to
perform the obligations contemplated of it under the Ordinary
Scheme.
(d) TABCORP Issuer has executed the Deed Poll in favour of the
Scheme Shareholders, pursuant to which it has covenanted to
perform the obligations contemplated of it under the Ordinary
Scheme.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS
The Ordinary Scheme is conditional on each of the following conditions
precedent:
(a) as at 8.00am on the Second Court Date, all of the conditions
set out in clause 3.1 of the Merger Implementation Agreement
have been satisfied or waived in accordance with the terms of
the Merger Implementation Agreement;
(b) as at 8.00am on the Second Court Date, the Merger
Implementation Agreement has not been terminated;
(c) the Ordinary Scheme has been approved by the requisite
majorities of Jupiters Shareholders in accordance with section
411(4)(a) of the Corporations Act at the Scheme Meeting;
(d) [the Jupiters Shareholders have approved, in accordance with
and for the purposes of ASX Listing Rule 7.1, the subscription
by TABCORP or a Related Entity of TABCORP for RPS or other
equity securities in Jupiters in accordance with clause 4.4(b)
of the Merger Implementation Agreement and (if necessary) in
accordance with paragraph 1.1(f) of schedule 6 to the Merger
Implementation Agreement];
(e) the Court has approved the Ordinary Scheme, with or without
modification, pursuant to section 411(4)(b) of the
Corporations Act; and
Page 8
Scheme of Arrangement
(f) such other conditions made or required by the Court under
section 411(6) of the Corporations Act in relation to the
Ordinary Scheme as are acceptable to TABCORP and Jupiters have
been satisfied,
and the Ordinary Scheme will be of no force or effect unless and until
the Conditions Precedent are satisfied.
3.2 CERTIFICATE
At the hearing by the Court of the application for the Scheme Order,
TABCORP and Jupiters will each provide to the Court a certificate
confirming whether or not all of the conditions set out in clause 3.1
of the Merger Implementation Agreement have been satisfied or waived in
accordance with the terms of the Merger Implementation Agreement.
3.3 TERMINATION OF MERGER IMPLEMENTATION AGREEMENT
In the event that the Merger Implementation Agreement is terminated,
each of Jupiters, TABCORP, TABCORP Acquirer and TABCORP Issuer is
released from:
(a) any further obligation to take steps to implement the Ordinary
Scheme; and
(b) any liability with respect to the Ordinary Scheme.
4. IMPLEMENTATION OF THE ORDINARY SCHEME
4.1 LODGEMENT
Jupiters must lodge with ASIC an office copy of the Scheme Order
promptly after, and in any event by 5.00pm on the first Business Day
after the date on which, the Court makes that order.
4.2 TRANSFER OF SCHEME SHARES
On the Implementation Date, all of the Scheme Shares (together with all
rights and entitlements attaching to the Scheme Shares, other than any
entitlement to the Special Dividend or to the Centrebet Dividend) will
be transferred to TABCORP Acquirer, without the need for any further
act by any Scheme Shareholder, by Jupiters procuring the delivery of a
transfer or transfers in respect of all of the Scheme Shares to ASX
Settlement and Transfer Corporation Pty Limited by a broker nominated
in writing by TABCORP to effect a valid transfer of the Scheme Shares
to TABCORP Acquirer under section 1074D of the Corporations Act or, if
that procedure is not available for any reason, by:
(a) Jupiters delivering to TABCORP duly completed and executed
share transfer forms (which may be a master transfer of all or
part of the Scheme Shares) to transfer all of the Scheme
Shares to TABCORP Acquirer;
(b) TABCORP Acquirer executing and delivering the share transfer
forms to Jupiters; and
(c) Jupiters entering the name and address of TABCORP Acquirer in
the Jupiters Share Register as the holder of all of the Scheme
Shares.
Page 9
Scheme of Arrangement
4.3 PROVISION OF ORDINARY SCHEME CONSIDERATION
In consideration for the transfer to TABCORP Acquirer of each Scheme
Share on the Implementation Date:
(a) TABCORP Acquirer will pay to each Scheme Shareholder such
amount of cash as is due to that Scheme Shareholder under
clause 5 as Cash Consideration;
(b) TABCORP Acquirer will pay to each Scheme Shareholder such
amount of cash (if any) as is due to that Scheme Shareholder
under clause 5.1(c)(i) as the Centrebet Payment;
(c) TABCORP will issue to each Eligible Scheme Shareholder such
number of TABCORP Shares as are due to that Eligible Scheme
Shareholder under clause 5 as Scrip Consideration;
(d) TABCORP will issue to the Sale Agent in accordance with clause
5.6(a) such number of TABCORP Shares as are attributable to
Ineligible Overseas Shareholders under clause 5 as Scrip
Consideration;
(e) TABCORP Issuer will issue to each Eligible Scheme Shareholder
such number of Centrebet Notes (if any) as are due to that
Eligible Scheme Shareholder under clause 5.1(c)(ii); and
(f) TABCORP Issuer will issue to the Ineligible Note Trustee in
accordance with clause 5.6(b) such number of Centrebet Notes
(if any) as are attributable to Ineligible Overseas
Shareholders under clause 5.1(c)(ii).
4.4 PAYMENT OF SPECIAL DIVIDEND
If the Tax Ruling Event occurs, Jupiters will:
(a) procure that the Jupiters Board passes the Special Dividend
Resolution after the Effective Date and on or before the
Record Date; and
(b) pay to each Scheme Shareholder a cash amount by way of the
Special Dividend in respect of each of their Scheme Shares.
4.5 PAYMENT OF CENTREBET DIVIDEND
If:
(i) a Centrebet Sale Agreement is entered into by Jupiters and its
relevant Related Entities, and the Centrebet Sale Completion
occurs, on or before 31 October 2003; and
(ii) the Centrebet Tax Ruling Event occurs on or before 30
September 2003,
Jupiters will:
(a) procure that the Jupiters Board, after the Effective Date and
on or before the Record Date, passes a resolution to approve,
in accordance with the Merger Implementation Agreement, the
declaration and payment by Jupiters of the Centrebet Dividend;
and
(b) pay to each Scheme Shareholder within five Business Days after
the Implementation Date a cash amount by way of the Centrebet
Dividend in respect of each of their Scheme Shares.
Page 10
Scheme of Arrangement
5. ORDINARY SCHEME CONSIDERATION
5.1 FORMS OF ORDINARY SCHEME CONSIDERATION
Subject to clauses 5.2, 5.6, 5.7 and 5.8, the Ordinary Scheme
Consideration in respect of the Scheme Shares held by a Scheme
Shareholder at the Record Date comprises:
(a) the Cash Consideration in respect of each of their Cash
Consideration Shares;
(b) the Scrip Consideration in respect of each of their Scrip
Consideration Shares; and
(c) if required by clause 5.5, either:
(i) the Centrebet Payment in respect of each of their
Scheme Shares; or
(ii) one Centrebet Note in respect of each of their Scheme
Shares.
5.2 ELECTION MECHANISM
(a) A Scheme Shareholder may make an Election by:
(i) completing and signing, in accordance with the
instructions on it, the form of election made
available for that purpose by Jupiters and included
in, or accompanying, the Scheme Booklet; and
(ii) returning the completed and signed form to TABCORP at
the address of the [Jupiters Share Registry] by the
Record Date.
(b) A Scheme Shareholder may make only a Maximum Cash Election or
a Maximum Scrip Election, but not both. An Election may not be
withdrawn or revoked.
(c) Any purported Election made otherwise than in accordance with
clauses 5.2(a) and (b) will not be valid for any purpose and
will not be recognised by TABCORP or Jupiters.
(d) The entitlement to Ordinary Scheme Consideration of each
Scheme Shareholder who does not make an Election will not be
affected by any Elections made by other Scheme Shareholders.
5.3 ALLOCATION OF CASH CONSIDERATION
The number of Scheme Shares in respect of which a Scheme Shareholder
will be entitled, subject to clause 5.8, to receive Cash Consideration
is (in each case rounded up or down to the nearest whole number of
Scheme Shares):
(a) in the case of a Scheme Shareholder who does not make an
Election:
(i) if the Tax Ruling Event occurs, 54.286% of their
Scheme Shares; and
(ii) if the Tax Ruling Event does not occur, 60% of their
Scheme Shares;
(b) in the case of a Scheme Shareholder who makes a Maximum Scrip
Election, the number of their Scheme Shares other than their
Scrip Consideration Shares; and
Page 11
Scheme of Arrangement
(c) in the case of a Scheme Shareholder who makes an Election to
receive Cash Consideration for the maximum possible number of
their Scheme Shares (a MAXIMUM CASH ELECTION), the lesser of
the number of their Scheme Shares and the number determined in
accordance with the formula:
((C - N) / A) x E
where:
C is the amount of cash comprising the Cash
Consideration Cap;
N is the total amount of cash (which may not be a whole
number) which Scheme Shareholders who have not made
an Election are entitled to receive as Cash
Consideration under the Ordinary Scheme;
A is the amount of cash (which may not be a whole
number) equal to the Cash Consideration amount
multiplied by the total number of Scheme Shares held
by Scheme Shareholders making Maximum Cash Elections;
and
E is the number of the Scheme Shareholder's Scheme
Shares.
The principle of this clause 5.3 is that, subject to the effects of
rounding, TABCORP Acquirer will not be obliged under the Ordinary
Scheme to pay an amount as Cash Consideration in total greater than the
Cash Consideration Cap.
5.4 ALLOCATION OF SCRIP CONSIDERATION
The number of Scheme Shares in respect of which a Scheme Shareholder
will be entitled, subject to clauses 5.6 and 5.8, to receive Scrip
Consideration is (in each case rounded up or down to the nearest whole
number of Scheme Shares):
(a) in the case of a Scheme Shareholder who does not make an
Election:
(i) if the Tax Ruling Event occurs, 45.714% of their
Scheme Shares; and
(ii) if the Tax Ruling Event does not occur, 40% of their
Scheme Shares;
(b) in the case of a Scheme Shareholder who makes a Maximum Cash
Election, the number of their Scheme Shares other than their
Cash Consideration Shares; and
(c) in the case of a Scheme Shareholder who makes an Election to
receive Scrip Consideration for the maximum possible number of
their Scheme Shares (a MAXIMUM SCRIP ELECTION), the lesser of
the number of their Scheme Shares and the number determined in
accordance with the formula:
((C - N) / A) x E
where:
C is the number of TABCORP Shares comprising the Scrip
Consideration Cap;
N is the number of TABCORP Shares which Scheme
Shareholders who have not made an Election are, or
would but for the operation of clause 5.6 be,
entitled to receive as Scrip Consideration under the
Ordinary Scheme;
Page 12
Scheme of Arrangement
A is the number of TABCORP Shares (which may not be a
whole number) equal to the Scrip Consideration amount
multiplied by the total number of Scheme Shares held
by Scheme Shareholders making Maximum Scrip
Elections; and
E is the number of the Scheme Shareholder's Scheme
Shares.
The principle of this clause 5.4 is that, subject to the effects of
rounding, TABCORP will not be obliged under the Ordinary Scheme to
issue a number of TABCORP Shares in total greater than the Scrip
Consideration Cap.
5.5 CENTREBET PAYMENT AND CENTREBET NOTE
(a) (CENTREBET PAYMENT) If:
(i) a Centrebet Sale Agreement is entered into by
Jupiters and its relevant Related Entities, and the
Centrebet Sale Completion occurs, on or before 31
October 2003; and
(ii) either:
(A) the Centrebet Tax Ruling Event has not
occurred on or before 30 September 2003; or
(B) the Australian Taxation Office has provided
a firm indication to Jupiters, any of its
Related Entities or any of their respective
directors, officers, employees, advisers or
agents that the Commissioner of Taxation
will not grant either or both of the
Centrebet Class Ruling and the Centrebet
Private Ruling,
TABCORP Acquirer will make the Centrebet Payments in
accordance with clause 5.1(c)(i) and otherwise in accordance
with the Ordinary Scheme.
(b) (CENTREBET NOTE) If:
(i) a Centrebet Sale Agreement is entered into by
Jupiters and its relevant Related Entities on or
before 31 October 2003, but the Centrebet Sale
Completion does not occur on or before that date; or
(ii) a Centrebet Sale Agreement has not been entered into
by Jupiters and its relevant Related Entities on or
before 31 October 2003,
TABCORP Issuer will issue the Centrebet Notes in accordance
with clause 5.1(c)(ii) and otherwise in accordance with the
Ordinary Scheme.
5.6 INELIGIBLE OVERSEAS SHAREHOLDERS
(a) TABCORP will be under no obligation under the Ordinary Scheme
to issue, and will not issue, any TABCORP Shares to an
Ineligible Overseas Shareholder, and instead:
(i) the TABCORP Shares which would otherwise be required
to be issued to the Ineligible Overseas Shareholder
under the Ordinary Scheme will be issued to the Sale
Agent;
(ii) TABCORP will procure that, as soon as reasonably
practicable (and in any event not more than 15
Business Days after the Implementation Date), the
Sale Agent sells on the stock market conducted by ASX
all of the TABCORP Shares issued to
Page 13
Scheme of Arrangement
the Sale Agent pursuant to clause 5.6(a)(i) in such
manner, at such price and on such other terms as the
Sale Agent determines in good faith (and at the risk
of the Ineligible Overseas Shareholder), and remits
to TABCORP Acquirer the proceeds of sale (after
deduction of any applicable brokerage and other
selling costs, taxes and charges) (the PROCEEDS); and
(iii) TABCORP Acquirer will pay to the Ineligible Overseas
Shareholder such fraction of the Proceeds as is equal
to the number of TABCORP Shares which would have been
issued to the Ineligible Overseas Shareholder but for
the application of this clause 5.6(a), divided by the
total number of TABCORP Shares issued to the Sale
Agent under this clause 5.6(a) in respect of all
Ineligible Overseas Shareholders, promptly after the
last sale of TABCORP Shares by the Sale Agent,
in full satisfaction of TABCORP's obligations to the
Ineligible Overseas Shareholder under the Ordinary Scheme in
respect of the Scrip Consideration.
(b) TABCORP Issuer will be under no obligation under the Ordinary
Scheme to issue, and will not issue, any Centrebet Notes to an
Ineligible Overseas Shareholder, and instead:
(i) the Centrebet Notes which would otherwise be required
to be issued to the Ineligible Overseas Shareholder
under the Ordinary Scheme will be issued to the
Ineligible Note Trustee; and
(ii) TABCORP Issuer will procure that the Ineligible Note
Trustee holds the Centrebet Notes issued to the
Ineligible Note Trustee pursuant to clause 5.6(b)(i)
in accordance with, and makes the payments in respect
of the Centrebet Notes which would otherwise have
been issued to the Ineligible Overseas Shareholder
but for the application of this clause 5.6(b) that
are required by, the Ineligible Note Deed,
in full satisfaction of TABCORP Issuer's obligations to the
Ineligible Overseas Shareholder under the Ordinary Scheme in
respect of the Centrebet Notes.
5.7 FRACTIONAL ENTITLEMENTS
If a fractional entitlement to a TABCORP Share arises from the
calculation of the total Scrip Consideration in respect of a Scheme
Shareholder, then any such fractional entitlement:
(a) of less than 0.5 will be rounded down to the nearest whole
number of TABCORP Shares; and
(b) of 0.5 or more will be rounded up to the nearest whole number
of TABCORP Shares.
5.8 SHAREHOLDING SPLITTING OR DIVISION
If TABCORP is of the opinion that two or more Scheme Shareholders, each
of whom holds a number of Scheme Shares which results in rounding in
accordance with clause 5.3, 5.4 or 5.7, have, before the Record Date,
been party to shareholding splitting or division in an attempt to
obtain unfair advantage by reference to such rounding, TABCORP may give
notice to those Scheme Shareholders:
(a) setting out the names and Registered Addresses of all of them;
(b) stating that opinion; and
Page 14
Scheme of Arrangement
(c) attributing to one of them specifically identified in the
notice the Scheme Shares held by all of them,
and, after the notice has been so given, the Scheme Shareholder
specifically identified in the notice will, for the purposes of the
other provisions of this clause 5, be taken to hold all those Scheme
Shares and each of the other Scheme Shareholders whose names and
Registered Addresses are set out in the notice will, for the purposes
of the other provisions of this clause 5, be taken to hold no Scheme
Shares. Each of TABCORP, TABCORP Acquirer and TABCORP Issuer, in
complying with the other provisions of this clause 5 relating to it in
respect of the Scheme Shareholder specifically identified in the notice
as the deemed holder of all the specified Scheme Shares, will be taken
to have satisfied and discharged its obligations to the other Scheme
Shareholders named in the notice under the terms of the Ordinary
Scheme.
6. PROVISION OF ORDINARY SCHEME CONSIDERATION
6.1 PAYMENT OF CASH AMOUNTS
The obligations of:
(a) TABCORP Acquirer to pay the Cash Consideration;
(b) TABCORP Acquirer to make the Centrebet Payments;
(c) TABCORP Acquirer to make any payment pursuant to clause
5.6(a);
(d) Jupiters to pay the Special Dividend; and
(e) Jupiters to pay the Centrebet Dividend,
will be satisfied by TABCORP Acquirer or Jupiters (as the case may be)
within five Business Days after the Implementation Date (or, in the
case of clause 6.1(c), within such later time allowed by clause
5.6(a)(iii)) either, in relation to each Scheme Shareholder:
(f) dispatching, or procuring the dispatch of, a cheque to the
Scheme Shareholder by pre-paid post to their Registered
Address (as at the Record Date), such cheque being drawn in
the name of the Scheme Shareholder; or
(g) making a deposit in an account with any ADI (as defined in the
Banking Act 1959 (Cth)) in Australia notified by the Scheme
Shareholder to Jupiters and recorded in or for the purposes of
the Jupiters Share Register at the Record Date,
for the relevant amount, with that amount being denominated in
Australian dollars.
6.2 PROVISION OF SCRIP CONSIDERATION
(a) The TABCORP Shares to be issued pursuant to the Ordinary
Scheme will be validly issued and fully paid and will rank
pari passu in all respects with all other TABCORP Shares then
on issue (other than in respect of any dividend already
declared and not yet paid by TABCORP, where the record date
for entitlements to that dividend has passed).
(b) The obligation of TABCORP to issue TABCORP Shares to an
Eligible Scheme Shareholder entitled to be issued TABCORP
Shares under the Ordinary Scheme will be satisfied by TABCORP:
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Scheme of Arrangement
(i) on the Implementation Date, causing the name and
Registered Address (as at the Record Date) of that
Eligible Scheme Shareholder to be entered in the
TABCORP Share Register as the holder of the TABCORP
Shares issued to that Eligible Scheme Shareholder;
and
(ii) within five Business Days after the Implementation
Date, procuring the dispatch to that Eligible Scheme
Shareholder, by pre-paid post to their Registered
Address (as at the Record Date), of an uncertificated
holding statement in the name of that Eligible Scheme
Shareholder representing the number of TABCORP Shares
issued to that Eligible Scheme Shareholder.
(c) Each Scheme Shareholder to whom TABCORP Shares are to be
issued pursuant to the Ordinary Scheme agrees:
(i) to become a member of TABCORP for the purposes of
section 231 of the Corporations Act;
(ii) to have their name and address entered in the TABCORP
Share Register; and
(iii) to be bound by the constitution of TABCORP as in
force from time to time in respect of the TABCORP
Shares.
