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JUPITERS LIMITED
ABN 78 010 741 045
Level 9, Niecon Tower
17 Victoria Avenue
PO Box 1400
Broadbeach QLD 4218
Australia
Telephone 07 5584 8900
Facsimile 07 5538 6315
JUPITERS LIMITED CLARIFICATION OF
TERMS OF RESET PREFERENCE SHARES
The Board of Jupiters Limited (JUPITERS) today announced that it has made a
number of amendments relating to the terms of its listed Reset Preference Shares
(RPS) trading as hybrid securities code JUPPA on ASX. Jupiters currently has
1,901,735 RPS on issue. Following the 5 March 2003 announcement of the
Jupiters/TABCORP merger by way of scheme of arrangement, Jupiters has given
detailed consideration to the terms on which the RPS were issued (RPS TERMS). As
a result of its review, Jupiters has amended the terms under clause 13.6 of the
RPS terms. RPS holders should read the amended terms which are attached to this
announcement. A summary of the amendments follows. Capitalised items refer to
defined terms in the RPS terms.
SUMMARY OF AMENDMENTS
ENSURING EQUIVALENCE BETWEEN AMOUNT RECEIVED BY RPS HOLDERS ON CONVERSION,
REPURCHASE AND ON-SALE
Under the RPS terms, on being notified that a Trigger Event (which would include
the release to ASX of a favourable expert's report for the Jupiters ordinary
shareholders' scheme) has occurred, RPS holders have the right to deliver a
conversion notice. The delivery of such a 'Trigger Event Conversion Notice'
entitles holders to (at Jupiters' election) have their RPS converted into
Jupiters' ordinary shares, Repurchased by Jupiters or on-sold to a third party
(with RPS holders being entitled to receive, in each of the latter two cases,
the Repurchase Amount plus the amount of the Outstanding Dividend). In the case
of conversion, Jupiters' shares would be issued at a 5% discount to the relevant
volume weighted average sale price (VWAP) of Jupiters' ordinary shares.
The intention of the RPS terms was that regardless of the election made by
Jupiters (and disregarding the 5% discount at which ordinary shares would be
issued) RPS holders should receive the same value on conversion, Repurchase and
on-sale. It is not clear that this is the case for the following reasons:
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1 Share Price Increases: On conversion, RPS holders do not
participate in any increase in the price of Jupiters' ordinary
shares until those shares are worth $6.78, while on Repurchase or
on-sale they were intended to share in Jupiters' ordinary share
price increases above $6.45. The clear intention, as stated in
the Prospectus for the RPS issue, was that holders would share in
increases above $6.45 on either conversion, Repurchase or
on-sale.
2 Repurchase Amount: In certain circumstances on Repurchase or
on-sale, RPS holders only share in the takeover premium of the
equivalent value of one Jupiters' ordinary share, rather than the
number of ordinary shares one RPS notionally represents on
Repurchase or on-sale (namely the Conversion Minimum).
3 VWAP Conversion Minimum and Conversion Maximum adjustments: In
the case of conversions the RPS terms may require adjustments to
be made to the Jupiters' ordinary share VWAP, the Conversion
Minimum and the Conversion Maximum It is not clear whether these
adjustments have to be made on Repurchase or on-sale, as was the
intention.
Amendments have been made to clarify the position of RPS holders in the above
circumstances and to ensure equivalence between the value received by RPS
holders on conversion, Repurchase and on-sale.
Those amendments reflect an adjustment of the type contemplated by clause 6.7 of
the RPS terms (for a Capital Distribution of $0.01) to the original Conversion
Minimum (as announced on 10 April 2002).
ENSURING RPS HOLDERS RECEIVE THEIR OUTSTANDING DIVIDENDS
On delivery of a conversion notice in all circumstances other than the delivery
of a special conversion notice under clause 4.3 of the RPS terms, it was
intended that holders of RPS have the right to receive payment of their
Outstanding Dividends.
It is not clear from the RPS terms that holders of RPS which are the subject of
a conversion notice (other than a special conversion notice), and which are to
convert into Jupiters ordinary shares, are to receive the value of the
Outstanding Dividends on those RPS by way of the issue of additional Jupiters'
ordinary shares, in circumstances where the Conversion Minimum number applies
and Jupiters is not able to pay the Outstanding Dividend in cash.
The RPS terms have been amended to make this clear.
APPLICATION OF RPS TERMS IN ABSENCE OF A VWAP
The RPS terms do not currently make provision for circumstances where there is
no VWAP for Jupiters' ordinary shares. There are foreseeable circumstances in
which this might arise notwithstanding that RPS remain widely held. For
instance, it is possible that TABCORP will acquire all of the ordinary shares in
Jupiters in circumstances where it does not acquire all of the RPS. In this
situation, Jupiters believes the most likely outcome is that Jupiters' ordinary
shares will be suspended from trading and Jupiters will be removed from the
Official List of ASX.
There will therefore be no VWAP for Jupiters' ordinary shares.
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Jupiters has amended the terms to provide that, in circumstances where its
ordinary shares have ceased trading, the VWAP will be the VWAP over the same
period prior to the date on which Jupiters' ordinary shares were suspended,
unless having considered the matter, the Directors determine that this value is
inappropriate. In making their determination, the Directors are to have regard
to the purpose of the VWAP in the RPS terms.
