Exhibit 3(8)
THIS DEED is made on the day of 1998
BETWEEN:
DYNAMIC DIGITAL DEPTH (AUSTRALIA) PTY LTD (ACN 060 154 949) of 41 Walters Drive
Herdsman Business Park, Osborne Park in the State of Western Australia ("DDD");
- - and -
BOSTON TOWER PTY LTD (ACN 071 187 187) of 11 Grove End Ridge, Mt Claremont in
the said State ("the Owner")
WHEREAS:
A. The Owner owns the Land.
B. By the Original Contract, DDD agreed to purchase and the Owner agreed
to sell the Land.
C. DDD and the Owner have agreed to cancel the Original Contract and the
Owner has agreed to grant and DDD has agreed to take a lease of the
Land on the terms and conditions contained in the Lease and the Owner
has further agreed to grant to DDD an option to purchase the Land and
DDD has agreed to grant to the Owner an option to sell the Land to DDD
and/or its nominee.
D. The parties have entered into this Deed in order to record the terms of
their agreement.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. DEFINITIONS
1.1 In this Deed unless a contrary intention appears:
1.1.1 "Call Option" means the option granted under clause
3.1;
1.1.2 "Commencement Date" means date of execution of this
Deed by the
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1.1.3 parties; "Contract" means the contract for the sale
and purchase of the Land attached and marked
Schedule 5 of this Deed;
1.1.4 "Expiry Date" means 30 November 1999 or any later
date the parties may agree to in writing;
1.1.5 "Land" means the land specified in Schedule 1 of this
Deed;
1.1.6 "Lease" means the lease executed contemporaneously
with this Deed made between DDD as lessee and the
Owner as lessor in respect of the Land;
1.1.7 "Option Fee" means the sum of Five Hundred Thousand
Dollars ($500,000.00) to be paid by DDD to the Owner
in accordance with clause 3.1;
1.1.8 "Original Contract" means the Contract for Sale of
Land by Offer and Acceptance dated 14 August 1998
made between the Owner and DDD whereby the Owner
agreed to sell and DDD agreed to buy the Land on the
terms covenants and conditions contained therein as
amended.
1.1.9 "Purchase Price" means Two Million Dollars
($2,000,000.00);
1.1.10 "Put Option" means the option granted under clause
4.1; and
1.2 In the interpretation of this Deed unless repugnant to the
sense or context:
1.2.1 a reference to any statute or act includes all
statutes and acts (State or
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Federal) for the time being enacted amending
consolidating modifying or replacing any statutes
and all regulations by-laws requisitions or orders
made under any statute from time to time by any
statutory public or other competent authority and
any statutes or acts enacted in substitution for
any statute or act;
1.2.2 references to sections shall be references to all the
clauses under the heading of the section to which the
reference relates;
1.2.3 where 2 or more persons are parties hereto the
covenants and agreements on their part shall bind
them and any 2 or greater number of them jointly and
severally; and
1.2.4 a reference to any Party shall include a reference to
their assigns and successors or legal personal
representatives as the case may be.
2. CANCELLATION OF ORIGINAL CONTRACT
2.1 The parties mutually covenant and agree that immediately upon
the date of execution of this Deed the Original Contract shall
be deemed to have come to an end and the deposit and all other
moneys (if any) paid pursuant to the Original Contract shall
be then refunded to DDD and there shall be no further claim
under the Original Contract by either party, agent or other
person at law or in equity.
3. CALL OPTION
3.1 CALL OPTION
In consideration of payment by DDD to the Owner of the Option
Fee which shall be paid immediately on the Commencement Date
the Owner grants to
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DDD and/or its nominee the irrevocable option to purchase the
Land for the Purchase Price free from all encumbrances (save
and except the restrictive covenant contained in Transfer
G548183 and Easement G708737 upon the terms and conditions set
out in the Contract.
3.2 EXERCISE OF CALL OPTION
The Call Option may only be exercised at any time during the
period commencing on the Commencement Date and expiring at
5.00pm on the Expiry Date by DDD and/or its nominee serving on
the Owner a notice signed on behalf of DDD and/or its nominee
in the form or to the effect of the form of notice set out in
Schedule 2 of this Deed.
4. PUT OPTION
4.1 In consideration of the payment by the Owner to DDD of the sum
of $1.00 simultaneously with the signing of this Deed, the
receipt of which DDD acknowledges, DDD grants to the Owner the
irrevocable option to require DDD and/or its nominee to
purchase the Land for the Purchase Price free from all
encumbrances (save and except the restrictive covenant
contained in Transfer G548183 and Easement G708737 upon the
terms and conditions set out in the Contract.