(d) Except for a Scheme Shareholder's tax file number, any binding
instruction or notification between a Scheme Shareholder and
Jupiters relating to Scheme Shares at the Record Date
(including, without limitation, any instructions relating to
payment of dividends or to communications from Jupiters) will
from the Record Date be deemed to be a similarly binding
instruction or notification to, and accepted by, TABCORP in
respect of the TABCORP Shares issued to the Scheme Shareholder
until that instruction or notification is revoked or amended
in writing addressed to TABCORP at the TABCORP Share Registry.
(e) Each Scheme Shareholder, without the need for any further act,
irrevocably appoints TABCORP and each of its directors and
officers, jointly and severally, as that Scheme Shareholder's
attorney and agent for the purpose of executing any form of
application required for TABCORP Shares to be issued to that
Scheme Shareholder pursuant to the Ordinary Scheme.
6.3 PROVISION OF CENTREBET NOTES
(a) The obligations of TABCORP Issuer to issue Centrebet Notes to
an Eligible Scheme Shareholder under the Ordinary Scheme will
be satisfied by TABCORP Issuer:
(i) on the Implementation Date, causing the name and
Registered Address (as at the Record Date) of that
Eligible Scheme Shareholder to be entered in the
register for the Centrebet Notes as the holder of the
Centrebet Notes issued to that Eligible Scheme
Shareholder; and
(ii) within five Business Days after the Implementation
Date, procuring the dispatch to that Eligible Scheme
Shareholder, by pre-paid post to their Registered
Address (as at the Record Date), of a certificate in
the name of that Eligible Scheme Shareholder
representing the number of Centrebet Notes issued to
that Eligible Scheme Shareholder.
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Scheme of Arrangement
(b) Each Scheme Shareholder to whom Centrebet Notes are to be
issued pursuant to the Ordinary Scheme agrees:
(i) to have their name and address entered in the
register for the Centrebet Notes; and
(ii) to be bound by the terms and conditions of issue of
the Centrebet Notes (including the Centrebet Note
Deed).
(c) Each Scheme Shareholder, without the need for any further act,
irrevocably appoints TABCORP Issuer and each of its directors
and officers, jointly and severally, as that Scheme
Shareholder's attorney and agent for the purpose of executing
any form of application required for Centrebet Notes to be
issued to that Scheme Shareholder pursuant to the Ordinary
Scheme.
6.4 JOINT HOLDERS
In the case of Scheme Shares held in joint names:
(a) any cheque required to be paid to Scheme Shareholders will be
payable to the joint holders;
(b) any uncertificated holding statements for TABCORP Shares to be
issued to Scheme Shareholders will be issued in the names of
the joint holders; and
(c) any certificates for Centrebet Notes to be issued to Scheme
Shareholders will be issued in the names of the joint holders,
and be forwarded to the holder whose name appears first in the Jupiters
Share Register at the Record Date.
7. TRADING OF TABCORP SHARES
TABCORP will use its best endeavours to procure that the TABCORP Shares
to be issued pursuant to the Ordinary Scheme will be quoted on the
stock market conducted by ASX with effect as soon as practicable after
the Effective Date, taking into account the requirements of ASX in
connection with the making of Elections, initially on a deferred
settlement basis and thereafter on an ordinary settlement basis.
8. DEALINGS IN JUPITERS SHARES
8.1 DEALINGS PRIOR TO RECORD DATE
(a) For the purpose of establishing the persons who are Scheme
Shareholders, dealings in Jupiters Shares will only be
recognised if:
(i) in the case of dealings of the type to be effected
using CHESS, the transferee is registered in the
Jupiters Share Register as the holder of the relevant
Jupiters Shares by the Record Date; and
(ii) in all other cases, registrable transfers or
transmission applications in respect of those
dealings are received at the Jupiters Share Registry
by the Record Date.
(b) Jupiters will register registrable transfers or transmission
applications of the kind referred to in clause 8.1(a)(ii) by
the Record Date. Jupiters will not accept for registration,
nor
Page 17
Scheme of Arrangement
recognise for any purpose, any transfer or transmission
application in respect of Jupiters Shares received after the
Record Date (other than the transfers contemplated by clause
4.2).
8.2 DEALINGS AFTER RECORD DATE
(a) For the purpose of determining entitlements to the Ordinary
Scheme Consideration, Jupiters will, until the Ordinary Scheme
Consideration has been provided in accordance with the
Ordinary Scheme, maintain or procure the maintenance of the
Jupiters Share Register in accordance with this clause 8, and
the Jupiters Share Register in this form will solely determine
entitlements to the Ordinary Scheme Consideration. Each entry
on the Jupiters Share Register at the Record Date relating to
Scheme Shares will cease to have any effect other than as
evidence of the entitlement to the Ordinary Scheme
Consideration, to the Special Dividend and to the Centrebet
Dividend in respect of those Scheme Shares.
(b) From the Record Date, all certificates and holding statements
for Scheme Shares existing as at the Record Date will cease to
have effect as documents of title in respect of those Scheme
Shares, other than for the purpose of registering dealings in
Jupiters Shares in accordance with clause 8.1.
8.3 PROVISION OF INFORMATION
On or before 9.00am on the Implementation Date, Jupiters must give to
TABCORP details of the names, Registered Addresses and holdings of
Scheme Shares of every Scheme Shareholder as shown in the Jupiters
Share Register at the Record Date, such details to be provided in such
form as TABCORP may reasonably require.
9. GENERAL SCHEME PROVISIONS
9.1 ORDINARY SCHEME ALTERATIONS AND CONDITIONS
If the Court proposes to approve the Ordinary Scheme subject to any
alterations or conditions, Jupiters may, by its counsel or solicitors
but subject to the prior approval of TABCORP, consent on behalf of all
persons concerned to those alterations or conditions.
9.2 COVENANTS BY SCHEME SHAREHOLDERS
Each Scheme Shareholder:
(a) agrees to the transfer of their Scheme Shares to TABCORP
Acquirer, in accordance with the Ordinary Scheme;
(b) without the need for any further act, irrevocably appoints
Jupiters and each of the directors and officers of Jupiters,
jointly and severally, as the Scheme Shareholder's attorney
and agent for the purpose of executing any document or doing
any other act necessary to give full effect to the Ordinary
Scheme and the transactions contemplated by it (including,
without limitation, the provision of a proper instrument of
transfer of the Scheme Shareholder's Scheme Shares for the
purposes of section 1071B of the Corporations Act (which may
be a master transfer of all or part of the Scheme Shares)) and
the communication of the Scheme Shareholder's instructions and
notifications under clause 6.2(d); and
Page 18
Scheme of Arrangement
(c) consents to Jupiters doing all things and executing all deeds,
instruments, transfers and other documents as may be necessary
or desirable to give full effect to the Ordinary Scheme and
the transactions contemplated by it.
9.3 STATUS OF SCHEME SHARES
(a) Each Scheme Shareholder is deemed to have warranted to TABCORP
and to TABCORP Acquirer that all their Scheme Shares
(including any rights and entitlements attaching to those
shares) transferred to TABCORP Acquirer under the Ordinary
Scheme will, as at the date of the transfer, be fully paid and
free from all mortgages, charges, liens, encumbrances,
pledges, security interests and other interests of third
parties of any kind, whether legal or otherwise, and that they
have full power and capacity to sell and to transfer their
Scheme Shares (including any rights and entitlements attaching
to those shares) to TABCORP Acquirer under the Ordinary
Scheme.
(b) The Scheme Shares transferred to TABCORP Acquirer under the
Ordinary Scheme will be transferred free from all mortgages,
charges, liens, encumbrances, pledges, security interests and
other interests of third parties of any kind, whether legal or
otherwise, that will bind TABCORP Acquirer.
(c) Pending registration by Jupiters of the name and address of
TABCORP Acquirer in the Jupiters Share Register as the holder
of the Scheme Shares:
(i) TABCORP Acquirer will be beneficially entitled to the
Scheme Shares transferred to it under the Ordinary
Scheme; and
(ii) each Scheme Shareholder irrevocably appoints TABCORP
Acquirer as its sole proxy and, where appropriate,
its corporate representative to attend shareholders'
meetings of Jupiters, exercise the votes attached to
the Scheme Shares registered in the name of the
Scheme Shareholder and sign any shareholders'
resolution of Jupiters, and the Scheme Shareholder
may not itself attend or vote at any such meetings or
sign any such resolutions, whether in person, by
proxy or by corporate representative.
9.4 EFFECT OF ORDINARY SCHEME
The Ordinary Scheme binds Jupiters and all Jupiters Shareholders from
time to time and, to the extent of any inconsistency, overrides the
constitution of Jupiters.
9.5 NOTICES
Where a notice, transfer, transmission application, direction or other
communication referred to in the Ordinary Scheme is sent by post to
Jupiters, it will not be deemed to be received in the ordinary course
of post or on a date other than the date (if any) on which it is
actually received at Jupiters' registered office or at the Jupiters
Share Registry.
9.6 FURTHER ASSURANCES
Jupiters will do all things and execute all deeds, instruments,
transfers and other documents as may be necessary or desirable to give
full effect to the Ordinary Scheme and the transactions contemplated by
it.
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Scheme of Arrangement
9.7 COSTS AND STAMP DUTY
Jupiters will pay the costs of the Ordinary Scheme, except that TABCORP
Acquirer will pay any stamp duty payable on the transfer by Scheme
Shareholders of the Scheme Shares to TABCORP Acquirer.
9.8 PROPER LAW
The proper law of the Ordinary Scheme is the law of Queensland.
Page 20
ANNEXURE B Scheme of Arrangement
PURSUANT TO SECTION 411 OF THE CORPORATIONS ACT 2001 (Cth)
BETWEEN
JUPITERS LIMITED (ABN 78 010 741 045) of 17 Victoria Avenue,
Broadbeach, Queensland, Australia
AND
THE HOLDERS OF FULLY PAID RESET PREFERENCE SHARES IN JUPITERS
LIMITED (other than any person holding fully paid reset
preference shares in Jupiters Limited on behalf of, or for the
benefit of, TABCORP or any of its Related Entities)
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this document, the following definitions apply unless the context
requires otherwise.
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited (ABN 98 008 624 691).
ASX LISTING RULES means the official listing rules of ASX.
BUSINESS DAY has the meaning given in the ASX Listing Rules.
CHESS means the Clearing House Electronic Subregister System for the
electronic transfer of securities, operated by ASX Settlement and
Transfer Corporation Pty Limited (ABN 49 008 504 532).
CONDITIONS PRECEDENT means the conditions precedent set out in clause
3.1.
CORPORATIONS ACT means the Corporations Act 2001 (Cth).
COURT means the Supreme Court of Queensland.
DEED POLL means the Deed Poll dated [*] 2003 executed by, amongst
others, TABCORP and TABCORP Acquirer, pursuant to which each of TABCORP
and TABCORP Acquirer has, amongst other things, covenanted in favour of
Scheme RPS Holders to perform the obligations contemplated of it under
the RPS Scheme.
EFFECTIVE DATE means the date on which the Scheme Order comes into
effect pursuant to section 411(10) of the Corporations Act.
EXCLUDED RPS means an RPS held by any person on behalf of, or for the
benefit of, TABCORP or any of its Related Entities[, and any RPS in
respect of which a Conversion Notice (as defined in the
Page 1
Scheme of Arrangement
RPS Terms) has been provided to Jupiters, and not withdrawn, in
accordance with the RPS Terms and where the Conversion Date (as defined
in the RPS Terms) in respect of that RPS is on or before the
Implementation Date].
IMPLEMENTATION DATE means the third Business Day after the Record Date.
JUPITERS means Jupiters Limited (ABN 78 010 741 045).
JUPITERS BOARD means the board of directors of Jupiters.
JUPITERS SHARE REGISTER means the register of members of Jupiters
maintained pursuant to the Corporations Act.
JUPITERS SHARE REGISTRY means Computershare Investor Services Pty
Limited (ABN 48 078 279 277) of Level 12, 565 Bourke Street, Melbourne,
Victoria.
MERGER IMPLEMENTATION AGREEMENT means the Merger Implementation
Agreement dated [*] 2003 between TABCORP and Jupiters.
ORDINARY SCHEME means the scheme of arrangement under Part 5.1 of the
Corporations Act between Jupiters and the holders of fully paid
ordinary shares in the capital of Jupiters (other than any person
holding fully paid ordinary shares in Jupiters on behalf of, or for the
benefit of, TABCORP or any of its Related Entities).
RECORD DATE means 5.00pm on the fifth Business Day after the Effective
Date.
REGISTERED ADDRESS means, in relation to an RPS Holder, the address
shown in the Jupiters Share Register.
RELATED ENTITY means, in relation to a person, any entity which is
related to that person within the meaning of section 50 of the
Corporations Act or which is an economic entity (as defined in any
approved Australian accounting standard) that is controlled by that
person.
RPS means a fully paid reset preference share in the capital of
Jupiters issued on the RPS Terms.
RPS HOLDER means each person registered in the Jupiters Share Register
as the holder of RPS.
RPS SCHEME means this scheme of arrangement, subject to any alterations
or conditions made or required by the Court under section 411(6) of the
Corporations Act.
RPS SCHEME CONSIDERATION means the consideration to be provided to
Scheme RPS Holders for the transfer to TABCORP Acquirer of their Scheme
RPS, ascertained in accordance with clause 5.
RPS TERMS means the Terms and Conditions of the RPS, as set out in
appendix A to the prospectus dated 28 February 2002 issued by Jupiters,
as those Terms and Conditions may be amended by the Jupiters Board.
SCHEME MEETING means the meeting ordered by the Court to be convened
pursuant to section 411(1) of the Corporations Act in relation to the
RPS Scheme.
SCHEME ORDER means the order of the Court made for the purposes of
section 411(4)(b) of the Corporations Act in relation to the RPS
Scheme.
SCHEME RPS means the RPS on issue at the Record Date (including any RPS
in respect of which a conversion notice has been given to Jupiters
under clause 4 of the RPS Terms and has not been withdrawn, and in
respect of which the conversion date under the RPS Terms has not
occurred) other than the Excluded RPS.
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Scheme of Arrangement
SCHEME RPS HOLDER means each person registered in the Jupiters Share
Register as the holder of Scheme RPS as at the Record Date.
SECOND COURT DATE means the first day on which an application made to
the Court for the Scheme Order is heard or, if the application is
adjourned for any reason, the first day on which the adjourned
application is heard.
TABCORP means TABCORP Holdings Limited (ABN 66 063 780 709).
TABCORP ACQUIRER means [*TABCORP ACQUIRER] (ABN [*]), a wholly-owned
Related Entity of TABCORP.
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, government agency or other entity
includes any of them.
(e) A reference to a clause is a reference to a clause of this
document.
(f) A reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns.
(g) A reference to an agreement or document (including, without
limitation, a reference to this document) is to the agreement
or document as amended, varied, supplemented, novated or
replaced, except to the extent prohibited by this document or
that other agreement or document.
(h) A reference to any legislation or to a provision of any
legislation includes a modification or re-enactment of it, any
legislative provision substituted for it and all regulations
and statutory instruments issued under it.
(i) Words and phrases not specifically defined in this document
have the same meanings (if any) given to them in the
Corporations Act.
(j) A reference to time is a reference to time in Brisbane,
Australia.
(k) A reference to $ is to the lawful currency of Australia.
2. PRELIMINARY
2.1 JUPITERS
(a) Jupiters is a public company incorporated in Australia and
registered in Queensland and is a company limited by shares.
Its registered office is at Level 9, Niecon Tower, 17 Victoria
Avenue, Broadbeach, Queensland.
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Scheme of Arrangement
(b) Jupiters has been admitted to the official list of ASX and RPS
have been granted official quotation on the stock market
conducted by ASX.
(c) As at [*] 2003, [*] RPS were on issue.
2.2 TABCORP
TABCORP is a public company incorporated in Australia and registered in
Victoria and is a company limited by shares. Its registered office is
at 5 Bowen Crescent, Melbourne, Victoria.
2.3 TABCORP ACQUIRER
TABCORP Acquirer is a [public/proprietary] company incorporated in
Australia and registered in [Victoria] and is a company limited by
shares. Its registered office is at [5 Bowen Crescent, Melbourne,
Victoria].
2.4 SUMMARY OF THE RPS SCHEME
(a) If the RPS Scheme becomes effective (by virtue of the Scheme
Order coming into effect in accordance with section 411(10) of
the Corporations Act) then:
(i) all the Scheme RPS will be transferred to TABCORP
Acquirer, and TABCORP Acquirer will provide the RPS
Scheme Consideration to Scheme RPS Holders in
accordance with the provisions of the RPS Scheme; and
(ii) Jupiters will enter the name and address of TABCORP
Acquirer in the Jupiters Share Register as the holder
of the Scheme RPS.
(b) TABCORP has executed the Deed Poll in favour of the Scheme RPS
Holders, pursuant to which it has covenanted to perform the
obligations contemplated of it under the RPS Scheme, and to
procure that TABCORP Acquirer performs the obligations
contemplated of TABCORP Acquirer under the RPS Scheme.
(c) TABCORP Acquirer has executed the Deed Poll in favour of the
Scheme RPS Holders, pursuant to which it has covenanted to
perform the obligations contemplated of it under the RPS
Scheme.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS
The RPS Scheme is conditional on each of the following conditions
precedent:
(a) as at 8.00am on the Second Court Date, all of the conditions
set out in clause 3.1 of the Merger Implementation Agreement
have been satisfied or waived in accordance with the terms of
the Merger Implementation Agreement;
(b) as at 8.00am on the Second Court Date, the Merger
Implementation Agreement has not been terminated;
(c) the RPS Scheme has been approved by the requisite majorities
of RPS Holders in accordance with section 411(4)(a) of the
Corporations Act at the Scheme Meeting;
Page 4
Scheme of Arrangement
(d) the Court has approved the Ordinary Scheme, with or without
modification, pursuant to section 411(4)(b) of the
Corporations Act;
(e) the Court has approved the RPS Scheme, with or without
modification, pursuant to section 411(4)(b) of the
Corporations Act;
(f) such other conditions made or required by the Court under
section 411(6) of the Corporations Act in relation to the RPS
Scheme as are acceptable to TABCORP and Jupiters have been
satisfied,
and the RPS Scheme will be of no force or effect unless and until the
Conditions Precedent are satisfied.
3.2 CERTIFICATE
At the hearing by the Court of the application for the Scheme Order,
TABCORP and Jupiters will each provide to the Court a certificate
confirming whether or not all of the conditions set out in clause 3.1
of the Merger Implementation Agreement have been satisfied or waived in
accordance with the terms of the Merger Implementation Agreement.
3.3 TERMINATION OF MERGER IMPLEMENTATION AGREEMENT
In the event that the Merger Implementation Agreement is terminated,
each of Jupiters, TABCORP and TABCORP Acquirer is released from:
(a) any further obligation to take steps to implement the RPS
Scheme; and
(b) any liability with respect to the RPS Scheme.
4. IMPLEMENTATION OF THE RPS SCHEME
4.1 LODGEMENT
Jupiters must lodge with ASIC an office copy of the Scheme Order
promptly after, and in any event by 5.00pm on the first Business Day
after the date on which, the Court makes that order.