IMPLICATIONS ON RPS OF PROPOSED JUPITERS SCHEME OF ARRANGEMENT FOR ORDINARY
SHARES
A separate announcement made today by Jupiters and TABCORP provides details of
the agreement between Jupiters and TABCORP in relation to the proposed scheme of
arrangement between Jupiters and the holders of its ordinary shares (the
ORDINARY SCHEME) which was announced by Jupiters and TABCORP on 5 March 2003.
RPS holders have the right to serve a Trigger Event Conversion Notice under the
RPS terms in certain circumstances where such a scheme of arrangement is
proposed. In the context of the proposed merger, the value received by an RPS
holder in response to such a conversion notice may be referable to the amount by
which the Offer Price exceeds the VWAP of Jupiters' ordinary shares over a
period prior to the date on which the Ordinary Scheme was announced. The
determination of the Offer Price will be made by an independent expert engaged
by Jupiters, and will include that expert's valuation of the scrip consideration
to be provided by TABCORP under the Ordinary Scheme and its valuation of other
consideration provided for under the Ordinary Scheme.
ACTION FOLLOWING THE ANNOUNCEMENT OF THE MERGER
The separate joint announcement by Jupiters and TABCORP also referred to the
proposed scheme of arrangement between Jupiters and the holders of its RPS (RPS
SCHEME).
RPS holders will be entitled to vote on the RPS Scheme. Under the RPS Scheme,
RPS holders will receive from TABCORP $105.26 cash for each RPS held by them,
plus the cash amount of dividends accrued but unpaid on each such RPS up to the
date of implementation of the RPS Scheme.
An independent expert's report on the RPS Scheme will be prepared by
PricewaterhouseCoopers Securities Ltd and this report will be included in the
scheme documentation sent to RPS holders.
Going forward, holders of RPS may lodge a conversion notice with Jupiters,
requesting conversion of their RPS into Jupiters ordinary shares - including
under a Trigger Event of the type described above. As provided for in the RPS
terms, Jupiters will not permit such conversions and instead will Repurchase the
relevant RPS (in the case of conversion notices pursuant to the special
conversion right), or arrange for the sale to TABCORP of the relevant RPS for
the Repurchase Amount (in the case of conversion notices pursuant to a Trigger
Event). RPS holders who have their RPS acquired by TABCORP would also receive
their Outstanding Dividend.
RPS holders will be receiving detailed information from Jupiters which will
contain the Board's recommendation on voting on the RPS Scheme. That information
is expected to be available in August.
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RPS holders are advised to wait until they receive this information before
taking any action under the RPS terms.
12 June 2003
For further information please contact:
Mr Paul Binsted
Citigroup Global Markets
02 8225 4663
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Please note that the following document in its original format contained editing
marks to indicate revisions to the Terms and Conditions. Those amendments are
indicated in this copy as underlined text. For example: amended text
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Where text has been deleted, that is indicated in this copy by a comment within
square brackets and the actual deleted text within quote marks. This is also
underlined. For example: [deleted: "deleted text"]
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JUPITERS LIMITED PREFERENCE SHARES
TERMS AND CONDITIONS
1. ISSUE OF JUPITERS PREFERENCE SHARES
On and subject to these Terms and Conditions and the Constitution of
Jupiters Limited each Jupiters Reset Preference Share ("Jupiters RPS")
will be issued with an Issue Price of $100. Jupiters RPS are 10 year
redeemable preference shares paying an unfranked, cumulative dividend.
As the Jupiters RPS will be treated as debt for tax purposes, the
dividend will not be franked.
2. DIVIDENDS
2.1 DIVIDENDS
A Holder on the relevant Record Date is entitled to receive a Dividend per
Jupiters RPS on each relevant Dividend Payment Date, subject to clause 2.3,
calculated in accordance with the following formula:
DR x $100 x D
Dividend = ______________
365
Where:
DR is the Dividend Rate in respect of that Dividend Payment Date;
D is the number of days from (and including) the immediately prior Dividend
Payment Date or, in the case of the first Dividend Payment Date, from (and
including) the Issue Date to (but excluding) the current Dividend Payment
Date.
Where a Dividend is not paid under this clause, an Additional Amount will
be payable on the next Dividend Payment Date (as well as the Dividend
calculated under this clause for that Dividend Payment Date), subject to
clause 2.3.
2.2 ADDITIONAL AMOUNT
Dividends are cumulative so that if a Dividend is not paid on a Dividend
Payment Date it is deferred to the next Dividend Payment Date on which the
Dividend Payment Test is satisfied. As a consequence, where a Dividend is
not paid under clause 2.1, an Additional Amount will be payable on the next
Dividend Payment Date equal to the amount of the Dividend and any
Additional Amount not paid on any prior Dividend Payment Date because of
clause 2.3 grossed up by a further amount calculated in accordance with the
following formula:
IR x UD X D
Additional Amount = UD + ___________
365
Where:
IR is the Dividend Rate plus 2.00% per annum in respect of that Dividend
Payment Date;
UD is the amount of Dividend (and any Additional Amount payable on the
preceding Dividend Payment Date) that has not been paid the preceding
Dividend Payment Date as a result of the operation of clause 2.3; and
D is the number of days from (and including) the immediately prior
Dividend Payment Date to (but excluding) the current Dividend Payment Date.