4.2 EXERCISE OF PUT OPTION
The Put Option may only be exercised at any time during the
period commencing on 1 December 1999 and expiring at 5.00pm on
14 December 1999 by the Owner serving on DDD a notice signed
by the Owner in the form or to the effect of the form of
notice set out in Schedule 4 of this Deed.
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5. NOTICE OF NOMINATION
5.1 Subject to clause 9.3.1 and specifically the requirement
contained in clause 9.3.1.2 for the nominee to exercise the
Call Option, if at anytime prior to the Expiry Date and at or
prior to the exercise by DDD of the Call Option or the
exercise by the Owner of the Put Option DDD shall serve on the
Owner a notice signed on behalf of DDD in the form or to the
effect of the form of notice set out in Schedule 3 of this
Deed advising of the name and address of DDD's nominee,
thereafter for all purposes of this Deed the nominee shall be
substituted for DDD as if the nominee had been named in this
Deed as a party in lieu of DDD and all references to DDD in
this Deed shall thereafter be deemed to be references to DDD's
nominee.
6. EFFECT OF THE EXERCISE OF AN OPTION
If either DDD and/or its nominee (as the case may be) exercises the
Call Option or the Owner exercises the Put Option, a contract shall be
and be deemed to be created pursuant to which the Owner is bound to
sell the Land to DDD and/or its nominee (as the case may be) and DDD
and/or its nominee (as the case may be) is bound to purchase the Land
for the Purchase Price and on the terms of the Contract and the
settlement date shall be the date provided in the Contract.
7. OPTION FEE
The Option Fee shall be non-refundable and upon payment shall belong to
the Owner absolutely and whether or not the Call Option or the Put
Option is exercised and nothing contained in this Deed in general or
the provisions of clause 5 and clause 9.3 in particular if acted upon
by DDD shall oblige the Owner to repay the whole or any part of the
Option Fee to DDD or any of its nominees or assignees.
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8. GENERAL CONDITIONS
The Joint Form of General Conditions for the Sale of Land, 1998
revision shall be incorporated in and deemed to be part of the Contract
except to the extent that they are varied by or inconsistent with the
terms of this Deed or the express terms of the Contract.
9. MISCELLANEOUS
9.1 NOTICES
All notices to be given by or pursuant to this Deed in general
and any notices pursuant to clauses 3.2 and 4.2 in particular
shall be given in writing and either personally served or sent
by registered post addressed as follows:-
DDD:
To: Dynamic Digital Depth (Australia) Pty Ltd
Address: 41 Walters Drive
Herdsman Business Park
OSBORNE PARK WA 6017
THE OWNER:
To: Boston Tower Pty Ltd
Address: 11 Grove End Ridge
Mt Claremont WA 6110
Notices shall be deemed served or given:-
9.1.1 if personally served, by being left at the address of
the party to whom the notice is given between the
hours of 9.00am and 5.00pm on which all banks are
open for business in Western Australia, then in such
case at the time the notice is so delivered;
9.1.2 if sent by registered post 72 hours after the time of
posting.
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Any party may change its address for receipt of notices at any
time by giving notice of such change to the other party. Any
notice given under this Deed may be signed on behalf of any
party by the duly authorised representative of that party and
shall be sent to all other parties to this Deed.
9.2 FURTHER ASSURANCES
Each party covenants and agrees with the other that it will
make execute do and sign all further acts, deeds, matters and
things as may give effect to the terms, covenants, condition
and intentions of this Deed provided that DDD shall indemnify
the Owner against all expenses reasonably incurred by the
Owner in complying with the requirements of this clause.
9.3 ASSIGNMENT
9.3.1 DDD has the right to assign all of its rights,
obligations or benefits under this Deed by giving
written notice of nomination in the form of
Schedule 3 to the Owner at any time subject to:
9.3.1.1 the Owner's consent which consent
shall not be unreasonably withheld
and the Owner shall promptly
consider DDD's application for that
consent and provide its response to
DDD within 14 days from the date of
DDD's request; and
9.3.1.2 the nominee specified in the written
notice of nomination exercising the
Call Option in accordance with
clause 3 contemporaneously with the
giving of the written notice of
nomination provided that the
exercise of the Call Option shall
not be effective unless and until
the Owner
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has consented to the assignment as
required by Clause 9.3.1.1.
9.3.2 The Owner may only assign all (but not part) of
its rights obligations and benefits under this
Deed in the Land subject to first procuring the
assignee to enter into a deed with DDD to be
prepared by DDD at the cost of the Owner pursuant
to which the assignee covenants with DDD to be
bound by the terms of this Deed.
9.3.3 The Owner may only assign all (but not only part)
of its rights obligations and benefits under this
Deed in the Land subject to first procuring the
assignee to enter into a deed with DDD to be
prepared by DDD at the cost of the Owner pursuant
to which the assignee covenants with DDD to be
bound by the terms of this Deed.