4.2 TRANSFER OF SCHEME RPS
On the Implementation Date, all of the Scheme RPS (together with all
rights and entitlements attaching to the Scheme RPS) will be
transferred to TABCORP Acquirer, without the need for any further act
by any Scheme RPS Holder, by Jupiters procuring the delivery of a
transfer or transfers in respect of all of the Scheme RPS to ASX
Settlement and Transfer Corporation Pty Limited by a broker nominated
in writing by TABCORP to effect a valid transfer of the Scheme RPS to
TABCORP Acquirer under section 1074D of the Corporations Act or, if
that procedure is not available for any reason, by:
(a) Jupiters delivering to TABCORP duly completed and executed
share transfer forms (which may be a master transfer of all or
part of the Scheme RPS) to transfer all of the Scheme RPS to
TABCORP Acquirer;
(b) TABCORP Acquirer executing and delivering the share transfer
forms to Jupiters; and
(c) Jupiters entering the name and address of TABCORP Acquirer in
the Jupiters Share Register as the holder of all of the Scheme
RPS.
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Scheme of Arrangement
4.3 PAYMENT OF RPS SCHEME CONSIDERATION
In consideration for the transfer to TABCORP Acquirer of each Scheme
RPS on the Implementation Date, TABCORP Acquirer will pay to each
Scheme RPS Holder the RPS Scheme Consideration.
5. RPS SCHEME CONSIDERATION
5.1 CALCULATION OF RPS SCHEME CONSIDERATION
The RPS Scheme Consideration in respect of each Scheme RPS comprises:
(a) a cash amount of $105.26; plus
(b) an additional cash amount equal to the dividend accrued on
that Scheme RPS under clause 2.1 of the RPS Terms, calculated
on the basis of the number of days from (and including) the
immediately preceding Dividend Payment Date under the RPS
Terms to (but excluding) the Implementation Date,
provided that if the Implementation Date occurs:
(c) after the record date for payment of the dividend accrued on
the Scheme RPS under clause 2.1 of the RPS Terms from (and
including) the immediately preceding Dividend Payment Date
under the RPS Terms; and
(d) before the Dividend Payment Date under the RPS Terms for that
accrued dividend,
then TABCORP Acquirer will have no obligation to pay to the Scheme RPS
Holder the cash amount referred to in paragraph (b).
5.2 PAYMENT OF RPS SCHEME CONSIDERATION
(a) The obligation of TABCORP Acquirer to pay the RPS Scheme
Consideration will be satisfied by TABCORP Acquirer within
five Business Days after the Implementation Date either, in
relation to each Scheme RPS Holder:
(i) dispatching, or procuring the dispatch of, a cheque
to the Scheme RPS Holder by pre-paid post to their
Registered Address (as at the Record Date), such
cheque being drawn in the name of the Scheme RPS
Holder; or
(ii) making a deposit in an account with any ADI (as
defined in the Banking Act 1959 (Cth)) in Australia
notified by the Scheme RPS Holder to Jupiters and
recorded in or for the purposes of the Jupiters Share
Register at the Record Date,
for the relevant amount, with that amount being denominated in
Australian dollars.
(b) In the case of Scheme RPS held in joint names any cheque
required to be paid to Scheme RPS Holders will be payable to
the joint holders and be forwarded to the holder whose name
appears first in the Jupiters Share Register at the Record
Date.
Page 6
Scheme of Arrangement
6. DEALINGS IN RPS
6.1 DEALINGS PRIOR TO RECORD DATE
(a) For the purpose of establishing the persons who are Scheme RPS
Holders, dealings in RPS will only be recognised if:
(i) in the case of dealings of the type to be effected
using CHESS, the transferee is registered in the
Jupiters Share Register as the holder of the relevant
RPS by the Record Date; and
(ii) in all other cases, registrable transfers or
transmission applications in respect of those
dealings are received at the Jupiters Share Registry
by the Record Date.
(b) Jupiters will register registrable transfers or transmission
applications of the kind referred to in clause 6.1(a)(ii) by
the Record Date. Jupiters will not accept for registration,
nor recognise for any purpose, any transfer or transmission
application in respect of RPS received after the Record Date
(other than the transfers contemplated by clause 4.2).
6.2 DEALINGS AFTER RECORD DATE
(a) For the purpose of determining entitlements to the RPS Scheme
Consideration, Jupiters will, until the RPS Scheme
Consideration has been provided in accordance with the RPS
Scheme, maintain or procure the maintenance of the Jupiters
Share Register in accordance with this clause 6, and the
Jupiters Share Register in this form will solely determine
entitlements to the RPS Scheme Consideration. Each entry on
the Jupiters Share Register at the Record Date relating to
Scheme RPS will cease to have any effect other than as
evidence of the entitlement to the RPS Scheme Consideration in
respect of those Scheme RPS.
(b) From the Record Date, all certificates and holding statements
for Scheme RPS existing at the Record Date will cease to have
effect as documents of title in respect of those Scheme RPS,
other than for the purpose of registering dealings in RPS in
accordance with clause 6.1.
6.3 PROVISION OF INFORMATION
On or before 9.00am on the Implementation Date, Jupiters must give to
TABCORP details of the names, Registered Addresses and holdings of
Scheme RPS of every Scheme RPS Holder as shown in the Jupiters Share
Register at the Record Date, such details to be provided in such form
as TABCORP may reasonably require.
7. GENERAL SCHEME PROVISIONS
7.1 RPS SCHEME ALTERATIONS AND CONDITIONS
If the Court proposes to approve the RPS Scheme subject to any
alterations or conditions, Jupiters may, by its counsel or solicitors
but subject to the prior approval of TABCORP, consent on behalf of all
persons concerned to those alterations or conditions.
Page 7
Scheme of Arrangement
7.2 COVENANTS BY SCHEME RPS HOLDERS
Each Scheme RPS Holder:
(a) agrees to the transfer of their Scheme RPS to TABCORP
Acquirer, in accordance with the RPS Scheme;
(b) without the need for any further act, irrevocably appoints
Jupiters and each of the directors and officers of Jupiters,
jointly and severally, as the Scheme RPS Holder's attorney and
agent for the purpose of executing any document or doing any
other act necessary to give full effect to the RPS Scheme and
the transactions contemplated by it (including, without
limitation, the provision of a proper instrument of transfer
of the Scheme RPS Holder's Scheme RPS for the purposes of
section 1071B of the Corporations Act (which may be a master
transfer of all or part of the Scheme RPS)); and
(c) consents to Jupiters doing all things and executing all deeds,
instruments, transfers and other documents as may be necessary
or desirable to give full effect to the RPS Scheme and the
transactions contemplated by it.
7.3 STATUS OF SCHEME RPS
(a) Each Scheme RPS Holder is deemed to have warranted to TABCORP
and to TABCORP Acquirer that all their Scheme RPS (including
any rights and entitlements attaching to those shares)
transferred to TABCORP Acquirer under the RPS Scheme will, as
at the date of the transfer, be fully paid and free from all
mortgages, charges, liens, encumbrances, pledges, security
interests and other interests of third parties of any kind,
whether legal or otherwise, and that they have full power and
capacity to sell and to transfer their Scheme RPS (including
any rights and entitlements attaching to those shares) to
TABCORP Acquirer under the RPS Scheme.
(b) The Scheme RPS transferred to TABCORP Acquirer under the RPS
Scheme will be transferred free from all mortgages, charges,
liens, encumbrances, pledges, security interests and other
interests of third parties of any kind, whether legal or
otherwise, that will bind TABCORP Acquirer.
(c) Pending registration by Jupiters of the name and address of
TABCORP Acquirer in the Jupiters Share Register as the holder
of the Scheme RPS:
(i) TABCORP Acquirer will be beneficially entitled to the
Scheme RPS transferred to it under the RPS Scheme;
and
(ii) each Scheme RPS Holder irrevocably appoints TABCORP
Acquirer as its sole proxy and, where appropriate,
its corporate representative to attend shareholders'
meetings of Jupiters, exercise the votes attached to
the Scheme RPS registered in the name of the Scheme
RPS Holder and sign any shareholders' resolution of
Jupiters, and the Scheme RPS Holder may not itself
attend or vote at any such meetings or sign any such
resolutions, whether in person, by proxy or by
corporate representative.
Page 8
Scheme of Arrangement
7.4 EFFECT OF RPS SCHEME
The RPS Scheme binds Jupiters and all RPS Holders from time to time
and, to the extent of any inconsistency, overrides the constitution of
Jupiters and the RPS Terms.
7.5 NOTICES
Where a notice, transfer, transmission application, direction or other
communication referred to in the RPS Scheme is sent by post to
Jupiters, it will not be deemed to be received in the ordinary course
of post or on a date other than the date (if any) on which it is
actually received at Jupiters' registered office or at the Jupiters
Share Registry.
7.6 FURTHER ASSURANCES
Jupiters will do all things and execute all deeds, instruments,
transfers and other documents as may be necessary or desirable to give
full effect to the RPS Scheme and the transactions contemplated by it.
7.7 COSTS AND STAMP DUTY
Jupiters will pay the costs of the RPS Scheme, except that TABCORP
Acquirer will pay any stamp duty payable on the transfer by Scheme RPS
Holders of the Scheme RPS to TABCORP Acquirer.
7.8 PROPER LAW
The proper law of the RPS Scheme is the law of Queensland.
Page 9
ANNEXURE C Scheme of Arrangement
PURSUANT TO SECTION 411 OF THE CORPORATIONS ACT 2001 (Cth)
BETWEEN
JUPITERS LIMITED (ABN 78 010 741 045) of 17 Victoria Avenue,
Broadbeach, Queensland, Australia
AND
THE HOLDERS OF OPTIONS TO SUBSCRIBE FOR FULLY PAID ORDINARY
SHARES IN JUPITERS LIMITED under the Jupiters Limited
Executive Option Plan
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this document, the following definitions apply unless the context
requires otherwise.
ASIC means the Australian Securities and Investments Commission.
ASX means Australian Stock Exchange Limited (ABN 98 008 624 691).
ASX LISTING RULES means the official listing rules of ASX.
ASX WAIVER means a waiver of any requirement under ASX Listing Rule
6.23 to obtain the approval of holders of ordinary shares in Jupiters
for the cancellation of the Jupiters Options pursuant to the Option
Scheme.
BUSINESS DAY has the meaning given in the ASX Listing Rules.
CONDITIONS PRECEDENT means the conditions precedent set out in clause
3.1.
CORPORATIONS ACT means the Corporations Act 2001 (Cth).
COURT means the Supreme Court of Queensland.
DEED POLL means the Deed Poll dated [*] 2003 executed by, amongst
others, TABCORP and TABCORP Acquirer, pursuant to which each of TABCORP
and TABCORP Acquirer has, amongst other things, covenanted in favour of
Scheme Optionholders to perform the obligations contemplated of it
under the Option Scheme.
EFFECTIVE DATE means the date on which the Scheme Order comes into
effect pursuant to section 411(10) of the Corporations Act.
EXPIRY DATE means, in relation to any Jupiters Option, the date for
last exercise of that Jupiters Option under the terms of grant of that
Jupiters Option, as at 8.00am on the Second Court Date.
IMPLEMENTATION DATE means the third Business Day after the Record Date.
Page 1
Scheme of Arrangement
JUPITERS means Jupiters Limited (ABN 78 010 741 045).
JUPITERS BOARD means the board of directors of Jupiters.
JUPITERS OPTION means an option granted pursuant to the Jupiters Option
Plan to subscribe for Jupiters Shares.
JUPITERS OPTION PLAN means the Jupiters Limited Executive Option Plan
adopted by the Jupiters Board on or about 8 February 2001.
JUPITERS OPTION REGISTER means the register of holders of Jupiters
Options maintained in accordance with the Corporations Act.
JUPITERS OPTIONHOLDER means each person registered in the Jupiters
Option Register as the holder of Jupiters Options.
JUPITERS SHARE means a fully paid ordinary share in the capital of
Jupiters.
JUPITERS SHARE REGISTRY means Computershare Investor Services Pty
Limited (ABN 48 078 279 277) of Level 12, 565 Bourke Street, Melbourne,
Victoria.
MERGER IMPLEMENTATION AGREEMENT means the Merger Implementation
Agreement dated [*] 2003 between TABCORP and Jupiters.
OPTION SCHEME means this scheme of arrangement, subject to any
alterations or conditions made or required by the Court under section
411(6) of the Corporations Act.
OPTION SCHEME CONSIDERATION means the consideration to be provided to
Scheme Optionholders for the cancellation of the Scheme Options,
ascertained in accordance with clause 5.
ORDINARY SCHEME means the scheme of arrangement under Part 5.1 of the
Corporations Act between Jupiters and the holders of fully paid
ordinary shares in the capital of Jupiters (other than any person
holding fully paid ordinary shares in Jupiters on behalf of, or for the
benefit of, TABCORP or any of its Related Entities).
RECORD DATE means 5.00pm on the fifth Business Day after the Effective
Date.
REGISTERED ADDRESS means, in relation to a Jupiters Optionholder, the
address shown in the Jupiters Option Register.
RELATED ENTITY means, in relation to a person, any entity which is
related to that person within the meaning of section 50 of the
Corporations Act or which is an economic entity (as defined in any
approved Australian accounting standard) that is controlled by that
person.
SCHEME MEETING means the meeting ordered by the Court to be convened
pursuant to section 411(1) of the Corporations Act in relation to the
Option Scheme.
SCHEME OPTIONHOLDER means each person registered in the Jupiters Option
Register as the holder of Scheme Options as at the Record Date.
SCHEME OPTIONS means the Jupiters Options on issue at the Record Date
(whether or not they are exercisable at that time in accordance with
the terms of the Jupiters Option Plan).
SCHEME ORDER means the order of the Court made for the purposes of
section 411(4)(b) of the Corporations Act in relation to the Option
Scheme.
Page 2
Scheme of Arrangement
SECOND COURT DATE means the first day on which an application made to
the Court for the Scheme Order is heard or, if the application is
adjourned for any reason, the first day on which the adjourned
application is heard.
TABCORP means TABCORP Holdings Limited (ABN 66 063 780 709).
TABCORP ACQUIRER means [*TABCORP ACQUIRER] (ABN [*]), a wholly-owned
Related Entity of TABCORP.
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, government agency or other entity
includes any of them.
(e) A reference to a clause is a reference to a clause of this
document.
(f) A reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns.
(g) A reference to an agreement or document (including, without
limitation, a reference to this document) is to the agreement
or document as amended, varied, supplemented, novated or
replaced, except to the extent prohibited by this document or
that other agreement or document.
(h) A reference to any legislation or to a provision of any
legislation includes a modification or re-enactment of it, any
legislative provision substituted for it and all regulations
and statutory instruments issued under it.
(i) Words and phrases not specifically defined in this document
have the same meanings (if any) given to them in the
Corporations Act.
(j) A reference to time is a reference to time in Brisbane,
Australia.
(k) A reference to $ is to the lawful currency of Australia.
2. PRELIMINARY
2.1 JUPITERS
(a) Jupiters is a public company incorporated in Australia and
registered in Queensland and is a company limited by shares.
Its registered office is at Level 9, Niecon Tower, 17 Victoria
Avenue, Broadbeach, Queensland.
(b) As at [*] 2003, [*] Jupiters Options were on issue.
Page 3
Scheme of Arrangement
2.2 TABCORP
TABCORP is a public company incorporated in Australia and registered in
Victoria and is a company limited by shares. Its registered office is
at 5 Bowen Crescent, Melbourne, Victoria.
2.3 TABCORP ACQUIRER
TABCORP Acquirer is a [public/proprietary] company incorporated in
Australia and registered in [Victoria] and is a company limited by
shares. Its registered office is at 5 Bowen Crescent, Melbourne,
Victoria.
2.4 SUMMARY OF THE OPTION SCHEME
(a) If the Option Scheme becomes effective (by virtue of the
Scheme Order coming into effect in accordance with section
411(10) of the Corporations Act) then all the Scheme Options
will be cancelled, and TABCORP Acquirer will pay the Option
Scheme Consideration to Scheme Optionholders in accordance
with the provisions of the Option Scheme.
(b) TABCORP has executed the Deed Poll in favour of the Scheme
Optionholders, pursuant to which it has covenanted to perform
the obligations contemplated of it under the Option Scheme,
and to procure that TABCORP Acquirer performs the obligations
contemplated of TABCORP Acquirer under the Option Scheme.
(c) TABCORP Acquirer has executed the Deed Poll in favour of the
Scheme Optionholders, pursuant to which it has covenanted to
perform the obligations contemplated of it under the Option
Scheme.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS
The Option Scheme is conditional on each of the following conditions
precedent:
(a) as at 8.00am on the Second Court Date, all of the conditions
set out in clause 3.1 of the Merger Implementation Agreement
have been satisfied or waived in accordance with the terms of
the Merger Implementation Agreement;
(b) as at 8.00am on the Second Court Date, the Merger
Implementation Agreement has not been terminated;
(c) ASX has granted the ASX Waiver, or the holders of ordinary
shares in Jupiters have approved, in accordance with and for
the purposes of ASX Listing Rule 6.23.2, the cancellation of
the Jupiters Options pursuant to the Option Scheme;
(d) the Option Scheme has been approved by the requisite
majorities of Jupiters Optionholders in accordance with
section 411(4)(a) of the Corporations Act at the Scheme
Meeting;
(e) the Court has approved the Ordinary Scheme, with or without
modification, pursuant to section 411(4)(b) of the
Corporations Act;
(f) the Court has approved the Option Scheme, with or without
modification, pursuant to section 411(4)(b) of the
Corporations Act;
Page 4
Scheme of Arrangement
(g) such other conditions made or required by the Court under
section 411(6) of the Corporations Act in relation to the
Option Scheme as are acceptable to TABCORP and Jupiters have
been satisfied,
and the Option Scheme will be of no force or effect unless and until
the Conditions Precedent are satisfied.
3.2 CERTIFICATE
At the hearing by the Court of the application for the Scheme Order,
TABCORP and Jupiters will each provide to the Court a certificate
confirming whether or not all of the conditions set out in clause 3.1
of the Merger Implementation Agreement have been satisfied or waived in
accordance with the terms of the Merger Implementation Agreement.
3.3 TERMINATION OF MERGER IMPLEMENTATION AGREEMENT
In the event that the Merger Implementation Agreement is terminated,
each of Jupiters, TABCORP and TABCORP Acquirer is released from:
(a) any further obligation to take steps to implement the Option
Scheme; and
(b) any liability with respect to the Option Scheme.
4. IMPLEMENTATION OF THE OPTION SCHEME
4.1 LODGEMENT
Jupiters must lodge with ASIC an office copy of the Scheme Order
promptly after, and in any event by 5.00pm on the first Business Day
after the date on which, the Court makes that order.
4.2 CANCELLATION OF SCHEME OPTIONS
On the Implementation Date, all of the Scheme Options, and all rights
and entitlements attaching to the Scheme Options, will be cancelled
without the need for any further act by any Scheme Optionholder.
4.3 PAYMENT OF OPTION SCHEME CONSIDERATION
In consideration for the cancellation of the Scheme Options, TABCORP
Acquirer will pay to each Scheme Optionholder the Option Scheme
Consideration.
5. OPTION SCHEME CONSIDERATION
5.1 CALCULATION OF OPTION SCHEME CONSIDERATION
The Option Scheme Consideration in respect of each Scheme Option is a
cash amount determined in relation to that Scheme Option in accordance
with the following table:
EXPIRY DATE OF SCHEME OPTION CONSIDERATION PER SCHEME OPTION
- ---------------------------- -------------------------------
30 August 2011 $2.07
Page 5
Scheme of Arrangement
EXPIRY DATE OF SCHEME OPTION CONSIDERATION PER SCHEME OPTION
- ---------------------------- -------------------------------
5 November 2011 $2.14
5.2 PAYMENT OF OPTION SCHEME CONSIDERATION
The obligation of TABCORP Acquirer to pay the Option Scheme
Consideration will be satisfied by TABCORP Acquirer within five
Business Days after the Implementation Date either, in relation to each
Scheme Optionholder:
(a) dispatching, or procuring the dispatch of, a cheque to the
Scheme Optionholder by pre-paid post to their Registered
Address (as at the Record Date), such cheque being drawn in
the name of the Scheme Optionholder; or
(b) making a deposit in an account with any ADI (as defined in the
Banking Act 1959 (Cth)) in Australia notified by the Scheme
Optionholder to Jupiters and recorded in or for the purposes
of the Jupiters Option Register at the Record Date,
for the relevant amount, with that amount being denominated in
Australian dollars.