2.3 PAYMENT OF DIVIDEND
Dividends calculated under clause 2.1 and/or Additional Amounts calculated
under clause 2.2 are only required to be paid on the Dividend Payment Date
if the Directors, at their absolute and unfettered discretion, declare the
Dividend and/or Additional Amount to be payable or otherwise resolve to pay
the Dividend and/or Additional Amount ("Dividend Payment Test").
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2.4 CALCULATION OF DIVIDENDS
All calculations of Dividends will be to four decimal places. For the
purposes of making any Dividend or Additional Amount payment in respect of
a Holder's aggregate holding of Jupiters RPS, any fraction of a cent will
be disregarded.
2.5 SUSPENSION OF PAYMENTS
If the Company fails to pay a Dividend on any Dividend Payment Date, the
Company must not pay any dividend, make any other payments or
distributions, or return any capital on, redeem, cancel, buyback or
otherwise acquire Ordinary Shares or share capital ranking equally or
subordinate with Jupiters RPS unless and until the Company pays all
Outstanding Dividends.
2.6 WITHHOLDING OBLIGATIONS
The Company will be entitled to deduct from any amount payable to a Holder
the amount of any withholding or other tax, duty or levy required by law to
be deducted from it. Where any such deduction is made:
(a) the Company will pay the amount required to be deducted to the
relevant revenue or collection authority within the time allowed for
such payment;
(b) the Holder will be paid the balance of the amount after allowance for
the payment referred to in paragraph (a) above; and
(c) upon compliance by the Company with paragraphs (a) and (b) above, the
Holder will be deemed to have been duly paid the amount by the
Company.
2.7 RECORD DATES
The Holders entitled to be paid a Dividend and/or Additional Amount (if
applicable) will be those persons registered as Holders of Jupiters RPS on
the relevant Record Date for that Dividend.
3. RESET NOTICES
3.1 RESET NOTICE
The Company may, at least 50 Business Days prior to the Reset Date and in
relation to each of the Jupiters RPS, give written notice to each Holder
of:
(a) the Dividend Rate (which shall not be less than the Swap Rate)
applicable between the Reset Date and the Maturity Date ("Reset
Period");
(b) the Conversion Minimum, the Conversion Maximum, the conversion
discount and the Capital Distribution applicable to the Reset Period;
(c) the method of calculating VWAP for the Reset Period; and
(d) the Dividend Payment Dates during the Reset Period.
3.2 NO RESET NOTICE
If the Company does not give a Reset Notice in accordance with clause
3.1, the Company shall be deemed to have given a Reset Notice under
which:
(a) the Dividend Rate shall be the higher of the Swap Rate and the
Dividend Rate applying prior to the Reset Date, provided that where
the Dividend Rate is the Swap Rate, the Company will give the Holder
notice of that Swap Rate within 10 Business Days after the Reset Date;
(b) the Conversion Maximum, Conversion Minimum and method of calculating
VWAP for the Reset Period shall be those applying prior to the Reset
Date; and
(c) the Dividend Payment Dates following the Reset Date shall be 1 August
and 1 February and the Conversion Date if this is not already a
Dividend Payment Date (other than a Conversion Date relating to the
exercise of a Special Conversion Right under clause 4.3), or where
such date is not a Business Day, the next occurring Business Day
following that date.
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4. CONVERSION BY HOLDERS
4.1 STANDARD CONVERSION RIGHT
Subject to these Terms and Conditions, if the Company has not delivered a
notice under clause 5.1, a Holder has the right to convert all or some of
their Jupiters RPS into Ordinary Shares by delivering a Conversion Notice
to the Company not later than 35 Business Days (but no more than 3 months)
prior to the Reset Date or the Maturity Date.
4.2 TRIGGER EVENT CONVERSION RIGHT
(a) The Company shall, by notice in writing, notify the Holders of the
occurrence of a Trigger Event as soon as reasonably practicable after
it becomes aware of such occurrence;
(b) Subject to these Terms and Conditions, a Holder has the right to
convert all or some of their Jupiters RPS into Ordinary Shares by
delivering a Conversion Notice to the Company during the 20 Business
Days after the date of any notice issued by the Company under clause
4.2(a); and
(c) Subject to these Terms and Conditions, where the Trigger Event
comprises a failure by the Company to Repurchase the Jupiters RPS on
the Maturity Date in accordance with clause 7(c), a Holder has the
right to convert some or all of its Jupiters RPS into Ordinary Shares
by delivering a Conversion Notice to the Company during the 30
Business Days after the Maturity Date.
4.3 SPECIAL CONVERSION RIGHT
In addition to the conversion rights set out in clause 4.1 and clause 4.2,
subject to these Terms and Conditions, a Holder has the right to convert
all or some of their Jupiters RPS into Ordinary Shares by delivering a
Conversion Notice to the Company at any time except during periods where
the Holder has a right to convert their Jupiters RPS under clause 4.1. For
the avoidance of doubt, on an exercise of the Special Conversion Right:
(a) the Conversion Ratio is the Conversion Minimum number; and
(b) the Holder will not receive the Outstanding Dividend on conversion.
4.4 NO WITHDRAWAL
A Conversion Notice, once given by a Holder, can not be withdrawn without
the consent in writing of the Company.
4.5 CONVERSION NOTICES
(a) A Conversion Notice must specify which conversion right the Holder is
exercising under these Terms and Conditions and refer to the relevant
clause of these Terms and Conditions under which that right is being
exercised.