9.4 TERMINATION OF LEASE
Notwithstanding clause 3, if the Lease is at any time
terminated pursuant to clause 5.2 of the Lease then clause 3
and 4 of this Deed shall not apply and DDD shall not be
entitled to exercise the Call Option and the owner shall not
be entitled to exercise the Put Option provided that the owner
shall be entitled to keep the Option Fee absolutely in
accordance with clause 7.
9.5 PROPER LAW
The Laws of the State of Western Australia and where
applicable the Commonwealth of Australia shall apply to this
Deed and the parties submit to the jurisdiction of the courts
of Western Australia and the courts having jurisdiction to
hear appeals therefrom.
9.6 COSTS
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DDD shall pay the Owner's reasonable legal costs and expenses
incurred by the Owner in connection with the preparation and
negotiation of this Deed and of any related documentation
provided for by this Deed together with all reasonable and
proper disbursements incurred by the Owner's solicitors in
connection with those matters and DDD shall pay all stamp duty
assessed in respect of this Deed and documentation associated
with this Deed hereon.
Executed as a Deed
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THE COMMON SEAL of )
DYNAMIC DIGITAL DEPTH )
(AUSTRALIA) PTY LTD )
(ACN 060 154 949) )
was hereunto affixed by )
authority of the Directors )
in the presence of: )
Director:
Director/Secretary:
THE COMMON SEAL of )
BOSTON TOWER PTY LTD )
(ACN 071 187 187) )
was hereunto affixed by )
authority of the Directors )
in the presence of: )
Director:
Director/Secretary:
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SCHEDULE 1
LAND
6-8 Brodie-Hall Drive Technology Park, Bentley more particularly described as
part of lot 53 on Diagram 74187 and being the whole of the land comprised in
Certificate of Title Volume 2103 Folio 138.
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SCHEDULE 2
FORM OF NOTICE OF EXERCISE OF CALL OPTION
NOTICE OF EXERCISE OF CALL OPTION
This notice is delivered by (Dynamic Digital Depth (Australia) Pty Ltd (ACN
060 154 949) ("DDD") (or the nominees name if appropriate) ("the Nominee") in
terms of the Deed dated the day of 1998 made between Boston Tower Pty
Ltd and DDD.
(DDD or the nominee if appropriate) gives notice to Boston Tower Pty Ltd under
clause 3.2 of that Deed that it exercises the Option to purchase the Land as
defined in and in accordance with the provisions of the Deed.
Dated the day of 199
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SCHEDULE 3
FORM OF NOTICE OF NOMINATION
NOTICE OF NOMINATION
This notice is delivered by Dynamic Digital Depth (Australia) Pty Ltd (ACN 060
154 949) ("DDD") in terms of the Deed dated the day of 1998 made between Boston
Tower Pty Ltd ("the Owner"), and DDD ("the Deed").
DDD hereby irrevocably notifies the Owner that DDD has nominated
_________________ to the exclusion of DDD as its nominee for the purposes of the
Deed.
Dated the day of 199
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THE COMMON SEAL of )
DYNAMIC DIGITAL DEPTH )
(AUSTRALIA) PTY LTD )
was hereunto affixed by )
authority of the Directors )
in the presence of: )
Director:
Director/Secretary:
- ------------------------------------------------------
of
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being the abovenamed nominee hereby consents to this nomination and agrees with
the Owner to comply with the provisions of this Deed and to be bound by and have
all of the rights, benefits and obligations of DDD pursuant to the Deed in
general and acknowledges and agrees to be bound by the provisions of clause 7 in
particular.
[Insert Sealing Clause for Nominee]
Dated the day of 199
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SCHEDULE 4
FORM OF NOTICE OF EXERCISE OF PUT OPTION
NOTICE OF EXERCISE OF PUT OPTION
This notice is delivered by Boston Tower Pty Ltd (ACN 071 187 187) in terms
of the Deed dated the day of 1998 made between Boston Tower Pty Ltd
and Dynamic Digital Depth (Australia) Pty Ltd (ACN 060 164 949) ("DDD").
Boston Tower Pty Ltd gives notice to DDD under clause 4.2 of that Deed that it
exercises the Put Option to sell the Land as defined in and in accordance with
the provisions of the Deed.
Dated the day of 199
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SCHEDULE 5
CONTRACT
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DYNAMIC DIGITAL DEPTH (AUSTRALIA) PTY LTD
(ACN 060 154 949)
- and -
BOSTON TOWER PTY LTD
(ACN 071 187 187)
--------------------------------
OPTION DEED
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Solomon Brothers
40th Floor
Exchange Plaza
2 The Esplanade
PERTH WA 6000
Ref: BCD/sw/6572034