6. EXERCISE RESTRICTIONS OF JUPITERS OPTIONS
6.1 EXERCISES PRIOR TO RECORD DATE
(a) Jupiters will not accept as valid, nor recognise for any
purpose, any notice of exercise of a Jupiters Option received:
(i) by the Record Date otherwise than in accordance with
the terms of grant of the Jupiters Option; or
(ii) after the Record Date.
(b) Jupiters will issue, and register the relevant Jupiters
Optionholder as the holder of, a Jupiters Share in respect of
the exercise of a Jupiters Option in accordance with clause
6.1(a) by the record date for the Ordinary Scheme, in
accordance with the terms of grant of the Jupiters Option.
6.2 MAINTENANCE OF JUPITERS OPTION REGISTER
For the purpose of determining entitlements to the Option Scheme
Consideration, Jupiters will, until the Option Scheme Consideration has
been provided in accordance with the Option Scheme, maintain or procure
the maintenance of the Jupiters Option Register in accordance with this
clause 6, and the Jupiters Option Register in this form will solely
determine entitlements to the Option Scheme Consideration. Each entry
on the Jupiters Option Register at the Record Date relating to Scheme
Options will cease to have any effect other than as evidence of the
entitlement to the Option Scheme Consideration in respect of those
Scheme Options.
6.3 PROVISION OF INFORMATION
On or before 9.00am on the Implementation Date, Jupiters must give to
TABCORP details of the names, Registered Addresses and holdings of
Scheme Options of every Scheme Optionholder as shown in the Jupiters
Option Register at the Record Date, such details to be provided in such
form as TABCORP may reasonably require.
Page 6
Scheme of Arrangement
7. GENERAL SCHEME PROVISIONS
7.1 OPTION SCHEME ALTERATIONS AND CONDITIONS
If the Court proposes to approve the Option Scheme subject to any
alterations or conditions, Jupiters may, by its counsel or solicitors
but subject to the prior approval of TABCORP, consent on behalf of all
persons concerned to those alterations or conditions.
7.2 COVENANTS BY SCHEME OPTIONHOLDERS
Each Scheme Optionholder:
(a) agrees to the cancellation of their Scheme Options, in
accordance with the Option Scheme;
(b) without the need for any further act, irrevocably appoints
Jupiters and each of the directors and officers of Jupiters,
jointly and severally, as the Scheme Optionholder's attorney
and agent for the purpose of executing any document or doing
any other act necessary to give full effect to the Option
Scheme and the transactions contemplated by it; and
(c) consents to Jupiters doing all things and executing all deeds,
instruments, transfers and other documents as may be necessary
or desirable to give full effect to the Option Scheme and the
transactions contemplated by it.
7.3 EFFECT OF OPTION SCHEME
The Option Scheme binds Jupiters and all Jupiters Optionholders from
time to time and, to the extent of any inconsistency, overrides the
constitution of Jupiters and the terms of grant of the Jupiters Options
(including the terms of the Jupiters Option Plan).
7.4 NOTICES
Where a notice, transfer, transmission application, direction or other
communication referred to in the Option Scheme is sent by post to
Jupiters, it will not be deemed to be received in the ordinary course
of post or on a date other than the date (if any) on which it is
actually received at Jupiters' registered office or at the Jupiters
Share Registry.
7.5 FURTHER ASSURANCES
Jupiters will do all things and execute all deeds, instruments,
transfers and other documents as may be necessary or desirable to give
full effect to the Option Scheme and the transactions contemplated by
it.
7.6 COSTS
Jupiters will pay the costs of the Option Scheme.
7.7 PROPER LAW
The proper law of the Option Scheme is the law of Queensland.
Page 7
ANNEXURE D DEED POLL
TABCORP Holdings Limited
[TABCORP ACQUIRER]
[TABCORP ISSUER]
Stock Exchange Centre
530 Collins Street
Melbourne VIC 3000
Tel 61 3 9614 1011
Fax 61 3 9614 4661
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2003
Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 2
2. NATURE OF DEED POLL 2
3. CONDITIONS PRECEDENT AND TERMINATION 2
3.1 Conditions precedent 2
3.2 Termination 2
3.3 Consequences of termination 3
4. COMPLIANCE WITH ORDINARY SCHEME OBLIGATIONS 3
4.1 Payment of Ordinary Scheme Consideration 3
4.2 Provision of Scrip Consideration 3
4.3 Payment of cash amounts 4
4.4 Provision of Centrebet Notes 4
4.5 Joint holders 5
4.6 Deferred settlement trading of TABCORP Shares 5
4.7 Miscellaneous obligations 5
5. COMPLIANCE WITH RPS SCHEME OBLIGATIONS 5
5.1 Payment of RPS Scheme Consideration 5
5.2 Payment of cash amounts 6
5.3 Miscellaneous obligations 6
6. COMPLIANCE WITH OPTION SCHEME OBLIGATIONS 6
6.1 Payment of Option Scheme Consideration 6
6.2 Payment of cash amounts 6
6.3 Miscellaneous obligations 7
7. REPRESENTATIVES AND WARRANTIES 7
8. CONTINUING OBLIGATIONS 7
9. FURTHER ASSURANCES 7
10. NOTICES 7
11. NO WAIVER 8
12. REMEDIES CUMULATIVE 8
13. AMENDMENT 8
14. STAMP DUTY 9
15. ASSIGNMENT 9
16. GOVERNING LAW AND JURISDICTION 9
Page (i)
Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
DATE
BY
1. TABCORP HOLDINGS LIMITED (ABN 66 063 780 709) of 5 Bowen
Crescent, Melbourne, Victoria (TABCORP);
2. [TABCORP ACQUIRER] (ABN [*]) of [5 Bowen Crescent, Melbourne,
Victoria] (TABCORP ACQUIRER); and
3. [TABCORP ISSUER] (ABN [*]) of [5 Bowen Crescent, Melbourne,
Victoria] (TABCORP ISSUER)
IN FAVOUR OF
1. Each Scheme Shareholder;
2. Each Scheme RPS Holder; and
3. Each Scheme Optionholder
RECITALS
A TABCORP and Jupiters Limited (ABN 78 010 741 045) are parties
to a Merger Implementation Agreement dated [*] 2003 (the
MERGER IMPLEMENTATION AGREEMENT).
B TABCORP is the ultimate holding company of each of TABCORP
Acquirer and TABCORP Issuer.
C Under the Merger Implementation Agreement, TABCORP agreed,
subject to the satisfaction or waiver of certain conditions,
to execute all documents and do all acts and things within its
power as may be necessary or desirable for the implementation
and performance of the Schemes.
D Each of TABCORP, TABCORP Acquirer and TABCORP Issuer is
entering into this Deed Poll for the purpose of covenanting in
favour of Scheme Participants to perform its obligations under
the Schemes.
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
IT IS DECLARED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Ordinary Scheme, in the RPS Scheme and in the
Option Scheme, a copy of each of which is set out in annexures A, B and
C to the Merger Implementation Agreement, respectively, have the same
meanings in this Deed Poll unless the context requires otherwise. In
addition:
SCHEME PARTICIPANTS means Scheme Shareholders, Scheme RPS Holders and
Scheme Optionholders.
SCHEMES means the Ordinary Scheme, the RPS Scheme and the Option
Scheme.
1.2 INTERPRETATION
The provisions of clause 1.2 of the Ordinary Scheme form part of this
Deed Poll as if set out in full in this Deed Poll, and on the basis
that references to `this document' in that clause are references to
`this Deed Poll'.
2. NATURE OF DEED POLL
Each of TABCORP, TABCORP Acquirer and TABCORP Issuer acknowledges that
this Deed Poll may be relied on and enforced by any Scheme Participant
in accordance with its terms, notwithstanding that that person is not a
party to this Deed Poll.
3. CONDITIONS PRECEDENT AND TERMINATION
3.1 CONDITIONS PRECEDENT
Each of TABCORP's, TABCORP Acquirer's and TABCORP Issuer's obligations
(as relevant) under:
(a) clause 4 are subject to the Ordinary Scheme coming into effect
in accordance with section 411(10) of the Corporations Act;
(b) clause 5 are subject to the RPS Scheme coming into effect in
accordance with section 411(10) of the Corporations Act; and
(c) clause 6 are subject to the Option Scheme coming into effect
in accordance with section 411(10) of the Corporations Act.
3.2 TERMINATION
The obligations of each of TABCORP, TABCORP Acquirer and TABCORP Issuer
under this Deed Poll to Scheme Participants will automatically
terminate and the terms of this Deed Poll will be of no further force
or effect if the Merger Implementation Agreement is terminated in
accordance with its terms prior to the Effective Date for the Ordinary
Scheme.
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
3.3 CONSEQUENCES OF TERMINATION
If this Deed Poll is terminated under clause 3.2, then, in addition and
without prejudice to any other rights, powers or remedies available to
Scheme Participants:
(a) each of TABCORP, TABCORP Acquirer and TABCORP Issuer is
released from its obligations to further perform this Deed
Poll except those obligations contained in clause 14; and
(b) Scheme Participants retain the rights they have against each
of TABCORP, TABCORP Acquirer and TABCORP Issuer in respect of
any breach of this Deed Poll by it which occurred before
termination of this Deed Poll.
4. COMPLIANCE WITH ORDINARY SCHEME OBLIGATIONS
4.1 PAYMENT OF ORDINARY SCHEME CONSIDERATION
Subject to clause 3, in consideration for the transfer to TABCORP
Acquirer of each Scheme Share on the Implementation Date for the
Ordinary Scheme, within five Business Days after the Implementation
Date for the Ordinary Scheme:
(a) TABCORP Acquirer will pay to each Scheme Shareholder such
amount of cash as is due to that Scheme Shareholder under the
Ordinary Scheme as Cash Consideration;
(b) TABCORP Acquirer will pay to each Scheme Shareholder such
amount of cash (if any) as is due to that Scheme Shareholder
under clause 5.1(c)(i) of the Ordinary Scheme as the Centrebet
Payment;
(c) TABCORP will issue to each Eligible Scheme Shareholder such
number of TABCORP Shares as are due to that Eligible Scheme
Shareholder under the Ordinary Scheme as Scrip Consideration;
(d) TABCORP will issue to the Sale Agent in accordance with the
Ordinary Scheme such number of TABCORP Shares as are
attributable to Ineligible Overseas Shareholders under the
Ordinary Scheme as Scrip Consideration;
(e) TABCORP Issuer will issue to each Eligible Scheme Shareholder
such number of Centrebet Notes (if any) as are due to that
Eligible Scheme Shareholder under clause 5.1(c)(ii) of the
Ordinary Scheme; and
(f) TABCORP Issuer will issue to the Ineligible Note Trustee in
accordance with the Ordinary Scheme such number of Centrebet
Notes (if any) as are attributable to Ineligible Overseas
Shareholders under clause 5.1(c)(ii) of the Ordinary Scheme.
4.2 PROVISION OF SCRIP CONSIDERATION
In satisfaction of its obligation to issue TABCORP Shares to an
Eligible Scheme Shareholder entitled to be issued TABCORP Shares under
the Ordinary Scheme, TABCORP will:
(a) on the Implementation Date for the Ordinary Scheme, cause the
name and Registered Address (as at the Record Date for the
Ordinary Scheme) of that Eligible Scheme Shareholder to be
entered in the TABCORP Share Register as the holder of the
TABCORP Shares issued to that Eligible Scheme Shareholder; and
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
(b) within five Business Days after the Implementation Date for
the Ordinary Scheme, procure the dispatch to that Eligible
Scheme Shareholder, by pre-paid post to their Registered
Address (as at the Record Date for the Ordinary Scheme), of an
uncertificated holding statement in the name of that Eligible
Scheme Shareholder representing the number of TABCORP Shares
issued to that Eligible Scheme Shareholder.
4.3 PAYMENT OF CASH AMOUNTS
In satisfaction of its obligations:
(a) to pay the Cash Consideration;
(b) to make the Centrebet Payments; and
(c) to make any payment pursuant to clause 5.6(a) of the Ordinary
Scheme,
TABCORP Acquirer will, within five Business Days after the
Implementation Date for the Ordinary Scheme (or, in the case of clause
4.3(c), within such later time allowed by the Ordinary Scheme) either,
in relation to each Scheme Shareholder:
(d) dispatch, or procure the dispatch of, a cheque to the Scheme
Shareholder by pre-paid post to their Registered Address (as
at the Record Date for the Ordinary Scheme), such cheque being
drawn in the name of the Scheme Shareholder; or
(e) make a deposit in an account with any ADI (as defined in the
Banking Act 1959 (Cth)) in Australia notified by the Scheme
Shareholder to Jupiters and recorded in or for the purposes of
the Jupiters Share Register at the Record Date for the
Ordinary Scheme,
for the relevant amount, with that amount being denominated in
Australian dollars.
4.4 PROVISION OF CENTREBET NOTES
In satisfaction of its obligation to issue Centrebet Notes (if
applicable) to an Eligible Scheme Shareholder under the Ordinary
Scheme, TABCORP Issuer will:
(a) on the Implementation Date for the Ordinary Scheme, cause the
name and Registered Address (as at the Record Date for the
Ordinary Scheme) of that Eligible Scheme Shareholder to be
entered in the register for the Centrebet Notes as the holder
of the Centrebet Notes issued to that Eligible Scheme
Shareholder; and
(b) within five Business Days after the Implementation Date for
the Ordinary Scheme, procure the dispatch to that Eligible
Scheme Shareholder, by pre-paid post to their Registered
Address (as at the Record Date for the Ordinary Scheme), of a
certificate in the name of that Eligible Scheme Shareholder
representing the number of Centrebet Notes issued to that
Eligible Scheme Shareholder.
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
4.5 JOINT HOLDERS
In the case of Scheme Shares held in joint names:
(a) any uncertificated holding statements for TABCORP Shares to be
issued to Scheme Shareholders will be issued in the names of
the joint holders;
(b) any cheque required to be paid to Scheme Shareholders will be
payable to the joint holders; and
(c) any certificates for Centrebet Notes to be issued to Scheme
Shareholders will be issued in the names of the joint holders,
and be forwarded to the holder whose name appears first in the Jupiters
Share Register at the Record Date for the Ordinary Scheme.
4.6 DEFERRED SETTLEMENT TRADING OF TABCORP SHARES
TABCORP will use its best endeavours to procure that the TABCORP Shares
to be issued pursuant to the Ordinary Scheme will be quoted on the
stock market conducted by ASX as soon as practicable after the
Effective Date, taking into account the requirements of ASX in
connection with the making of Elections, initially on a deferred
settlement basis and thereafter on an ordinary settlement basis.
4.7 MISCELLANEOUS OBLIGATIONS
Subject to clause 3:
(a) TABCORP will comply with the obligations contemplated of it
under clauses 3.2, 5.6(a) and 5.8 of the Ordinary Scheme, and
will procure that each of TABCORP Acquirer and TABCORP Issuer
complies with the obligations contemplated of TABCORP Acquirer
or TABCORP Issuer (as the case may be) under the Ordinary
Scheme;
(b) TABCORP Acquirer will comply with the obligations contemplated
of it under clauses 4.2(b), 4.3(a), 5.6(a) and 9.7 of the
Ordinary Scheme; and
(c) TABCORP Issuer will comply with the obligations contemplated
of it under clauses 4.3(d) and (e) and 5.6(b) of the Ordinary
Scheme.
5. COMPLIANCE WITH RPS SCHEME OBLIGATIONS
5.1 PAYMENT OF RPS SCHEME CONSIDERATION
Subject to clause 3, in consideration for the transfer to TABCORP
Acquirer of each Scheme RPS on the Implementation Date for the RPS
Scheme, within five Business Days after the Implementation Date for the
RPS Scheme, TABCORP Acquirer will pay to each Scheme RPS Holder the RPS
Scheme Consideration.
Page 5
Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
5.2 PAYMENT OF CASH AMOUNTS
In satisfaction of its obligation to pay the RPS Scheme Consideration,
TABCORP Acquirer will, within five Business Days after the
Implementation Date for the RPS Scheme either, in relation to each
Scheme RPS Holder:
(a) dispatch, or procure the dispatch of, a cheque to the Scheme
RPS Holder by pre-paid post to their Registered Address (as at
the Record Date for the RPS Scheme), such cheque being drawn
in the name of the Scheme RPS Holder; or
(b) make a deposit in an account with any ADI (as defined in the
Banking Act 1959 (Cth)) in Australia notified by the Scheme
RPS Holder to Jupiters and recorded in or for the purposes of
the Jupiters Share Register at the Record Date for the RPS
Scheme,
for the relevant amount, with that amount being denominated in
Australian dollars. In the case of Scheme RPS held in joint names any
cheque required to be paid to Scheme RPS Holders will be payable to the
joint holders and be forwarded to the holder whose name appears first
in the Jupiters Share Register at the Record Date for the RPS Scheme.
5.3 MISCELLANEOUS OBLIGATIONS
Subject to clause 3:
(a) TABCORP will comply with the obligations contemplated of it
under clause 3.2 of the RPS Scheme, and will procure that
TABCORP Acquirer complies with the obligations contemplated of
TABCORP Acquirer under the RPS Scheme; and
(b) TABCORP Acquirer will comply with the obligations contemplated
of it under clauses 4.2(b) and 7.7 of the RPS Scheme.
6. COMPLIANCE WITH OPTION SCHEME OBLIGATIONS
6.1 PAYMENT OF OPTION SCHEME CONSIDERATION
Subject to clause 3, in consideration for the cancellation of the
Scheme Options, within five Business Days after the Implementation Date
for the Option Scheme, TABCORP Acquirer will pay to each Scheme
Optionholder the Option Scheme Consideration.
6.2 PAYMENT OF CASH AMOUNTS
In satisfaction of its obligation to pay the Option Scheme
Consideration, TABCORP Acquirer will, within five Business Days after
the Implementation Date for the Option Scheme either, in relation to
each Scheme Optionholder:
(a) dispatch, or procure the dispatch of, a cheque to the Scheme
Optionholder by pre-paid post to their Registered Address (as
at the Record Date for the Option Scheme), such cheque being
drawn in the name of the Scheme Optionholder; or
Page 6
Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
(b) make a deposit in an account with any ADI (as defined in the
Banking Act 1959 (Cth)) in Australia notified by the Scheme
Optionholder to Jupiters and recorded in or for the purposes
of the Jupiters Option Register at the Record Date for the
Option Scheme,
for the relevant amount, with that amount being denominated in
Australian dollars.
6.3 MISCELLANEOUS OBLIGATIONS
Subject to clause 3, TABCORP will comply with the obligations
contemplated of it under clause 3.2 of the Option Scheme, and will
procure that TABCORP Acquirer complies with the obligations
contemplated of TABCORP Acquirer under the Option Scheme.