(b) A Conversion Notice must be accompanied by evidence of title
reasonably acceptable to the Company for the Jupiters RPS the subject
of the Conversion Notice and is not taken to be a valid notice unless
and until such evidence is received by the Company.
(c) Where the Company has received a valid Conversion Notice in respect of
any particular Jupiters RPS, any Conversion Notice subsequently issued
will apply only to Jupiters RPS which were not the subject of the
prior Conversion Notice. The Directors may apply such adjustments (if
any) as the Directors consider to be reasonably necessary to reflect
that the subsequently issued Conversion Notice will apply to a lesser
holding of Jupiters RPS.
5. COMPANY'S OPTIONS
5.1 OPTIONS ON RESET DATE AND MATURITY DATE
The Company may, by notice in writing to each Holder, given not later than
50 Business Days prior to the Reset Date or the Maturity Date, elect to
Repurchase Jupiters RPS pursuant to clause 7.
5.2 OPTIONS ON CONVERSION NOTICE (STANDARD CONVERSION RIGHT)
The Company may, upon receipt by it of a Conversion Notice given under
clause 4.1, by notice in writing to the Holder who gave the Conversion
Notice, which notice is to be given to that Holder not
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later than 30 Business Days prior to the Reset Date or Maturity Date, elect
to do all or some of the following:
(a) to Repurchase the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, pursuant to clause 7; or
(b) to arrange for the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, to be acquired by a third party
pursuant to clause 8,
and the Company is not required to give effect to the relevant Conversion
Notice.
To the extent that an election above is not made, then the Company is
required to convert the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, into Ordinary Shares pursuant to clause
6.
5.3 OPTIONS ON CONVERSION NOTICE (TRIGGER EVENT CONVERSION RIGHT)
The Company may, upon receipt by it of a Conversion Notice given under
clause 4.2 (other than a Conversion Notice given under clause 4.2(c)), by
notice in writing to the Holder who gave the Conversion Notice, which
notice is to be given to that Holder not later than 20 Business Days prior
to the Conversion Date, elect to do all or some of the following:
(a) to Repurchase the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, pursuant to clause 7; or
(b) to arrange for the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, to be acquired by a third party
pursuant to clause 8,
and the Company is not required to give effect to the relevant Conversion
Notice.
To the extent that an election above is not made, then the Company is
Required to convert the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, into Ordinary Shares pursuant to
clause 6.
5.4 OPTIONS ON CONVERSION NOTICE (SPECIAL CONVERSION RIGHT)
The Company may, upon receipt by it of a Conversion Notice given under
clause 4.3, by notice in writing to the Holder who gave the Conversion
Notice, which notice is to be given to that Holder not later than 10
Business Days prior to the Conversion Date, elect to Repurchase the
Jupiters RPS held by the Holder, which are the subject of the Conversion
Notice, pursuant to clause 7 and the Company is not required to give effect
to the relevant Conversion Notice.
To the extent that an election above is not made, then the Company is
required to convert the Jupiters RPS held by the Holder, which are the
subject of the Conversion Notice, into Ordinary Shares pursuant to clause
6.
5.5 OPTIONS ON TAX EVENT
Upon the occurrence of a Tax Event, the Company may, by notice in writing
to each Holder, elect to do all or some of the following:
(a) to Repurchase the Jupiters RPS held by the Holder pursuant to clause
7; or
(b) convert the Jupiters RPS held by the Holder to Ordinary Shares
pursuant to clause 6.
5.6 NO WITHDRAWAL
A notice, once given by the Company under this clause 5, can not be
withdrawn without the consent of the relevant Holder who received that
notice.
6. CONVERSION OF JUPITERS RPS
6.1 METHOD OF CONVERSION
On each Conversion Date:
(a) each Jupiters RPS which is to be converted on that Conversion Date
under clauses 4 or 5 will be converted into, and have the same rights
as, one Ordinary Share; and
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(b) each Holder whose Jupiters RPS are converted on that Conversion Date
under clauses 4 or 5 will be allotted on that Conversion Date a number
of additional Ordinary Shares in respect of each Jupiters RPS
calculated in accordance with the following formula:
AS = CR - 1
Where:
AS is a number of additional Ordinary Shares; and
CR is the Conversion Ratio,
provided that if AS is less than zero it shall be deemed to be zero.
Where the total number of additional Ordinary Shares to be allotted to a
Holder on a conversion includes fractions, that fraction will be
disregarded.
-
In addition, in final satisfaction of all amounts owing, Holders will be
entitled to receive on the Conversion Date:
(a) to the extent permitted by law, payment from the Company of an amount
equal to the Outstanding Dividend whether by way of dividend,
Additional Amount or otherwise; or
(b) otherwise additional Ordinary Shares on conversion of their Jupiters
RPS:
(i) through an adjustment to the amount of "A" in the calculation of
--- the Conversion Ratio as set out in clause 6.2; or
----
(ii) in circumstances where the Conversion Ratio derived by
-----------------------------------------------------------
application of the formula set out in clause 6.2 (before making
---------------------------------------------------------------
the adjustment required by sub-clause (i) hereof) would (but for
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the proviso in the definition of "CR" in clause 6.2) be less than
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the Conversion Minimum, by treating the Conversion Minimum when
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used in the definition of "CR" in clause 6.2 as being increased
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by a figure derived by application of the equation:
---------------------------------------------------
Dividend Calculation
--------------------
VWAP - (CD x VWAP)
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where terms used in the formula have the same meaning as those
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terms in clause 6.2,
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in which case there will be no continuing obligation on the
Company to pay any amount under subclause (a) above.