7. REPRESENTATIVES AND WARRANTIES
Each of TABCORP, TABCORP Acquirer and TABCORP Issuer represents and
warrants that:
(a) it is a company validly existing under the laws of Australia;
(b) it has the corporate power to enter into and perform its
obligations under this Deed Poll and to carry out the
transactions contemplated by this Deed Poll;
(c) it has taken all necessary corporate action to authorise the
entry into this Deed Poll and has taken or will take all
necessary corporate action to authorise the performance of
this Deed Poll and to carry out the transactions contemplated
by this Deed Poll; and
(d) this Deed Poll is its valid and binding obligation enforceable
in accordance with its terms, subject to any necessary
stamping.
8. CONTINUING OBLIGATIONS
This Deed Poll is irrevocable and remains in full force and effect
until the earlier of:
(a) each of TABCORP, TABCORP Acquirer and TABCORP Issuer having
completely performed its obligations under this Deed Poll; and
(b) termination of this Deed Poll under clause 3.
9. FURTHER ASSURANCES
Each of TABCORP, TABCORP Acquirer and TABCORP Issuer will 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 Poll and the transactions contemplated by it.
10. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given or
made to TABCORP, TABCORP Acquirer or TABCORP Issuer under this Deed
Poll:
(a) must be in writing and signed by the sender or a person duly
authorised by the sender;
(b) must be delivered to TABCORP, TABCORP Acquirer or TABCORP
Issuer (as the case may be) by prepaid post (if posted to an
address in another country, by registered airmail)
Page 7
Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
or by hand or fax to the address or fax number below or the
address or fax number last requested by TABCORP in writing:
5 Bowen Crescent
Melbourne Victoria 3000
Attention: The Company Secretary
Fax No: +61 3 9868 2726;
(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, three business days
after the date of posting (if posted to an address in
the same country) or seven 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 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 start
of business on the next business day in that place.
11. NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by any of TABCORP, TABCORP Acquirer or TABCORP Issuer or by a
Scheme Participant 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 person granting that waiver unless made in
writing.
12. REMEDIES CUMULATIVE
The rights, powers and remedies of each of TABCORP, TABCORP Acquirer
and TABCORP Issuer and of each Scheme Participant under this Deed Poll
are in addition to, and do not exclude or limit, any right, power or
remedy provided by law or equity or by any agreement.
13. AMENDMENT
No amendment or variation of this Deed Poll by any of TABCORP, TABCORP
Acquirer or TABCORP Issuer is valid or binding unless the amendment or
variation is agreed to by Jupiters, which agreement Jupiters may give
or withhold in its absolute discretion and without reference to or
approval by any Scheme Participant. If such an amendment or variation
is agreed, each of TABCORP, TABCORP Acquirer and TABCORP Issuer will
enter into a further deed poll in favour of the Scheme Participants
giving effect to such amendment or variation.
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
14. STAMP DUTY
All stamp duty (including fines, penalties and interest) that may be
payable on or in connection with this Deed Poll and any instrument
executed under this Deed Poll must be borne by TABCORP Acquirer.
TABCORP Acquirer must indemnify each Scheme Participant on demand
against any liability for that stamp duty.
15. ASSIGNMENT
The rights and obligations of each of TABCORP, TABCORP Acquirer and
TABCORP Issuer and of each Scheme Participant under this Deed Poll are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no person may attempt, or purport, to do so without the prior
written consent of TABCORP and Jupiters.
16. GOVERNING LAW AND JURISDICTION
This Deed Poll is governed by the laws of Victoria. Each of TABCORP,
TABCORP Acquirer and TABCORP Issuer submits to the non-exclusive
jurisdiction of courts exercising jurisdiction there in connection with
matters concerning this Deed Poll.
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Deed Poll [ALLENS ARTHUR ROBINSON LOGO]
EXECUTED as a DEED POLL in Melbourne, Victoria.
EXECUTED by TABCORP HOLDINGS LIMITED in
accordance with the Corporations Act:
____________________________________ ______________________________
Director Signature Director/Secretary Signature
____________________________________ ______________________________
Print Name Print Name
EXECUTED by [TABCORP ACQUIRER] in
accordance with the Corporations Act:
____________________________________ ______________________________
Director Signature Director/Secretary Signature
____________________________________ ______________________________
Print Name Print Name
EXECUTED by [TABCORP ISSUER] in accordance
with the Corporations Act:
____________________________________ ______________________________
Director Signature Director/Secretary Signature
____________________________________ ______________________________
Print Name Print Name
Page 10
ANNEXURE E (PART 1)
JUPITERS LIMITED
CENTREBET PTY LIMITED
[LICENSEE]
--------------------------------------------------
CENTAUR SOFTWARE ASSIGNMENT AND
LICENCE AGREEMENT
--------------------------------------------------
CORRS CHAMBERS WESTGARTH
Lawyers
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000
AUSTRALIA
Tel: (07) 3228 9333
Fax: (07) 3228 9444
DX: 135 BRISBANE
Ref: ECS/PSN
JUPI3631-7654562
B/633510/3
THIS AGREEMENT is made on 2003
BETWEEN JUPITERS LIMITED ABN 78 010 741 045 of Level 9, 17 Victoria
Avenue, Broadbeach, Queensland, Australia ("JUPITERS")
AND CENTREBET PTY LIMITED ABN 78 082 760 610 of Level 1 Yeperenye
Centre, 36 Hartley Street, Alice Springs, Northern Territory,
Australia ("CENTREBET")
AND [PURCHASER] ABN [ABN] of [insert] ("LICENSEE")
RECITALS
A The Centaur Software has been developed by or on behalf of Jupiters.
B The Centaur Software is used in the Business.
C Some components of the Centaur Software are also components of other
information systems, which are used by Jupiters and its Related
Corporations and customers other than in the Business.
D As part of the sale of the Business, the Licensee will be assigned or
licensed to use the components of the Centaur Software.
E Centrebet has agreed to assign the Assigned Centaur Software and
Jupiters has agreed to licence the Licensed Centaur Software to the
Licensee on the terms of this Agreement.
IT IS AGREED
1 INTERPRETATION
1.1 DEFINITIONS
In this document:
"ASSIGNED CENTAUR SOFTWARE" means the Centaur Software components set
out in SCHEDULE 1.
"ASSIGNED CENTAUR SOFTWARE PURCHASE PRICE" means AUD[INSERT].
"BUSINESS" means a business conducted by the Licensee involving the
provision of sports betting and/or gaming services (including, for the
removal of doubt, betting on any event, series of events or
contingency) via means of telephone (whether fixed line or mobile), the
Internet or any other electronic means and where such services are
ordinarily accessible by customers from their place of residence.
"BUSINESS DAY" means a day which is not a Saturday, Sunday or bank or
public holiday in Sydney.
"CENTAUR SOFTWARE" means the Assigned Centaur Software and the Licensed
Centaur Software.
"COMPLETION" has the meaning given in the Sale and Purchase of Business
Agreement.
"CORPORATIONS ACT" means the Corporations Act 2001 (Cth).
2
"DOCUMENTATION" means the documentation in relation to the Centaur
Software set out in SCHEDULE 3.
"ENCUMBRANCE" means any mortgage or charge (whether fixed or floating).
"GST" has the meaning given to that expression in the GST Act.
"GST ACT" means the A New Tax System (Goods and Services Tax) Act 1999
(Cth), as amended and any related imposition Act.
"LICENCE" means the licence granted to the Licensee under clause 5.
"LICENSED CENTAUR SOFTWARE" means the Centaur Software components set
out in SCHEDULE 2.
"LOSS" means any and all losses (including direct, indirect, loss of
profit and loss of expected profit), claims, demands, actions,
liabilities, damages, costs, expenses, diminutions in value or
deficiencies of any kind or character including all interest and other
amounts payable to third parties, all liabilities on account of taxes
and all legal (on a full indemnity basis) and other expenses reasonably
incurred in connection with investigating or defending any claims or
actions, whether or not resulting in any liability and all amounts paid
in settlement of claims or actions.
"OBJECT CODE," in relation to:
(a) computer software other than database systems, means the form
of that software that is the preferred form for execution by a
computer. However, "Object Code" does not include anything
that is normally distributed with the operating system
platform on which the software runs, nor any third party
software libraries which the software uses; and
(b) database systems, has the definition referred to in paragraph
(a) in so far as that definition is applicable to database
systems, and includes database schemata and the executable
form of stored procedures, but excludes the content of any
database, and also excludes any third party database
management system on which the database operates.
"RELATED CORPORATION," in relation to a body corporate, means any body
corporate which is, under section 50 of the Corporations Act 2001
(Cth), related to the first body.
"SALE AND PURCHASE OF BUSINESS AGREEMENT" means the document entered
into between Jupiters, Centrebet, the Licensee and the Guarantor
entitled "Sale and Purchase of Business Agreement".
"SOURCE CODE," in relation to:
(a) computer software other than database systems, means the form
of that software that is the preferred form for comprehending,
correcting, modifying and developing it, and includes (where
applicable) all the source code for all modules it contains,
any associated interface definition ("header") files, and the
scripts used to control its compilation and installation.
However, "Source Code" does not include anything that is
normally distributed with the operating system platform on
which the software runs, any of the tools necessary to develop
or compile the
3
software, or any third party static or dynamic software
libraries which the software uses; and
(b) database systems, has the definition referred to in paragraph
(a) in so far as that definition is applicable to database
systems, and includes database schemata and the source code of
stored procedures, but excludes the content of any database,
and also excludes any third party database management system
on which the database operates.
"TRANSITIONAL SERVICES AGREEMENT" has the meaning given in the Sale and
Purchase of Business Agreement.
1.2 CONSTRUCTION
Unless expressed to the contrary, in this document:
(a) words in the singular include the plural and vice versa;
(b) any gender includes the other genders;
(c) if a word or phrase is defined its other grammatical forms
have corresponding meanings;
(d) the meaning of general words is not limited by specific
examples introduced by "including", "includes" or "for
example", or similar expressions;
(e) no rule of construction will apply to a clause to the
disadvantage of a party merely because that party put forward
the clause or would otherwise benefit from it;
(f) a reference to:
(i) a person includes a partnership, joint venture,
unincorporated association, corporation and a
government or statutory body or authority;
(ii) a person includes the person's legal personal
representatives, successors, assigns and persons
substituted by novation;
(iii) any legislation includes subordinate legislation
under it and includes that legislation and
subordinate legislation as modified or replaced;
(iv) an obligation includes a warranty or representation
and a reference to a failure to comply with an
obligation includes a breach of warranty or
representation;
(v) a right includes a benefit, remedy, discretion or
power;
(vi) time is to local time in Brisbane;
(vii) "$" or "dollars" is a reference to Australian
currency;
(viii) this or any other document includes the document as
novated, varied or replaced and despite any change in
the identity of the parties;
4
(ix) writing includes any mode of representing or
reproducing words in tangible and permanently visible
form, and includes fax transmissions;
(x) this document includes all schedules and annexures to
it; and
(xi) a clause, schedule or annexure is a reference to a
clause, schedule or annexure, as the case may be, of
this document; and
(g) where time is to be calculated by reference to a day or event,
that day or the day of that event is excluded.
1.3 HEADINGS
Headings do not affect the interpretation of this document.
2 COMMENCEMENT
This document commences on Completion.
3 EFFECT OF FAILURE TO COMPLETE
If any party to the Sale and Purchase of Business Agreement terminates
the Sale and Purchase of Business Agreement before Completion or
Completion does not occur for any reason whatsoever, then:
(a) this Agreement does not commence under Clause 2 and has no
effect whatsoever;
(b) neither Jupiters nor Centrebet will have any obligation to
provide any services under this Agreement; and
(c) the Licensee must immediately return to Jupiters any software
or documents which were provided by Jupiters or Centrebet, but
which are in the Licensee's possession, power or control.
4 ASSIGNED CENTAUR SOFTWARE
In consideration of:
(a) the Licensee entering into the Sale and Purchase of Business
Agreement; and
(b) payment of the Assigned Centaur Software Purchase Price,
on Completion Centrebet assigns to the Licensee, and the Licensee
accepts the assignment of, all of Centrebet's right, title and interest
in the copyright in the Assigned Centaur Software, free from any
Encumbrance.
5 LICENSED CENTAUR SOFTWARE AND DOCUMENTATION
On Completion, Jupiters grants to the Licensee and the Licensee accepts
a non-exclusive, royalty-free, licence (without rights to sub-licence)
to:
(a) use, execute, compile, reproduce, modify, transmit and
communicate the Licensed Centaur Software; and
(b) use and reproduce the Documentation,
5
provided that the Licensed Centaur Software and Documentation is only
used together with the Assigned Centaur Software for the purposes of
the Business, on the terms and conditions of this Agreement.
6 DELIVERY AND PAYMENT
(a) On Completion, the Purchaser shall pay to Centrebet (or as
Centrebet's solicitors direct in writing) the Assigned Centaur
Software Purchase Price.
(b) On Completion, or as soon as practicable thereafter, Jupiters
shall deliver to the Licensee:
(i) a copy of the Source Code of the Centaur Software;
(ii) a copy of the Object Code of the Centaur Software;
and
(iii) a copy of the Documentation,
in digital form on CD-ROM.
7 TERMINATION
Jupiters may terminate the Licence immediately by notice to the
Licensee if:
(a) the Licensee breaches any material obligation to be observed
or performed by it under this Agreement, which breach is
capable of remedy, and that breach continues for a period of
at least 20 Business Days (or such longer time as may be
nominated in the notice) after written notice of the breach is
given by Jupiters to the Licensee;
(b) the Licensee breaches any material obligation to be observed
or performed by it under this Agreement, which breach is
incapable of remedy;
(c) the Licensee assigns or purports to assign its interest under
this Agreement or does anything which has a similar effect, in
breach of clause 12.10 of this Agreement and fails to rectify
the breach for a period of at least 20 Business Days (or such
longer time as may be nominated in the notice) after written
notice of the breach is given by Jupiters to the Licensee;
(d) the Licensee sells or disposes of all, or substantially all,
of the Business without assigning its rights under this
Agreement to the purchaser of the Business;
(e) the Licensee:
(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 Act;
(iii) must be presumed by a court to be insolvent by reason
of section 459C(2) of the Corporations Act;
(iv) fails to comply with a statutory demand (within the
meaning of section 459F(1) of the Corporations Act);
6
(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 Act or similar officer appointed to
all or any of its assets or undertaking;
(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 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) enters into any formal arrangement with its creditors
generally.
8 WARRANTIES AND LIABILITY
8.1 INDEMNITY
The Licensee at all times indemnifies and holds harmless Jupiters and
Centrebet (jointly and severally) from and against all actions, claims,
charges, costs, expenses, losses, damages and other liability arising
out of or otherwise in connection with any and all:
(a) wilful, unlawful or negligent acts or omissions of or on
behalf of the Licensee;
(b) breaches or alleged breaches of any third party's rights in
connection with the use or modification by the Licensee of the
Licensed Centaur Software:
(i) in any combination or form with software or hardware
not approved by Jupiters under this Agreement; or
(ii) in any way not authorised by Jupiters under this
Agreement;
(c) claims or action brought against Jupiters and Centrebet
(jointly or severally) in connection with the use or
modification by the Licensee of the Licensed Centaur Software:
(i) in any combination or form with software or hardware
not approved by Jupiters under this Agreement; or
(ii) in any way not authorised by Jupiters under this
Agreement;
(d) personal injury and loss or damage to property caused or
contributed to or by an act or omission of or on behalf of the
Licensee in connection with this Agreement; and
(e) actions, claims, charges, costs, expenses, losses, damages and
other liability arising out of or in connection with any
breach or non-observance by the Licensee of this Agreement.
8.2 LIMITATION OF LIABILITY
Subject to clause 8.3(c) and to the maximum extent possible, neither
Jupiters nor Centrebet is liable to the Licensee for any Loss incurred
by the Licensee which results directly or
7
indirectly as a result of, or in connection with, this Agreement,
however caused, including by any negligent act or omission by Jupiters
and/or Centrebet, their officers, employees, agents or contractors.
8.3 WARRANTIES
(a) The Licensee warrants to Jupiters and Centrebet (jointly and
severally) that its use or modification of the Licensed
Centaur Software:
(i) in any combination or form with software or hardware
not approved by Jupiters under this Agreement; or
(ii) in any way not authorised by Jupiters under this
Agreement,
will not infringe any rights of any third party, including
contractual, intellectual property or moral rights.
(b) Subject to paragraph (c), and to the maximum extent possible,
all conditions, warranties and terms not expressly contained
in this document, whether implied by operation of law,
inference from circumstances, industry practice or otherwise,
are excluded. The Licensee acknowledges that the Centaur
Software is licensed and assigned "as is."
(c) If any term, warranty or condition is implied by law into this
Agreement which by law cannot be excluded, but may be limited,
the liability of Jupiters and Centrebet (jointly or severally)
for any breach of any such term, condition or warranty
(including, without limitation, to any person claiming through
the Licensee) is limited, at the option of Jupiters or
Centrebet (as the case may be), to:
(i) in the case of goods,
(A) the replacement of the goods or the supply
of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the
goods or acquiring equivalent goods; or
(D) the payment of the cost of having the goods
repaired; or
(ii) in the case of services,
(A) the supply of the goods again; or
(B) the payment of the cost of having the
services supplied again.
8.4 EFFECT ON LICENSEE'S RIGHTS
Where any third party claim is brought against Jupiters, Centrebet or
the Licensee (jointly or severally) for infringement of any third
party's rights in connection with the Licensed Centaur Software or the
Documentation, and that claim is settled by Jupiters, Centrebet or the
Licensee (as the case may be) in any manner or a final injunction is
awarded to the third party which prejudices the Licensee's right to use
the Licensed Centaur Software or
8
the Documentation as permitted by this Agreement, Jupiters and/or
Centrebet (as the case may be) will, at its or their expense and at its
or their option:
(a) replace the Licensed Centaur Software or Documentation or part
of the Licensed Centaur Software or Documentation with
reasonably equivalent software or documentation, which does
not infringe the third party's rights, in which case the
Licence and this Agreement will apply to that replacement
software or documentation (or part) to the exclusion of the
Licensed Centaur Software or Documentation (or part) which it
replaces; or
(b) procure for the Licensee from the third party the right to use
all or that part of the Licensed Centaur Software or
Documentation which has infringed the third party's rights, on
no less favourable terms than the Licensee is entitled to use
the Licensed Centaur Software or Documentation under this
Agreement;
(c) modify the Licensed Centaur Software or Documentation in such
a way that there is no longer an infringement of the third
party's rights, in which case the Licence and this Agreement
will apply to that modified Licensed Centaur Software or
Documentation to the exclusion of the Licensed Centaur
Software or Documentation that may exist without that
modification;
(d) assign to the Licensee, by notice to the Licensee, all of its
rights in those parts of the Licensed Centaur Software or the
Documentation that infringe the third party's rights, without
the need for any further act by the Licensee, and upon such
assignment the Licence will automatically terminate only in
relation to those parts of the Licensed Centaur Software or
the Documentation that infringe the third party's rights and
the Licensee will be solely liable for any Loss incurred by
the Licensee, or any other person, which results directly or
indirectly from the Licensee's utilisation of those parts of
the Licensed Centaur Software or the Documentation assigned
under this paragraph (d); or
(e) assign to the Licensee, by notice to the Licensee, all of its
rights in the Licensed Centaur Software or the Documentation,
without the need for any further act by the Licensee, and upon
such assignment the Licence will automatically terminate and
the Licensee will be solely liable for any Loss incurred by
the Licensee, or any other person, which results directly or
indirectly from the Licensee's utilisation of the Licensed
Centaur Software or the Documentation as assigned under this
paragraph (e).
9 LICENSEE'S ASSUMPTION OF RISK
The Licensee agrees and acknowledges that it:
(a) exercises its rights under this document at its own risk; and
(b) assumes all risk for all Loss incurred by the Licensee, or any
other person, which results directly or indirectly from the
Licensee's utilisation of the Centaur Software and Licence.
9
10 NO SOFTWARE SUPPORT
The Licensee agrees and acknowledges that, except as expressly provided
in the Transitional Services Agreement, neither Jupiters nor Centrebet
is under any obligation to provide the Licensee with any:
(a) installation, maintenance, repair, support or consultancy
services in respect of the Centaur Software; or
(b) updates, new releases, improvements or modifications of the
Centaur Software.
11 CONFIDENTIALITY
In addition to any other obligation of confidentiality between the
parties, the Licensee must keep the Source Code and Object Code of the
Licensed Centaur Software and the Documentation confidential and not
disclose any of that information to any other person, except:
(a) if required by law;
(b) to officers, employees, agents, contractors and advisers of
the Licensee and its wholly owned Related Corporations, to the
extent that they need to know the information for purposes
related to this Agreement and on condition that they agree to
be bound by the terms of this clause;
(c) with the prior written consent of Jupiters;
(d) if the information is in the public domain at the date of this
document, or comes into the public domain after the date of
this document other than as a result of a breach of this
Agreement or other breach of confidence;
(e) if the information is already known or in the possession of
the Licensee without restrictions relating to disclosure
before the date of receipt; or
(f) if the information is obtained from a source other than
Jupiters or Centrebet, provided that the source was not
subject to any prohibition against disclosure.
12 MISCELLANEOUS
12.1 STAMP DUTY
(a) The Licensee shall, as between the parties, be liable for and
duly pay all stamp duty (including any fine or penalty but
excluding any financial institutions duty) on or relating to
this document and any document executed under it.
(b) If a party other than the Licensee pays any stamp duty
(including any fine or penalty but excluding any financial
institutions duty) on or relating to this document or any
document executed under it, the Licensee shall pay that amount
to that party upon demand.
10
12.2 LEGAL COSTS
Unless otherwise stated, each party shall bear its own legal and other
costs and expenses relating directly or indirectly to the preparation
of, and performance of its obligations under, this document.
12.3 AMENDMENT
This document may only be varied or replaced by a document in writing
duly executed by the parties.
12.4 WAIVER AND EXERCISE OF RIGHTS
(a) A single or partial exercise or waiver of a right relating to
this document will not prevent any other exercise of that
right or the exercise of any other right.
(b) A party will not be liable for any Loss of any other party
caused or contributed to by the waiver, exercise, attempted
exercise, failure to exercise or delay in the exercise of a
right.
12.5 RIGHTS CUMULATIVE
Subject to any express provision in this document to the contrary, the
rights of a party under this document are cumulative and are in
addition to any other rights of that party.
12.6 APPROVALS AND CONSENT
Subject to any express provision in this document to the contrary, a
party may conditionally or unconditionally give or withhold any consent
to be given under this document and is not obliged to give its reasons
for doing so.
12.7 FURTHER ASSURANCE
Each party shall promptly execute all documents and do all things that
any other party from time to time reasonably requires of it to effect,
perfect or complete the provisions of this document and any transaction
contemplated by it.
12.8 GOVERNING LAW
This document is governed by and is to be construed in accordance with
the laws applicable in Queensland, Australia.
12.9 JURISDICTION
Each party:
(a) irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Queensland, Australia and any
courts which have jurisdiction to hear appeals from any of
those courts; and
(b) waives any right to object to any proceedings being brought in
those courts for any reason.
11
12.10 ASSIGNMENT
(a) Subject to paragraphs (b) and (c), no party may assign, novate
or deal with any of its rights and obligations under this
Agreement without the prior written consent of all other
parties.
(b) Centrebet may assign all of its title and interest in this
Agreement and its rights under this Agreement to Jupiters by
written notice to the Licensee.
(c) The Licensee may, upon written notice to Jupiters and
Centrebet, transfer or assign all of its rights and
obligations under this Agreement to a third party if the third
party:
(i) is the purchaser of all, or substantially all, of the
Business; and
(ii) enters into a deed of accession reasonably
satisfactory to Jupiters and Centrebet pursuant to
which the third party undertakes to be bound by and
to perform all of the obligations of the Licensee
under this Agreement.
12.11 COUNTERPARTS
This document may consist of a number of counterparts and if so the
counterparts taken together constitute one and the same instrument.
12.12 JOINT AND SEVERAL LIABILITY
An obligation of two or more persons binds them jointly and severally.
12.13 EFFECT OF EXECUTION
This document is not binding on any party unless it or a counterpart
has been duly executed by, or on behalf of, each person named as a
party to the document.
12.14 ENTIRE AGREEMENT
The Licensee acknowledges to Jupiters and Centrebet that (except for
the specific warranties made by them in this document and the Sale and
Purchase of Business Agreement):
(a) it has entered into this document relying entirely upon its
own independent appraisal and assessment of the Centaur
Software;
(b) it does not rely on any inference that may be drawn from any
record or statement as to the affairs of Jupiters and/or
Centrebet;
(c) it does not rely on any account, letter, document,
correspondence or arrangements whether oral or in writing as
adding to or amending the terms and arrangements set out in
this document and that the conditions and stipulations in this
document constitute the only agreement between the parties;
(d) it does not rely upon any warranty, statement or
representation made or given by or on behalf of Jupiters
and/or Centrebet;
12
(e) it is fully aware of the contents of this document and the
documents referred to in this document; and
(f) to the fullest extent possible waives any possible cause of
action or rights it may have under or in respect of Part V of
the Trade Practices Act 1974 or any other legislation which is
to any extent similar to such Part V or any portion of such
legislation touching or concerning anything the subject or
incidental to this document and releases and indemnifies to
the fullest extent possible Jupiters and Centrebet (jointly
and severally) and all persons or entities associated with
Jupiters and/or Centrebet from and against (as the case may
be) any claim or liability (if any) arising out of or
incidental to any such cause of action or right or any like
cause of action or right of any other person or entity
whatsoever.
13 NOTICES
13.1 GENERAL
A notice, demand, certification or other communication under this
document:
(a) shall be given in writing and in the English language; and
(b) may be given by an agent of the sender.
13.2 METHOD OF SERVICE
In addition to any means authorised by law a communication may be given
by:
(a) being delivered personally;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by
pre-paid ordinary mail or if the address is outside Australia,
by pre-paid air mail; or
(d) facsimile to the party's current facsimile number.
13.3 ADDRESS FOR SERVICE
(a) The addresses and facsimile numbers are initially:
(i) in the case of the Licensee:
[INSERT]
Tel: [INSERT]
Fax: [INSERT]
Attention: [INSERT]
13
(ii) in the case of Jupiters and Centrebet:
JUPITERS LIMITED
Level 9, Niecon Tower
17 Victoria Avenue
Broadbeach Queensland 4218
Attention: The Company Secretary
Fax No: (07) 5570 2194
CENTREBET PTY LTD
Level 9, Niecon Tower
17 Victoria Avenue
Broadbeach Queensland 4218
Attention: The Company Secretary
Fax No: (07) 5570 2194
(b) A party may from time to time change its address or numbers
for service by notice to the other party.
13.4 SERVICE BY POST
A communication given by post is to be taken to be received:
(a) if posted within Australia to an Australian address on the
third Business Day after posting; and
(b) in any other case, on the seventh Business Day after posting.
13.5 SERVICE BY FACSIMILE
A communication given by facsimile is deemed received when the sender's
facsimile machine produces a transmission report stating that the
facsimile was sent to the addressee's facsimile number.
13.6 FORM RECEIVED
A communication given by facsimile is to be taken to be given in the
form transmitted unless the message is not fully received in legible
form and the addressee immediately notifies the sender of that fact.
13.7 PROCESS SERVICE
Any process or other document relating to litigation, administrative or
arbitral proceedings in relation to this document may be served by any
method contemplated by this clause in addition to any means authorised
by law.
13.8 SERVICE AFTER HOURS
If a communication to a party is received by it:
(a) after 5.00 pm in the place of receipt; or
(b) on a day which is not a Business Day,
14
it is to be taken to have been received at the commencement of the next
Business Day.
13.9 PAYMENTS
Where a party is required under this document to make a payment to
another party, the party shall make the payment in cleared funds drawn
on a bank located in Australia either by:
(a) unendorsed bank cheque; or
(b) electronic funds transfer,
in accordance with the directions of the solicitors for the party
entitled to receive the payment.
13.10 GOING CONCERN
(a) Centrebet and the Purchaser hereby agree in writing that the
supply of the Assigned Centaur Software is a supply of a going
concern for the purposes of section 38-325 of the GST Act, and
Centrebet and the Purchaser intend that the supply shall be
GST free under that section.
(b) The Purchaser warrants that it is registered or is required to
be registered under the GST Act.
(c) The Purchaser acknowledges that the Assigned Centaur Software
Purchase Price has been agreed upon the basis that the supply
of the Assigned Centaur Software and the supply of the assets
assigned under the Sale and Purchase of Business Agreement is
a supply of a going concern, and the Purchaser hereby agrees
if that assumption is inaccurate or the Commissioner of
Taxation forms a different view, to pay to Centrebet the
amount of any GST imposed on the supply, together with any
general interest charge which is imposed under the Tax
Administration Act 1953 in relation to the late payment of the
GST.
15
SCHEDULE 1
ASSIGNED CENTAUR SOFTWARE
MODULE ORIGIN VERSION
------ ------ -------
Components
ARM CENTAUR 2.4.0.0
BAR CENTAUR 2.4.0.0
BOK CENTAUR 2.4.0.0
BRA CENTAUR 2.4.0.0
DAG CENTAUR 2.4.0.0
FIX CENTAUR 2.4.0.0
HRB CENTAUR 2.4.0.0
NTW CENTAUR 2.0.0.1
Sports Betting CENTAUR 2.4.0.0
NTDIB Service
PSP CENTAUR 2.3.03
SDI CENTAUR 2.4.0.0
ynamic Linked Libraries
Bugslayer.dll CENTREBET 1.0.0.1
Rim.dll CENTREBET 2.4.0.0
Cryptoki.dll CENTREBET NA
Sbpopb.dll CENTREBET 2.4.0.0
Dbghelp.dll CENTREBET 5.0.2195.1
Web
PHP API CENTAUR 2.3.0.0
GENERAL API CENTAUR 2.3.0.0
SEO Site CENTAUR 2.3.0.0
Admin Site CENTAUR 2.3.0.0
Main Site CENTAUR 2.3.0.0
16
SCHEDULE 2
LICENSED CENTAUR SOFTWARE
MODULE ORIGIN VERSION
------ ------ -------
Components
CDC COUGAR 3.2.0.56
CDI COUGAR 2.5.1.39
CEL COUGAR 2.5.1.10
CSS COUGAR 2.5.0.13
ISD COUGAR 2.0.2.34
MOP COUGAR 3.0.0.26
POM COUGAR 3.2.0.50
RIP COUGAR 3.1.0.32
VIC COUGAR 2.0.2.25
WAB COUGAR 3.2.0.55
LSM PATRON 1.0.1.9
MOI PATRON 1.0.1.10
PAG PATRON 1.0.1.6
PDI PATRON 1.0.1.8
PPC PATRON 1.0.1.9
PSDI PATRON 1.0.1.9
ADI NUMBERS 1.0.1.9
BDI NUMBERS 1.0.1.9
BET NUMBERS 1.0.1.9
DRW NUMBERS 1.0.1.9
NAG NUMBERS 1.0.1.10
NDI NUMBERS 1.0.1.9
REB NUMBERS 1.0.1.10
VAL NUMBERS 1.0.1.9
XIC NUMBERS 1.0.1.9
Numbers Game NUMBERS 1.0.0.7
NTDIB Service
Numbers Game NUMBERS 1.0.0.7
NTW
Other Executables
SAS.exe COUGAR 3.2.0.71
System Agent Client COUGAR 2.0.2.32
RPCClient.exe COUGAR 1.0.0.2
MkfilestoreName.exe COUGAR 1.0.0.1
Cougar Component COUGAR NA
Wizard
Sqlscript COUGAR 1.0.1.0
MessageFlow COUGAR 1.0.0.1
DBCodeGenerator COUGAR 1.0.0.1
CougarISQL COUGAR 7.0.2.8046
PMV COUGAR 1.1.1.20
ELM COUGAR 3.2.0.14
JTProt2Filter COUGAR 1.0.0.1
RND software COUGAR NA
BuildVer COUGAR 2.1.0.20
Numbers Random NUMBERS 1.0.0.38
Bet Generator
Dynamic Linked Libraries
Cmr.dll COUGAR 2.5.0.32
Csspopb.dll COUGAR 3.2.0.33
JtMailer.dll COUGAR 3.0.0.7
Jupcrypt.dll COUGAR NA
Popb.dll COUGAR 3.2.0.40
Nbpopb.dll NUMBERS 2.2.0.10
Drivers
HostPaw.sys COUGAR 2.0.2.13
Development Libraries
Common.lib CENTREBET NA
Sbperfmon.lib CENTREBET NA
CentaurCtr.lib CENTREBET NA
SBDB.lib CENTREBET NA
CSSDatabase.lib COUGAR NA
DatabaseAccess.lib COUGAR NA
Datastore.lib COUGAR NA
JTAppbase.lib COUGAR NA
JTCommon.lib COUGAR NA
JTProtParser.lib COUGAR NA
JTMailer.lib COUGAR NA
ODS.lib COUGAR NA
Perfmon.lib COUGAR NA
PomClient.dll COUGAR NA
Popb.lib COUGAR NA
Client App
share1.pbl COUGAR NA
sharereports.pbl COUGAR NA
wildcatfilestore.pbl COUGAR NA
wildcatutil.pbl COUGAR NA
Web
WIFE CYBERKENO 2.3.0.0
Numbers Flash NUMBERS 1.0.00
Applet
17
SCHEDULE 3
DOCUMENTATION
The current version of the user and technical documentation relating to the
Centaur Software.
18
EXECUTED as an agreement.
EXECUTED by JUPITERS LIMITED )
)
________________________________________ ______________________________
Company Secretary/Director Director
________________________________________ ______________________________
Name of Company Secretary/Director (print) Name of Director (print)
EXECUTED by CENTREBET PTY LTD )
by its duly appointed officer in )
the presence of: )
________________________________________ ______________________________
Witness Officer
________________________________________ ______________________________
Name of Witness (print) Name of Officer (print)
EXECUTED by [LICENSEE] by its duly )
appointed officer in the presence of: )
)
________________________________________ ______________________________
Witness Officer
________________________________________ ______________________________
Name of Witness (print) Name of Officer (print)
ANNEXURE E (PART 2)
JUPITERS LIMITED
CENTREBET PTY LIMITED
[PURCHASER]
------------------------------------
TRANSITIONAL SERVICES AGREEMENT
------------------------------------
CORRS CHAMBERS WESTGARTH
Lawyers
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000
AUSTRALIA
Tel: (07) 3228 9333
Fax: (07) 3228 9444
DX: 135 BRISBANE
Ref: ECS/PSN
JUPI3631-7654562
B/634840/4
CONTENTS
1 INTERPRETATION........................................................................................... 1
1.1 Definitions.................................................................................... 1
1.2 Construction................................................................................... 3
1.3 Headings....................................................................................... 4
2 COMMENCEMENT AND TERM.................................................................................... 4
3 EFFECT OF FAILURE TO COMPLETE............................................................................ 4
4 PEOPLESOFT SOFTWARE...................................................................................... 4
5 DATA WAREHOUSE........................................................................................... 5
5.1 Assignment or novation......................................................................... 5
5.2 Data Warehouse Services........................................................................ 5
5.3 Ownership of Purchaser's Data.................................................................. 5
5.4 Confidentiality of Purchaser's Data............................................................ 5
5.5 Compliance with Privacy Law.................................................................... 6
5.6 Purchaser's Facilities......................................................................... 6
5.7 No Warranty.................................................................................... 6
6 TRANSITION OF DATA WAREHOUSE SYSTEM...................................................................... 7
7 DESKTOP, MESSAGING AND OPERATING SYSTEMS SOFTWARE........................................................ 7
7.1 No assignment or novation...................................................................... 7
7.2 No Additional Desktop Support, Network Management or Backup Services........................... 7
8 FIREWALL AND SECURITY INFRASTRUCTURE AND SERVICES........................................................ 8
8.1 No assignment or novation...................................................................... 8
8.2 Firewall and Security Services................................................................. 8
8.3 No Warranty.................................................................................... 8
9 NETWORK AND DATA CENTRE SERVICES AND INFRASTRUCTURE...................................................... 8
9.1 No assignment.................................................................................. 8
9.2 Network and Data Centre Services............................................................... 8
9.3 No Warranty.................................................................................... 9
10 SUPPORT AND DEVELOPMENT.................................................................................. 9
10.1 Reasonable assistance.......................................................................... 9
10.2 Support and Development Services............................................................... 9
10.3 No Warranty.................................................................................... 9
11 CHARGES.................................................................................................. 10
12 CESSATION OF SERVICES.................................................................................... 10
13 TERMINATION.............................................................................................. 10
14 CONFIDENTIALITY.......................................................................................... 12
15 WARRANTIES AND LIABILITY................................................................................. 12
15.1 Indemnity...................................................................................... 12
(ii)
15.2 Limitation of Liability........................................................................ 13
15.3 Warranties..................................................................................... 13
16 PURCHASER'S ASSUMPTION OF RISK........................................................................... 14
17 MISCELLANEOUS............................................................................................ 14
17.1 Stamp duty..................................................................................... 14
17.2 Legal costs.................................................................................... 15
17.3 Amendment...................................................................................... 15
17.4 Waiver and exercise of rights.................................................................. 15
17.5 Rights cumulative.............................................................................. 15
17.6 Approvals and consent.......................................................................... 15
17.7 Further assurance.............................................................................. 15
17.8 Governing law.................................................................................. 15
17.9 Jurisdiction................................................................................... 15
17.10 Assignment..................................................................................... 16
17.11 Counterparts................................................................................... 16
17.12 Joint and several liability.................................................................... 16
17.13 Effect of execution............................................................................ 16
17.14 Entire agreement............................................................................... 16
18 NOTICES.................................................................................................. 17
18.1 General........................................................................................ 17
18.2 Method of service.............................................................................. 17
18.3 Address for service............................................................................ 17
18.4 Service by post................................................................................ 18
18.5 Service by facsimile........................................................................... 18
18.6 Form received.................................................................................. 18
18.7 Process service................................................................................ 18
18.8 Service after hours............................................................................ 18
THIS AGREEMENT is made on 2003
BETWEEN JUPITERS LIMITED ABN 78 010 741 045 of Level 9, 17 Victoria
Avenue, Broadbeach, Queensland, Australia] ("JUPITERS")
AND CENTREBET PTY LIMITED ABN 78 082 760 610 of Level 1 Yeperenye
Centre, 36 Hartley Street, Alice Springs, Northern Territory,
Australia] ("CENTREBET")
AND [PURCHASER] ABN [ABN] of [insert] ("PURCHASER")
RECITALS
A The Purchaser has entered into the Sale and Purchase of Business
Agreement with the Vendors.
B For the purpose of transitioning the Business to the Purchaser, the
Vendors have agreed to provide certain transitional services to the
Purchaser on the terms of this Agreement.