6.2 CONVERSION RATIO
For the purpose of these Terms and Conditions, the Conversion Ratio is the
number calculated in accordance with the following formula (except in
relation to the Special Conversion Right):
A
CR = ____________________
VWAP - (CD x VWAP)
Where:
A =
(i) $100 ; and
--- --
(ii) the amount equal to any Outstanding Dividend which has not been
----
paid by the Company on the Conversion Date on the Jupiters RPS
to be converted in accordance with clause 6.1 ("Dividend
----------
Calculation");
--------------
CR is the Conversion Ratio provided that the Conversion Ratio may
---------------------------------------
never be:
---------
(a) less than the Conversion Minimum number; or
------------------------------------------------
(b) greater than the Conversion Maximum number;
------------------------------------------------
CD means the Conversion Discount; [deleted:"of 5.0%"]
- - -------------------
VWAP means the VWAP during the Reference Period; and
Reference Period means the 20 Business Days immediately preceding, but
not including:
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- If the Company's Ordinary Shares are suspended on the Conversion
Date, the first day of suspension; and
- Otherwise, the Conversion Date.
-
[deleted: "provided that the Conversion Ratio may never be:"]
-------------------------------------------------------------
[deleted: "(a) less than the Conversion Minimum number; or"]
-------------------------------------------------------------
[deleted: "(b) greater than the Conversion Maximum number."]
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For the purposes of conversion by a Holder on exercise of the Special
Conversion Right, the Conversion Ratio is the Conversion Minimum
number.
6.3 EFFECT OF CONVERSION
Any conversion of a Jupiters RPS under clause 6.1(a) will:
(a) constitute the variation of the status of, and the rights attaching
to, a Jupiters RPS so that it becomes an Ordinary Share; and
(b) not constitute a cancellation, redemption or termination of a Jupiters
RPS, nor the issue, allotment or creation of a new share.
6.4 ADJUSTMENT TO VWAP
For the purposes of calculating VWAP in the formula in clause 6.1, in
-------
clause 6.2, in clause 7(b) and in the definition of Repurchase Amount:
------- ----------------------------------------------------------
(a) where, on some or all of the Business Days in the Reference Period,
Ordinary Shares have been quoted on ASX as cum dividend or cum any
other distribution or entitlement and the Jupiters RPS will convert
into Ordinary Shares after the date those Ordinary Shares no longer
carry that entitlement (EX DATE), then the VWAP on the Business Days
on which those shares have been quoted cum dividend or cum entitlement
shall be reduced by an amount (CUM VALUE) equal to:
(1) (in the case of a dividend or other distribution), the amount of
that dividend or distribution including, if the dividend is
franked the amount that would be included in the assessable
income of a recipient of the dividend or distribution who is a
natural person under the Tax Act;
(2) (in the case of an entitlement which is traded on ASX on any of
those Business Days), the volume weighted average price of all
such entitlements sold on ASX during the Reference Period on the
Business Days on which those entitlements were traded; or
(3) (in the case of an entitlement not traded on ASX during the
Reference Period for more than three Business Days), the value of
the entitlements as reasonably determined by the Directors; and
(b) where, on some or all of the Business Days in the Reference Period,
Ordinary Shares have been quoted ex dividend, ex distribution or ex
entitlement, and the Jupiters RPS will convert into Ordinary Shares
which would be entitled to receive the relevant dividend, distribution
or entitlement, the VWAP on the Business Days on which those Ordinary
Shares have been quoted ex dividend, ex distribution or ex entitlement
shall be increased by the Cum Value.
6.5 ADJUSTMENTS FOR BONUS AND RIGHTS ISSUES
(a) Subject to paragraphs (b) and (c) below, if the Company makes a pro
rata bonus issue or a rights issue of Ordinary Shares to holders of
Ordinary Shares generally, the Conversion Minimum number and
Conversion Maximum number shall be adjusted immediately in accordance
with the following formula:
(RD + RN)
CN = CNo x P x ___________________
(RD x P) + (RN x A)
Where:
CN means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately after the application of this
formula; [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
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CNo means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately prior to the application of
this formula [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
P means the VWAP during the period from the first Business Day
after the announcement of the bonus or rights issue to ASX up to
and including the last Business Day of trading cum rights or
bonus issue;
A means the subscription or unit price per Ordinary Share for the
rights issue and is zero in the case of a bonus issue;
RN means the number of Ordinary Shares issued pursuant to the rights
or bonus issue; and
RD means the number of Ordinary Shares on issue immediately prior to
the allotment of new Ordinary Shares pursuant to the rights or
bonus issue.
(b) No adjustment to the Conversion Minimum number or Conversion Maximum
number shall occur if A exceeds P.
(c) Paragraph (a) does not apply to Ordinary Shares issued as part of a
bonus share plan, employee or executive share plan, executive option
plan, share top up plan or a dividend reinvestment plan.
6.6 ADJUSTMENTS FOR OFF MARKET BUY-BACKS
(a) Subject to paragraph (b) below, if the Company undertakes an off
market buy-back of Ordinary Shares (other than the selective buy-back
of Ordinary Shares subject to approval by shareholders on 4 April
2002), the Conversion Minimum number and Conversion Maximum number
shall be adjusted immediately in accordance with the following
formula:
(BD - BN)
CN = CNo x P x ___________________
(BD x P) - (BN x A)
Where:
CN means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately after the application of this
formula [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
CNo means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately prior to the application of
this formula [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
P means the VWAP during the 20 Business Days prior to the
announcement of the Buy-Back;
A means the Buy-Back price per Ordinary Share;
BN means the number of Ordinary Shares bought back; and
BD means the number of Ordinary Shares on issue immediately prior to
the Buy-Back.
(b) No adjustment to the Conversion Minimum number or Conversion Maximum
number shall occur if P exceeds A.
6.7 ADJUSTMENT FOR RETURN OF CAPITAL OR CAPITAL DISTRIBUTION
If the Company makes a return of capital or there is a Capital Distribution
to holders of Ordinary Shares (other than by way of a share buyback) the
Conversion Minimum number and Conversion Maximum number shall be adjusted
in accordance with the following formula:
P
CN = CNo x ________
(P - C)
Where:
CN means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately after the application of this
formula [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
================================================================================
CNo means the Conversion Minimum number and Conversion Maximum number
respectively applying immediately prior to the application of this
formula [deleted: "as provided for in clause 6.2"] ;
------------------------------------------
P means the VWAP during the period from the first Business Day after the
announcement of the return of capital to ASX up to and including the
last Business Day of trading cum the return of capital; and
C means:
(a) with respect to a return of capital, the amount of the cash
and/or the value (as reasonably determined by the Directors) of
any other property distributed to holders of Ordinary Shares per
Ordinary Share (or such lesser amount such that the difference
between P and C is greater than zero); and
(b) with respect to a Capital Distribution, the amount of such
Capital Distribution as defined in clause 14.
6.8 ADJUSTMENT FOR CAPITAL RECONSTRUCTION
If at any time the Ordinary Shares are reconstructed, consolidated, divided
or reclassified (other than by way of a bonus issue, which is dealt with
under clause 6.5) into a lesser or greater number of securities, the
Jupiters RPS must, in accordance with the ASX Listing Rules (as they apply
to the Company), be reconstructed, consolidated, divided or reclassified by
the Directors on the same basis and the Issue Price (for the purpose of
calculating the Dividends on the Jupiters RPS, the Conversion Ratio in
clause 6.2, the redemption amount in clause 7(c) and when used in the
-----------------------------------------------------------
definition of Repurchase Amount) shall be adjusted by the Directors as
--------------------------------
appropriate and to the extent that there are Outstanding Dividends, then
the amount of the Dividend per Jupiters RPS shall also be adjusted by the
Directors as appropriate.
6.9 ADJUSTMENT TO THE CONVERSION RATIO FOR A TAKEOVER OR SCHEME OF ARRANGEMENT
In the case of conversion under clause 4.2(b) where the Trigger Event is a
Control Event, the denominator of the formula in clause 6.2 will be the
lesser of:
(a) 95% of the amount calculated as follows (Offer Price):
(1) in the case of an off market bid (as defined in the Corporations
Act) or a scheme of arrangement under Part 5.1 of the
Corporations Act:
(A) the cash consideration offered (as at the date when the
Conversion Notice is given) in respect of each Ordinary
Share under the bid or scheme of arrangement; plus
(B) if the consideration offered for each Ordinary Share
includes any amount which is not cash, the value of the
non-cash consideration as determined by an independent
expert appointed by the directors (who shall act as an
expert) proposed at the time of announcement of the scheme
of arrangement or, in the case of a bid, at the date of the
announcement or, if the non-cash consideration has been
increased after announcement, the date of the most recent
increase prior to the date when the Conversion Notice is
given; or
(2) in the case of a market bid, the cash price offered under the bid
as at the time when the Conversion Notice is given; and
(b) the VWAP over the 20 Business Days immediately preceding the
announcement of the takeover offer or the scheme of arrangement plus
75% of the amount calculated by subtracting the VWAP from the Offer
Price.
6.10 DISCRETION IN ADJUSTMENT OF CONVERSION MECHANISM
Where:
(a) any of the adjustment provisions set out in clauses 6.4 to 6.9 or the
number of additional Ordinary Shares to be allotted on conversion of
the Jupiters RPS, is not, in the reasonable opinion of the Directors,
appropriate in any particular circumstances (including for the reason
that more than one adjustment provision applies to a particular
occurrence); or
(b) the Company makes a distribution other than by way of dividend in the
- ordinary course of business or makes a pro rata offer to holders of
Ordinary Shares to subscribe for, or purchase, securities in any
company other than the Company in a way which does not, in the
================================================================================
reasonable opinion of the Directors, result in an appropriate
adjustment to the Conversion Minimum number or Conversion Maximum
number; or
(c) any other event occurs in relation to the Company that may have a
diluting or concentrative effect on the value of the Ordinary Shares,
and the Directors determine that any such occurrence would, in the
reasonable opinion of the Directors, affect the relative values of the
Jupiters RPS and the Ordinary Shares,
the Directors may:
(d) make such alterations to the Conversion Minimum number or the
Conversion Maximum number or the Conversion Discount
[deleted: "(as defined in clause 6.2)"] as the Directors
---------------------------------------
reasonably consider appropriate or necessary to maintain that
relativity; or
(e) extend an entitlement to the holders of the Jupiters RPS to
participate in such distribution or pro rata offer based upon the
number of Ordinary Shares to which those holders would have been
entitled if their Jupiters RPS had been converted on a date nominated
by the Directors and adapting the formula in clause 6.2 as the
Directors reasonably consider appropriate to maintain the relativity.