IT IS AGREED
1 INTERPRETATION
1.1 DEFINITIONS
In this document:
"BUSINESS" has the meaning given in the Sale and Purchase of Business
Agreement.
"BUSINESS DAY" means a day which is not a Saturday, Sunday or bank or
public holiday in Sydney.
"CENTAUR SOFTWARE ASSIGNMENT AND LICENCE AGREEMENT" means the software
assignment and licence agreement of that name annexed to the Sale and
Purchase of Business Agreement.
"CHARGES" means the amounts described in SCHEDULE 2.
"COMPLETION" has the meaning given in the Sale and Purchase of Business
Agreement.
"CORPORATIONS ACT" means the Corporations Act 2001 (Cth).
"DATA WAREHOUSE INFRASTRUCTURE" means Jupiters' SAS data analysis tools
licence, Jupiters' Sybase data warehouse database licence, Jupiters'
data warehouse database server, data warehouse web server, and data
warehouse application server.
"DATA WAREHOUSE SERVICES" means the services described as data
warehouse services in SCHEDULE 1.
"DEVELOPMENT SERVICES" means the services described as development
services in SCHEDULE 1.
"FIREWALL AND SECURITY INFRASTRUCTURE" means the software licences and
hardware components (if any) which are not to be assigned to the
Purchaser under the Sale and Purchase of Business Agreement, and
described as firewall and security infrastructure in SCHEDULE 1.
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"FIREWALL AND SECURITY SERVICES" means the services described as
firewall and security services in SCHEDULE 1.
"JUPITERS NETWORK AND/OR DATA CENTRE INFRASTRUCTURE" means the software
and hardware components described as Jupiters network and/or data
centre infrastructure in SCHEDULE 1.
"LOSS" means any and all losses (including direct, indirect, loss of
profit and loss of expected profit), claims, demands, actions,
liabilities, damages, costs, expenses, diminutions in value or
deficiencies of any kind or character including all interest and other
amounts payable to third parties, all liabilities on account of taxes
and all legal (on a full indemnity basis) and other expenses reasonably
incurred in connection with investigating or defending any claims or
actions, whether or not resulting in any liability and all amounts paid
in settlement of claims or actions.
"NETWORK MANAGEMENT SERVICES" means the services described as network
management services in SCHEDULE 1.
"NETWORK AND DATA CENTRE SERVICES " means the services described as
network and data centre services in SCHEDULE 1.
"PEOPLESOFT SOFTWARE" means the financial and ERP software which is
used as at 1 May 2003 in the Business.
"PERSONAL INFORMATION" means any information or opinion about a natural
person (whether or not true), including `personal information' as
defined in the Privacy Act, which is collected or held by the Vendors
or the Purchaser, or that is disclosed by the Purchaser to the Vendors
(or vice versa), in connection with the provision of Services under
this Agreement.
"PRIVACY ACT" means the Privacy Act 1988 (Cth).
"PRIVACY LAW" means, to the extent applicable:
(a) the Privacy Act; and
(b) the National Privacy Principles contained in Schedule 3 to the
Privacy Act or any approved privacy code (as defined in the
Privacy Act) that applies to the Purchaser or the Vendors; and
(c) any other statute, regulation or law in Australia which
relates to the protection of Personal Information and which
the Purchaser or the Vendors must observe.
"PURCHASER'S DATA" means the data provided by the Purchaser under
CLAUSE 5.
"SALE AND PURCHASE OF BUSINESS AGREEMENT" means the document entered
into between Jupiters, Centrebet, the Purchaser and the Guarantor
entitled "Sale and Purchase of Business Agreement".
"SERVICES" means the:
(d) Data Warehouse Services;
(e) Development Services;
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(f) Firewall and Security Services;
(g) Network Services;
(h) Support Services; and
(i) any other services which are provided by or on behalf of the
Vendors to the Purchaser in connection with this Agreement.
"SUPPORT SERVICES" means the services described as support services in
SCHEDULE 1.
"TRANSACTION DOCUMENTS" mean this document, the Sale and Purchase of
Business Agreement and the Centaur Software Assignment and Licence
Agreement.
"TRANSITIONAL PERIOD" means the six month period commencing on
Completion.
"VENDORS" means Jupiters and Centrebet.
1.2 CONSTRUCTION
Unless expressed to the contrary, in this document:
(a) words in the singular include the plural and vice versa;
(b) any gender includes the other genders;
(c) if a word or phrase is defined its other grammatical forms
have corresponding meanings;
(d) the meaning of general words is not limited by specific
examples introduced by "including", "includes" or "for
example", or similar expressions;
(e) no rule of construction will apply to a clause to the
disadvantage of a party merely because that party put forward
the clause or would otherwise benefit from it;
(f) a reference to:
(i) a person includes a partnership, joint venture,
unincorporated association, corporation and a
government or statutory body or authority;
(ii) a person includes the person's legal personal
representatives, successors, assigns and persons
substituted by novation;
(iii) any legislation includes subordinate legislation
under it and includes that legislation and
subordinate legislation as modified or replaced;
(iv) an obligation includes a warranty or representation
and a reference to a failure to comply with an
obligation includes a breach of warranty or
representation;
(v) a right includes a benefit, remedy, discretion or
power;
(vi) time is to local time in Brisbane;
(vii) "$" or "dollars" is a reference to Australian
currency;
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(viii) this or any other document includes the document as
novated, varied or replaced and despite any change in
the identity of the parties;
(ix) writing includes any mode of representing or
reproducing words in tangible and permanently visible
form, and includes fax transmissions;
(x) this document includes all schedules and annexures to
it; and
(xi) a clause, schedule or annexure is a reference to a
clause, schedule or annexure, as the case may be, of
this document; and
(g) where time is to be calculated by reference to a day or event,
that day or the day of that event is excluded.
1.3 HEADINGS
Headings do not affect the interpretation of this document.
2 COMMENCEMENT AND TERM
This document commences on Completion and continues for the
Transitional Period.
3 EFFECT OF FAILURE TO COMPLETE
If any party to the Sale and Purchase of Business Agreement terminates
the Sale and Purchase of Business Agreement before Completion or
Completion does not occur for any reason whatsoever, then:
(a) this Agreement does not commence under Clause 2 and has no
effect whatsoever;
(b) neither Jupiters nor Centrebet will have any obligation to
provide any services under this Agreement including the
Services; and
(c) the Purchaser must immediately return to Jupiters any
software, hardware or other assets or materials which were
provided by Jupiters or Centrebet, but which are in the
Purchaser's possession, power or control.
4 PEOPLESOFT SOFTWARE
(a) Subject to clause 12, the Vendors shall use reasonable
commercial efforts to, prior to Completion, transition the
Business from use of the Peoplesoft Software to other
financial software selected by Jupiters (the "NEW FINANCIAL
SOFTWARE").
(b) The New Financial Software will be acquired at the cost of the
Purchaser and the Purchaser will be responsible for obtaining
the necessary rights to enable the Purchaser to receive and
use the New Financial Software to perform the transition
services described under this clause 4.
(c) The Purchaser agrees and acknowledges that:
(i) the Transaction Documents do not require Jupiters or
Centrebet to secure the assignment or novation of any
rights under the PeopleSoft Software licence or
otherwise to obtain for the Purchaser the right to
use the PeopleSoft Software; and
5
(ii) provision of the transition services described under
this clause is dependant on the Purchaser acquiring
the relevant rights to enable the Vendors to perform
the transition services described under this Clause
and the Purchaser to use the New Financial Software.
5 DATA WAREHOUSE
5.1 ASSIGNMENT OR NOVATION
(a) Subject to paragraph (b), the Purchaser agrees and
acknowledges that the Transaction Documents do not require the
Vendors to assign, novate or transfer to the Purchaser any of
the Data Warehouse Infrastructure.
(b) Subject to Clause 12:
(i) the Vendors will use reasonable commercial efforts to
obtain any necessary third party consents to enable
the use of the Data Warehouse Infrastructure by the
Vendors to provide the Data Warehouse Services to the
Purchaser; and
(ii) in accordance with the Sale and Purchase of Business
Agreement, the Vendors will provide the Purchaser
with such assistance as is reasonably required by the
Purchaser to novate the SAS data analysis tools
licence to the Purchaser,
both at the Purchaser's cost and subject to this Agreement.
5.2 DATA WAREHOUSE SERVICES
Subject to clause 12, during the Transitional Period, the Vendors will
provide the Data Warehouse Services to the Purchaser.
5.3 OWNERSHIP OF PURCHASER'S DATA
(a) The Vendors agree and acknowledge that, notwithstanding the
provision of the Data Warehouse Services, the Purchaser's Data
remains the property of the Purchaser.
(b) Without limiting clause 15.1, the Purchaser at all times
indemnifies and holds harmless the Vendors (jointly and
severally) from and against all actions, claims, charges,
costs, expenses, losses, damages and other liability arising
out of or otherwise in connection with the Purchasers Data and
the provision of Data Warehouse Services.
5.4 CONFIDENTIALITY OF PURCHASER'S DATA
If any Purchaser's Data is provided to the Vendors for the purposes of
providing the Data Warehouse Services, the Vendors will:
(a) not use, reproduce, analyse, run any query on, or produce any
report about that Purchaser's Data, other than in connection
with the Services;
(b) keep that Purchaser's Data confidential; and
6
(c) not disclose that Purchaser's Data to any third party, other
than in connection with the Services.
5.5 COMPLIANCE WITH PRIVACY LAW
The Purchaser will provide the Vendors will such assistance as is
reasonably requested by the Vendors to ensure that the Vendors'
provision of the Services complies with all applicable provisions of
the Privacy Law in relation to Purchaser's Data that is also Personal
Information.
5.6 PURCHASER'S FACILITIES
(a) If the Purchaser requires remote access to the Data Warehouse
System, the Vendors may make remote access to the Data
Warehouse System available to the Purchaser, but only:
(i) on terms and conditions; and
(ii) using the technology, configuration and capacity,
specified by Jupiters in its sole and absolute discretion.
(b) The Purchaser will be responsible, at its cost, for providing
all facilities and equipment (including software and hardware)
necessary for remotely accessing the Data Warehouse System
(including the facilities and equipment required by the
Vendors to provide the remote access service) and ensuring
that those facilities and equipment comply with the
technology, configuration and capacity specified by Jupiters.
(c) Without limiting clause 15.1, the Purchaser at all times
indemnifies and holds harmless the Vendors (jointly and
severally) from and against all actions, claims, charges,
costs, expenses, losses, damages and other liability arising
out of or otherwise in connection with the Purchaser's remote
access to the Data Warehouse System.
5.7 NO WARRANTY
Without limiting clause 15, neither Jupiters nor Centrebet give any
warranties nor make any representations to the Purchaser that the Data
Warehouse Infrastructure or Data Warehouse Services:
(a) will operate or perform to a particular standard or level;
(b) will be continuously available or is capable of continuous
operation;
(c) will perform any particular function;
(d) are error-fee;
(e) will be effective to remedy any particular defect or address
any particular problem or concern; or
(f) will be provided within any particular timeframe.
7
6 TRANSITION OF DATA WAREHOUSE SYSTEM
(a) The Vendors will provide to the Purchaser such assistance as
is described in Schedule 1 to transition the Purchaser from
use of the current Data Warehouse Infrastructure to other data
warehouse infrastructure selected by or designed by or on
behalf of the Purchaser (the "NEW DATA WAREHOUSE
INFRASTRUCTURE").
(b) The New Data Warehouse Infrastructure will be provided by the
Purchaser at its cost and the Purchaser will be responsible
for obtaining the necessary rights (if any) to enable the
Purchaser to use the New Data Warehouse Infrastructure and to
enable the Vendors to provide the services described in
paragraph (a) above.
(c) Notwithstanding any other term of this Agreement, the
Purchaser agrees and acknowledges that the Purchaser assumes
all risk associated with the implementation of the New Data
Warehouse Infrastructure, whether by the Purchaser or by the
Vendors at the request of the Purchaser, including liability
for any defect in performance of the New Data Warehouse
Infrastructure.
(d) Without limiting clause 15.1, the Purchaser at all times
indemnifies and holds harmless the Vendors (jointly and
severally) from and against all actions, claims, charges,
costs, expenses, losses, damages and other liabilities arising
out of or otherwise in connection with the New Data Warehouse
Infrastructure and the use of the New Data Warehouse
Infrastructure.
7 DESKTOP, MESSAGING AND OPERATING SYSTEMS SOFTWARE
7.1 NO ASSIGNMENT OR NOVATION
Subject to Clause 12, the Vendors will use reasonable commercial
efforts to obtain any necessary third party consents to enable the use
of the Rational software development tools, Microsoft Visual SourceSafe
and Lotus Notes clients installed on development PC's (being software
licences which are not to be transferred or assigned to the Purchaser)
by the Purchaser during the Transitional Period, at the Purchaser's
cost and subject to this Agreement.
7.2 NO ADDITIONAL DESKTOP SUPPORT, NETWORK MANAGEMENT OR BACKUP SERVICES
The Purchaser acknowledges and agrees that:
(a) the Alice Springs Centrebet team provides local desktop and
network support and backup services, and that team is to be
offered employment by the Purchaser under the Sale and
Purchase of Business Agreement; and
(b) the Vendors have no other obligation to provide desktop
support, network support or backup services to the Purchaser,
including in respect of the Centrebet development team, and
the Purchaser must make its own arrangements in relation to
desktop support, network support and backup for the Centrebet
development team.
8
8 FIREWALL AND SECURITY INFRASTRUCTURE AND SERVICES
8.1 NO ASSIGNMENT OR NOVATION
(a) The Purchaser agrees and acknowledges that the Transaction
Documents do not require Jupiters or Centrebet to secure the
transfer, assignment or novation of any of the Firewall and
Security Infrastructure to the Purchaser.
(b) Subject to Clause 12, the Vendors will use reasonable
commercial efforts to obtain any necessary third party
consents to enable the use of the Firewall and Security
Infrastructure by the Vendors to provide the Firewall and
Security Services, at the Purchaser's cost and subject to this
Agreement.
8.2 FIREWALL AND SECURITY SERVICES
Subject to clause 12, during the Transitional Period, the Vendors will
provide the Firewall and Security Services to the Purchaser.
8.3 NO WARRANTY
Without limiting clause 15, neither Jupiters nor Centrebet give any
warranties nor make any representations to the Purchaser that the
Firewall and Security Infrastructure or the Firewall and Security
Services:
(a) will operate or perform to a particular standard or level;
(b) will be continuously available or is capable of continuous
operation;
(c) will perform any particular function;
(d) are error-fee;
(e) will be effective to remedy any particular defect or address
any particular problem or concern; or
(f) will be provided within any particular timeframe.
9 NETWORK AND DATA CENTRE SERVICES AND INFRASTRUCTURE
9.1 NO ASSIGNMENT
(a) The Purchaser agrees and acknowledges that the Transaction
Documents do not require Jupiters or Centrebet to transfer or
assign any of the Jupiters' Network and/or Data Centre
Infrastructure to the Purchaser.
(b) Subject to Clause 12, the Vendors will use reasonable
commercial efforts to obtain any necessary third party
consents to enable the use of the Jupiters' Network and/or
Data Centre Infrastructure by the Vendors to provide the
Network Services, at the Purchaser's cost and subject to this
Agreement.
9.2 NETWORK AND DATA CENTRE SERVICES
Subject to clause 12, during the Transitional Period, the Vendors will
provide the Network and Data Centre Services to the Purchaser.
9
9.3 NO WARRANTY
Without limiting clause 15, neither Jupiters nor Centrebet give any
warranties nor make any representations to the Purchaser that the
Jupiters Network and/or Data Centre Infrastructure or the Network and
Data Centre Services:
(a) will operate or perform to a particular standard or level;
(b) will be continuously available or is capable of continuous
operation;
(c) will perform any particular function;
(d) are error-fee;
(e) will be effective to remedy any particular defect or address
any particular problem or concern; or
(f) will be provided within any particular timeframe.
10 SUPPORT AND DEVELOPMENT
10.1 REASONABLE ASSISTANCE
Subject to Clause 12, the Vendors will use reasonable commercial
efforts to obtain any necessary third party consents to enable the use
of any third party software by Jupiters to provide the Support and
Development Services, at the Purchaser's cost and subject to this
Agreement.
10.2 SUPPORT AND DEVELOPMENT SERVICES
Subject to clause 12, during the Transitional Period, the Vendors will
provide the Purchaser with the Support Services and the Development
Services.
10.3 NO WARRANTY
Without limiting clause 15, neither Jupiters nor Centrebet give any
warranties nor make any representations to the Purchaser that the
Support Services or the Development Services:
(a) will operate or perform to a particular standard or level;
(b) will be continuously available or is capable of continuous
operation;
(c) will perform any particular function;
(d) are error-fee;
(e) will be effective to remedy any particular defect or address
any particular problem or concern; or
(f) will be provided within any particular timeframe.
10
11 CHARGES
The Purchaser agrees to pay the Charges to Jupiters in accordance with
the procedure set out in Schedule 2.
The Charges do not include GST. Jupiters may recover from the Purchaser
an amount on account of GST, in addition to the Charges, calculated at
the prevailing GST rate. That additional amount is payable at the same
time and in the same manner as the relevant Charge. Jupiters must issue
a tax invoice to the Purchaser in relation to each Charge.
In this clause, "GST" means the goods and services tax imposed under
the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
12 CESSATION OF SERVICES
If, prior to or during the Transitional Period, either Jupiters or
Centrebet (or both) determine (in their sole and absolute discretion)
that provision of the Services or any aspect of the services would:
(a) breach any agreement with a third party; or
(b) contravene any common law, statute, regulation, order, rule,
subordinate legislation or other document enforceable under
any statute, regulation, order, rule or subordinate
legislation,
then:
(c) the Vendors may immediately cease to provide the Services or
that aspect of the Services connected to the breach or
contravention; and
(d) the Purchaser agrees and acknowledges that the Vendors
(jointly and severally) will have no liability to it in
respect of, or in connection with, the cessation of that
aspect of the Services.
13 TERMINATION
Either Jupiters or the Purchaser ("the first party") may terminate this
Agreement immediately, by notice in writing to the other ("the other
party"), if:
(a) the other party breaches any material obligation to be
observed or performed by it under this Agreement, which breach
is capable of remedy, and that breach continues for a period
of at least 10 Business Days (or such longer time as may be
nominated in the notice) after written notice of the breach is
given by the first party to the other party;
(b) the other party breaches any material obligation to be
observed or performed by it under this Agreement, which breach
is incapable of remedy;
(c) the other party assigns or purports to assign its interest
under this Agreement or does anything which has a similar
effect, in breach of clause 17.10 of this Agreement and fails
to rectify the breach for a period of at least 10 Business
Days (or such longer time as may be nominated in the notice)
after written notice of the breach is given by the first
party;
11
(d) any third party claim is brought against the Vendors (jointly
or severally) for infringement of any third party's rights in
connection with the provision of the Services by the Vendors
to the Purchaser arising out of, or in connection with:
(i) compliance by any one of the Vendors with a specific
direction given by the Purchaser to one or more of
the Vendors in relation to the provision of the
Services to the Purchaser where, as a direct result
of such compliance, the third party claim is made;
(ii) information provided or a representation made by the
Purchaser to one or more of the Vendors in relation
to the provision of the Services by the Vendors to
the Purchaser;
(iii) use of the Services or a product of the Services by
the Purchaser for a purpose outside the intended
purpose for which they were provided; or
(iv) any act or omission of, or on behalf of, the
Purchaser in relation to the Services that
contravenes the terms of this Agreement;
(e) Jupiters or Centrebet (or both) exercise their rights to cease
provision of the Services under clause 12;
(f) the Purchaser:
(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 Act;
(iii) must be presumed by a court to be insolvent by reason
of section 459C(2) of the Corporations Act;
(iv) fails to comply with a statutory demand (within the
meaning of section 459F(1) of the Corporations Act);
(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 Act or similar officer appointed to
all or any of its assets or undertaking;
(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 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) enters into any formal arrangement or composition
with its creditors generally.
12
14 CONFIDENTIALITY
Any information exchanged between the parties under this document or
during the negotiations of the parties is confidential to them and may
not be disclosed to any person except:
(a) if required by law;
(b) to officers, employees, agents and contractors to the extent
that they need to know the information for purposes related to
this document and on condition that they agree to be bound by
the terms of this clause;
(c) with the consent of the party who supplied the information;
(d) if the information is in the public domain at the date of this
document, or comes into the public domain after the date of
this document other than as a result of a breach of this
document or other breach of confidence;
(e) if the information is already known or in the possession of
the recipient without restrictions relating to disclosure
before the date of receipt; or
(f) if the information is obtained from a source other than the
party who supplied the information, provided that the source
was not subject to any prohibition against disclosure.
15 WARRANTIES AND LIABILITY
15.1 INDEMNITY
The Purchaser at all times indemnifies and holds harmless the Vendors
(jointly and severally) from and against all actions, claims, charges,
costs, expenses, losses, damages and other liability arising out of or
otherwise in connection with any and all:
(a) wilful, unlawful or negligent acts or omissions of or on
behalf of the Purchaser;
(b) breaches or alleged breaches of any third party's rights in
connection with the provision of the Services by the Vendors
to the Purchaser arising out of, or in connection with:
(i) compliance by any one of the Vendors with a specific
direction given by the Purchaser to one or more of
the Vendors in relation to the provision of the
Services to the Purchaser where, as a direct result
of such compliance, the actions or claims are brought
or charges, costs, expenses, losses, damages or other
liability incurred;
(ii) information provided or a representation made by the
Purchaser to the Vendors in relation to the provision
of the Services by the Vendors to the Purchaser;
(iii) use of the Services or a product of the Services by
the Purchaser for a purpose outside the intended
purpose for which they were provided; or
(iv) any act or omission of, or on behalf of, the
Purchaser in relation to the Services that
contravenes the terms of this Agreement;
13
(c) claims and actions brought against Jupiters or Centrebet
(jointly or severally) in connection with the provision of the
Services by the Vendors to the Purchaser arising out of, or in
connection with:
(i) compliance by any one of the Vendors with a specific
direction given by the Purchaser to one or more of
the Vendors in relation to the provision of the
Services to the Purchaser where, as a direct result
of such compliance, the actions or claims are brought
or charges, costs, expenses, losses, damages or other
liability incurred;
(ii) information provided or a representation made by the
Purchaser to the Vendors in relation to the provision
of the Services by the Vendors to the Purchaser; or
(iii) use of the Services or a product of the Services by
the Purchaser for a purpose outside the intended
purpose for which they were provided; or
(iv) any act or omission of, or on behalf of, the
Purchaser in relation to the Services that
contravenes the terms of this Agreement;
(d) personal injury and loss or damage to property caused or
contributed to or by an act or omission of or on behalf of the
Purchaser in connection with this Agreement; and
(e) actions, claims, charges, costs, expenses, losses, damages and
other liability arising out of or in connection with any
breach or non-observance by the Purchaser of this Agreement.
15.2 LIMITATION OF LIABILITY
Subject to Clause 15.3 and to the maximum extent possible, neither
Jupiters nor Centrebet is liable to the Purchaser for any Loss incurred
by the Purchaser which results directly or indirectly as a result of,
or in connection with, this Agreement, however caused including by any
negligent act or omission by Jupiters or Centrebet, their officers,
employees, agents or contractors.
15.3 WARRANTIES
(a) The Purchaser warrants to the Vendors (jointly and severally)
that the Vendors' performance of the Services as a result of:
(i) the direct result of compliance by any one of the
Vendors with a specific direction given by the
Purchaser to one or more of the Vendors in relation
to the provision of the Services to the Purchaser;
(ii) information provided or a representation made by the
Purchaser to the Vendors in relation to the provision
of the Services by the Vendors to the Purchaser;
(iii) any use of the Services or a product of the Services
by the Purchaser for a purpose outside the intended
purpose for which they were provided; or
(iv) any act or omission of, or on behalf of, the
Purchaser in relation to the Services that
contravenes the terms of this Agreement,
14
will not infringe any rights of any third party, including
contractual, intellectual property or moral rights.
(b) Subject to paragraph (c), and to the maximum extent possible,
all conditions, warranties and terms not expressly contained
in this document, whether implied by operation of law,
inference from circumstances, industry practice or otherwise,
are excluded.
(c) If any term, warranty or condition is implied by law into this
Agreement which by law cannot be excluded, but may be limited,
the liability of the Vendors for any breach of any such term,
condition or warranty (including, without limitation, to any
person claiming through the Purchaser) is limited, at the
option of Jupiters or Centrebet (as the case may be), to:
(i) in the case of goods,
(A) the replacement of the goods or the supply
of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the
goods or acquiring equivalent goods; or
(D) the payment of the cost of having the goods
repaired; or
(ii) in the case of services,
(A) the supply of the goods again; or
(B) the payment of the cost of having the
services supplied again.
16 PURCHASER'S ASSUMPTION OF RISK
The Purchaser agrees and acknowledges that it:
(a) exercises its rights under this document at its own risk; and
(b) assumes all risk for all Loss incurred by the Purchaser, or
any other person, which results directly or indirectly from
any product or service provided under this Agreement.
17 MISCELLANEOUS
17.1 STAMP DUTY
(a) The Purchaser shall, as between the parties, be liable for and
duly pay all stamp duty (including any fine or penalty but
excluding any financial institutions duty) on or relating to
this document and any document executed under it.
(b) If a party other than the Purchaser pays any stamp duty
(including any fine or penalty but excluding any financial
institutions duty) on or relating to this document or any
document executed under it, the Purchaser shall pay that
amount to that party upon demand.
15
17.2 LEGAL COSTS
Unless otherwise stated, each party shall bear its own legal and other
costs and expenses relating directly or indirectly to the preparation
of, and performance of its obligations under, this document.
17.3 AMENDMENT
This document may only be varied or replaced by a document in writing
duly executed by the parties.
17.4 WAIVER AND EXERCISE OF RIGHTS
(a) A single or partial exercise or waiver of a right relating to
this document will not prevent any other exercise of that
right or the exercise of any other right.
(b) A party will not be liable for any Loss of any other party
caused or contributed to by the waiver, exercise, attempted
exercise, failure to exercise or delay in the exercise of a
right.
17.5 RIGHTS CUMULATIVE
Subject to any express provision in this document to the contrary, the
rights of a party under this document are cumulative and are in
addition to any other rights of that party.
17.6 APPROVALS AND CONSENT
Subject to any express provision in this document to the contrary, a
party may conditionally or unconditionally give or withhold any consent
to be given under this document and is not obliged to give its reasons
for doing so.
17.7 FURTHER ASSURANCE
Each party shall promptly execute all documents and do all things that
any other party from time to time reasonably requires of it to effect,
perfect or complete the provisions of this document and any transaction
contemplated by it.
17.8 GOVERNING LAW
This document is governed by and is to be construed in accordance with
the laws applicable in Queensland, Australia.
17.9 JURISDICTION
Each party:
(a) irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Queensland, Australia and any
courts which have jurisdiction to hear appeals from any of
those courts; and
(b) waives any right to object to any proceedings being brought in
those courts for any reason.
16
17.10 ASSIGNMENT
(a) Subject to paragraph (b), no party may assign any right under
this document without the prior written consent of the other
parties.
(b) Centrebet may assign all of its title and interest in this
Agreement and its rights under this Agreement to Jupiters by
written notice to the Purchaser.
17.11 COUNTERPARTS
This document may consist of a number of counterparts and if so the
counterparts taken together constitute one and the same instrument.
17.12 JOINT AND SEVERAL LIABILITY
An obligation of two or more persons binds them jointly and severally.
17.13 EFFECT OF EXECUTION
This document is not binding on any party unless it or a counterpart
has been duly executed by, or on behalf of, each person named as a
party to the document.
17.14 ENTIRE AGREEMENT
The Purchaser acknowledges to the Vendors that (except for the specific
warranties made by them in this document and the Sale and Purchase of
Business Agreement):
(a) it has entered into this document relying entirely upon its
own independent appraisal and assessment of the Centaur
Software;
(b) it does not rely on any inference that may be drawn from any
record or statement as to the affairs of Jupiters or
Centrebet;
(c) it does not rely on any account, letter, document,
correspondence or arrangements whether oral or in writing as
adding to or amending the terms and arrangements set out in
this document and that the conditions and stipulations in this
document constitute the only agreement between the parties;
(d) it does not rely upon any warranty, statement or
representation made or given by or on behalf of Jupiters or
Centrebet;
(e) it is fully aware of the contents of this document and the
documents referred to in this document; and
(f) to the fullest extent possible waives any possible cause of
action or rights it may have under or in respect of Part V of
the Trade Practices Act 1974 or any other legislation which is
to any extent similar to such Part V or any portion of such
legislation touching or concerning anything the subject or
incidental to this document and releases and indemnifies to
the fullest extent possible the Vendors (jointly and
severally) and all persons or entities associated with the
Vendors from and against (as the case may be) any claim or
liability (if any) arising out of or incidental to any such
cause of action or right or any like cause of action or right
of any other person or entity whatsoever.
17
18 NOTICES
18.1 GENERAL
A notice, demand, certification or other communication under this
document:
(a) shall be given in writing and in the English language; and
(b) may be given by an agent of the sender.
18.2 METHOD OF SERVICE
In addition to any means authorised by law a communication may be given
by:
(a) being delivered personally;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by
pre-paid ordinary mail or if the address is outside Australia,
by pre-paid air mail; or
(d) facsimile to the party's current facsimile number.
18.3 ADDRESS FOR SERVICE
(a) The addresses and facsimile numbers are initially:
(i) in the case of the Purchaser:
[INSERT]
Tel: [INSERT]
Fax: [INSERT]
Attention: [INSERT]
(ii) in the case of the Vendors:
JUPITERS LIMITED
Level 9, Niecon Tower
17 Victoria Avenue
Broadbeach Queensland 4218
Fax No: (07) 5571 2194
Attention: The Company Secretary
CENTREBET PTY LTD
Level 9, Niecon Tower
17 Victoria Avenue
Broadbeach Queensland 4218
Fax No: (07) 5571 2194
Attention: The Company Secretary
(b) A party may from time to time change its address or numbers
for service by notice to the other party.
18
18.4 SERVICE BY POST
A communication given by post is to be taken to be received:
(a) if posted within Australia to an Australian address on the
third Business Day after posting; and
(b) in any other case, on the seventh Business Day after posting.
18.5 SERVICE BY FACSIMILE
A communication given by facsimile is deemed received when the sender's
facsimile machine produces a transmission report stating that the
facsimile was sent to the addressee's facsimile number.
18.6 FORM RECEIVED
A communication given by facsimile is to be taken to be given in the
form transmitted unless the message is not fully received in legible
form and the addressee immediately notifies the sender of that fact.
18.7 PROCESS SERVICE
Any process or other document relating to litigation, administrative or
arbitral proceedings in relation to this document may be served by any
method contemplated by this clause in addition to any means authorised
by law.
18.8 SERVICE AFTER HOURS
If a communication to a party is received by it:
(a) after 5.00 pm in the place of receipt; or
(b) on a day which is not a Business Day,
it is to be taken to have been received at the commencement of the next
Business Day.
19
SCHEDULE 1
SERVICES AND INFRASTRUCTURE
[THE DESCRIPTION OF SERVICES INCLUDED IN THIS SCHEDULE IS NOT YET COMPLETE. AS
THE DESCRIPTION OF SERVICES IS PROGRESSED BETWEEN JUPITERS AND THE PURCHASER,
THE SCHEDULE IS SUBJECT TO FURTHER REVIEW BY TABCORP HOLDINGS LTD. VARIATIONS TO
THIS SCHEDULE MAY ONLY BE MADE WITH TABCORP HOLDINGS LTD'S PRIOR AGREEMENT.
TABCORP HOLDINGS LTD SHALL ACT REASONABLY IN RELATION TO ANY SUCH REVIEW AND
VARIATION, AND SHALL NOT UNREASONABLY REFUSE TO AGREE TO ANY SUCH VARIATION.]
DATA WAREHOUSE SERVICES
Before Completion, Data Warehouse Services are provided by the Jupiters
Technology Centrebet team. Under the Sale and Purchase of Business Agreement,
the Purchaser is to offer employment to the individuals comprising that team.
The Vendors, through Jupiters Technology, will provide up to 12 hours per month
consulting support in the operation of the Data Warehouse to the Purchaser.
Those services will be provided for a period of 6 months following Completion.
A reasonable level of transitional services in relation to the data warehouse
will also be provided at the hourly rate described in Schedule 2.
DESKTOP AND NETWORK MANAGEMENT SUPPORT
No desktop or network management support services are to be provided by the
Vendors to the Purchaser.
BACKUP
No backup services are to be provided by the Vendors to the Purchaser.
FIREWALL AND SECURITY SERVICES
Before Completion, firewall and security is a shared responsibility between the
existing Alice Springs Centrebet team and the Jupiters Level 2 support team.
Under the Sale and Purchase of Business Agreement, the Purchaser is to offer
employment to the individuals comprising the existing Alice Springs Centrebet
team, but not the Level 2 support team.
After Completion, the Vendors, through Jupiters Technology's Level 2 support
team, will provide up to 16 hours per month of Firewall and Security Services,
comprising the services which that team provided prior to Completion. Those
services will be provided for a period of 6 months following Completion.
20
FIREWALL AND SECURITY INFRASTRUCTURE
[The Purchaser will be granted a reasonable level of access to the existing
Firewall and Security Infrastructure used by the business for a period of 6
months following Completion, at charges described in Schedule 2 (to be agreed).
Note that this depends on the Purchaser's approach.]
JUPITERS NETWORK AND DATA CENTRE SERVICES
[Once agreed, the Jupiters Network and Data Centre Services to be provided will
be described under this section at the charges described in Schedule 2 (to be
agreed).]
JUPITERS NETWORK AND/OR DATA CENTRE INFRASTRUCTURE
[The Purchaser will be granted a reasonable level of access to the existing
Network and/or Data Centre Infrastructure used by the business for a period of
up to 6 months following Completion, at charges described in Schedule 2 (to be
agreed). Note that this depends on the Purchaser's approach.]
DEVELOPMENT SERVICES
Before Completion, Development Services are provided by the Centrebet
development team. Under the Sale and Purchase of Business Agreement, the
Purchaser is to offer employment to the members of that team. That team will be
the Purchaser's principal development resource.
In relation to the Cougar product, the Vendors, through Jupiters Technology,
will provide:
(a) advice and consultancy on the Cougar product; and
(b) level 3 Support for the Cougar product,
for up to 12 hours per month. These services will be provided for a period of 6
months following Completion.
The Vendors, through Jupiters Technology, will provide Cougar core components
updates (including patches, bug-fixes and updates) to the Purchaser, as an when
released by the Cougar development team, for a period of 6 months following
Completion.
The Vendors, through Jupiters Technology, will also provide 5 days of training
in relation to the Cougar product, on dates agreed between Jupiters Technology
and the Purchaser within 6 months after Completion.
SUPPORT SERVICES
The scope of Level 2 Support and Help Desk services provided to Centrebet before
Completion is as follows:
- - Co-location
If required by the Purchaser, the Vendors (through Jupiters Technology)
will allow network and/or data centre infrastructure assets assigned to
the Purchaser under the Sale and Purchase of Business Agreement, and
which are located at the premises of Jupiters
21
Technology at Completion, to remain located at the premises of Jupiters
Technology for a period of up to 6 months following Completion.
- - Proactive:
- Wide area network monitoring - end-to-end connectivity;
- Centaur monitoring - back-end processing;
- Network component monitoring, middleware monitoring;
- Database growth and health monitoring;
- Web services monitoring;
- Change control management;
- Pre-emptive maintenance;
- Monthly reporting.
- - Learned Activities:
- Knowledgebase library;
- Process and procedure review;
- Site support;
- Platform support.
- - Reactive:
- Fault response centre;
- Resolution tracking;
- Escalation services;
- Technical assistance;
- Outage reporting
Following Completion, the Vendors, through Jupiters Technology, will continue to
provide proactive monitoring of the Commercial Centrebet products, and
management of the restoration of service outages, on a 24 x 7 basis, for up to
250 hours per month. This service will be provided for a period of 6 months
following Completion.
The Vendors, through Jupiters Technology, may vary the extent of, or the charge
for, this service, if the software or systems used by the business are modified.
The Vendors, through Jupiters Technology, will also provide training to the
Purchaser with the aim of allowing the Purchaser to become self-reliant in Level
2 Support and Help Desk support within 6 months after Completion.
The training contemplated by this agreement is practical, on-the-job experience
rather than formal teaching, and will be achieved by allowing the Purchaser's
Level 2 support personnel to work alongside Jupiters Technology's Level 2
support personnel for a period of 2 months, on dates agreed between the
Purchaser and Jupiters Technology within 6 months after completion.
22
SCHEDULE 2
CHARGES
SERVICE CHARGE
- --------------------------------------- -------------
Data Warehouse Consulting Support $ 1,200/month
Additional Consulting Services eg. Data $ 100/hour
Warehouse transitional services
Firewall and Security Services $ 1,600/month
Network and Data Centre Services [to be agreed]
Level 2 Support $ 25,000/month
Development and Level 3 Support $ 1,200/month
Training No charge
[THE CHARGES LISTED IN THIS SCHEDULE ARE NOT YET COMPLETE. ALL SERVICES ARE TO
BE PROVIDED ON AT LEAST A FULL COST RECOVERY BASIS. AS THE DESCRIPTION OF
SERVICES IS PROGRESSED BETWEEN JUPITERS AND THE PURCHASER, THESE CHARGES ARE
SUBJECT TO FURTHER REVIEW BY TABCORP HOLDINGS LTD. VARIATIONS TO THIS SCHEDULE
MAY ONLY BE MADE WITH TABCORP HOLDINGS LTD'S PRIOR AGREEMENT. TABCORP HOLDINGS
LTD SHALL ACT REASONABLY IN RELATION TO ANY SUCH REVIEW AND VARIATION, AND SHALL
NOT UNREASONABLY REFUSE TO AGREE TO ANY SUCH VARIATION.]
EXECUTED as an agreement.
EXECUTED by JUPITERS LIMITED )
)
________________________________________ ______________________________
Company Secretary/Director Director
________________________________________ ______________________________
Name of Company Secretary/Director (print) Name of Director (print)
EXECUTED by CENTREBET PTY LTD )
by its duly appointed officer )
in the presence of: )
________________________________________ ______________________________
Witness Officer
________________________________________ ______________________________
Name of Witness (print) Name of Officer (print)
EXECUTED by [PURCHASER] by its )
duly appointed officer in the )
presence of: )
________________________________________ ______________________________
Witness Officer
________________________________________ ______________________________
Name of Witness (print) Name of Officer (print)