6.11 Subject to clause 6.10, if an adjustment is made under clause 6.4(a), and
- ------------------------------------------------------------------------------
the circumstances which bring about that adjustment would also be such as
-------------------------------------------------------------------------
will, in the opinion of the Directors, bring about an adjustment under any
-------------------------------------------------------------------------
of clauses 6.5, 6.6, 6.7 or 6.8, the adjustment to the Conversion Minimum
-------------------------------------------------------------------------
or Conversion Maximum under clauses 6.5, 6.6, 6.7 or 6.8, shall be made
-------------------------------------------------------------------------
immediately prior to the Conversion Date, if the Conversion Date is prior
-------------------------------------------------------------------------
to the date the adjustment is made under clauses 6.5, 6.6, 6.7 or 6.8.
-------------------------------------------------------------------------
7. REPURCHASE OF JUPITERS RPS
(a) The Company may, where it has given a notice pursuant to clauses 5.1,
5.2, 5.3 or 5.5 that it proposes to Repurchase Jupiters RPS,
Repurchase the Jupiters RPS the subject of that notice on the relevant
Conversion Date. The consideration for any Repurchase of Jupiters RPS
under this clause will be the Repurchase Amount plus the Outstanding
Dividend amount that has not been paid on the Conversion Date which
may be satisfied by the payment of the Outstanding Dividend to the
Holder.
(b) The Company may, where it has given a notice pursuant to clause 5.4
that it proposes to Repurchase Jupiters RPS, Repurchase the Jupiters
RPS the subject of that notice on the relevant Conversion Date. The
consideration for any Repurchase of Jupiters RPS under this clause
will be the Conversion Minimum number multiplied by VWAP during the 5
Business Days prior to the Conversion Date. For the avoidance of
doubt, where the Repurchase occurs in accordance with this subclause
(b), the Holder will have no entitlement to receive any Outstanding
Dividend on [deleted: "conversion"] Repurchase.
----------------------------------
(c) On the Maturity Date, unless the Company has given a notice pursuant
to clauses 5.1 or 5.2, the Company will Repurchase by way of
redemption the Jupiters RPS under this clause for the Issue Price plus
the Outstanding Dividend amount that has not been paid on the
Conversion Date which may be satisfied by the payment of the
Outstanding Dividend to the Holder.
(d) Each Holder appoints the Company and each of the Directors, jointly
and all severally, to be the lawful attorneys of the Holder to accept
all offers and to execute all notices and other documents necessary or
desirable to effect a Repurchase of Jupiters RPS pursuant to this
clause 7.
8. THIRD PARTY ACQUISITION
(a) The Company may, where it has given a notice pursuant to clause 5.2 or
clause 5.3 that it wishes to arrange for the acquisition of a Jupiters
RPS by a third party, procure that a third party acquire the Jupiters
RPS the subject of that notice on the Conversion Date for a cash
consideration per Jupiters RPS equal to the Repurchase Amount plus the
Outstanding Dividend amount that has not been paid on the Conversion
Date which may be satisfied by the payment of the Outstanding Dividend
to the Holder.
(b) Each Holder appoints the Company and each of the Directors, jointly
and all severally, to be the lawful attorneys of the Holder to execute
all notices and other documents necessary or desirable to effect a
transfer of Jupiters RPS pursuant to this clause 8.
================================================================================
9. VOTING
9.1 NOTICE OF MEETINGS
(a) Holders will be entitled to receive notice of any general meeting of
the Company and a copy of every report, audited accounts, circular or
other like document sent out by the Company to holders of Ordinary
Shares and to attend any general meeting of the Company.
(b) Failure by the Company to provide any notice of any documents referred
to in paragraph (a) will not affect the validity of any meeting (or
any proceedings at any meeting), transaction or document connected
with the document which was not received by a Holder.
9.2 NO GENERAL RIGHT TO VOTE
The Holder will not be entitled to vote at a general meeting of the
Company except in the following circumstances:
(a) if at the time of the meeting, a Dividend (or part of a Dividend) in
respect of the Jupiters RPS is in arrears or there is any Outstanding
Dividend in respect of the Jupiters RPS;
(b) on a proposal to reduce the Company's share capital;
(c) on a resolution to approve the terms of a buy-back agreement;
(d) on a proposal that affects the rights attaching to a Jupiters RPS;
(e) on a proposal to wind up the Company;
(f) on a proposal for the disposal of the whole of the Company's property,
business and undertaking;
(g) during the winding up of the Company; or
(h) as otherwise required under ASX Listing Rules from time to time,
in which case the Holders will have the same rights as to manner of
attendance and as to voting in respect of each Jupiters RPS as those
conferred on holders of Ordinary Shares in respect of each Ordinary Share.
9.3 VOTING AT GENERAL MEETINGS
At a general meeting of the Company, where Holders are entitled to vote
Pursuant to clause 9.2, Holders are entitled:
(a) on a show of hands, to exercise one vote; and
(b) on a poll, to one vote for each fully paid Jupiters RPS.
10. PARTICIPATION IN NEW ISSUES
Prior to a conversion of a Jupiters RPS in accordance with clause 6, a
Jupiters RPS will confer no rights on its Holder to subscribe for new
securities of the Company or to participate in any bonus issues of the
Company.
11. ENTITLEMENT AND RANKING
11.1 RANKING
Other than as expressly contemplated by these Terms and Conditions,
Jupiters RPS rank equally amongst themselves in all respects.
11.2 PRIORITY OVER ORDINARY SHARES
Jupiters RPS rank in priority to Ordinary Shares for the payment of
Dividends. If there is a return of capital on a winding up of the Company,
the holders of Jupiters RPS will be entitled to receive out of the assets
of the Company available for distribution to holders of Ordinary Shares, in
respect of each Jupiters RPS held, a sum equal to the Repurchase Amount
before any return of capital is made to holders of Ordinary Shares or any
other class of shares ranking behind the Jupiters RPS.
================================================================================
11.3 SHORTFALL ON A WINDING UP
If, upon such return of capital, there are insufficient funds to pay in
full the amounts referred to in clause 11.2 and the amounts payable in
respect of any other shares or securities in the Company ranking as to such
distribution equally with Jupiters RPS on a winding up, then the holders of
Jupiters RPS and the holders of any such other shares or securities will
share in any distribution of assets of the Company in proportion to the
amounts to which they respectively are entitled.
11.4 PARTICIPATION IN SURPLUS ASSETS
Jupiters RPS do not confer on their Holders any further right to
participate in the surplus assets or profits of the Company on a winding
up.
11.5 RANKING ON CONVERSION
The Ordinary Shares arising upon conversion of Jupiters RPS shall from the
Conversion Date rank pari passu in all respects with all other Ordinary
Shares then on issue.
11.6 ISSUE OF FURTHER JUPITERS RPS
The Company reserves the right to issue further Jupiters RPS which rank
equally with the existing Jupiters RPS in respect of dividends or
distributions of capital on a winding up.
The issue of any other preference shares, which rank in priority to
Jupiters RPS in respect of dividends or distributions of capital in a
winding up constitutes a variation of the rights attaching to Jupiters RPS
(refer clause 13).
12. QUOTATION
The Company will apply for official quotation on the Official List of ASX
of Jupiters RPS and of any Ordinary Shares as a result of a conversion
pursuant to clause 6.
13. VARIATION OF TERMS AND CONDITIONS
13.1 In accordance with clause 9 of the Company's Constitution the Terms and
Conditions may be varied in accordance with the procedure set out below.
13.2 Other than in accordance with clause 13.6, the Terms and Conditions may be
varied, modified abrogated or altered in any way:
(a) with the approval of an ordinary resolution of the Holders at a
separate meeting of Holders convened for that purpose; or
(b) with the written approval of the Holders of at least 50% of the
Jupiters RPS.
13.3 All the provisions of the Corporations Act and the Company's Constitution
as to resolutions and general meetings shall be deemed to apply mutatis
mutandis to every such resolution and meeting.
13.4 The accidental omission to give notice to, or the non-receipt of notice by
any Holder does not invalidate any provision of these Terms and Conditions
relating to the giving of notice to Holders or the proceedings at any
meeting of Holders.
13.5 Any variation to the Terms and Conditions proposed by the Company in
accordance with this clause and approved by the Holders is binding on all
Holders.
13.6 Subject to complying with all applicable laws, the Company may without the
authority, assent or approval of the Holders amend or add to these terms of
issue if such amendment or addition is, in the opinion of the Company:
(a) of a formal, minor or technical nature;
(b) made to correct a manifest error; or
(c) not likely (taken as a whole and in conjunction with all other
modifications, if any, to be made contemporaneously with that
modification) to be materially prejudicial to the interests of the
Holders.
================================================================================
14. NOTICES
14.1 A notice is taken to be given by the Company for the purpose of these Terms
and Conditions when it is mailed in a prepaid envelope to an address, or
sent to a fax number or electronic address, permitted by the Company's
constitution, irrespective of when it is actually received by the Holder.
This clause does not limit the means by which the Company may serve notices
on the Holder.
14.2 A notice is taken to be given by the Holder for the purposes of these Terms
and Conditions when it is received by the Company.
15. DEFINITIONS AND INTERPRETATION
15.1 DEFINITIONS
In these Terms and Conditions:
"ADDITIONAL AMOUNT" has the meaning given to that term in clause 2.2;
-
"ASX" means Australian Stock Exchange Limited or any successor body;
"ASX BUSINESS RULES" means the business rules of ASX as amended or replaced
from time to time;
"ASX LISTING RULES" means the listing rules of ASX as amended or replaced
from time to time;
"BONUS ISSUE" means a pro rata issue made to holders of Ordinary Shares of
any Securities credited as fully paid by way of capitalisation of profits,
reserves or otherwise, but excluding any issue of securities made either in
lieu of a cash payment or as a dividend under the constitution of the
Company;
"BONUS SECURITIES" means Securities issued under a Bonus Issue;
"BUSINESS DAY" has the meaning given to that term in the ASX Listing Rules;
"CAPITAL DISTRIBUTION" is the amount by which the sum of all dividends per
Ordinary Share paid by the Company in respect of a financial year exceeds
the relevant amount shown below for that financial year or part financial
year as applicable:
30 June 2002 $0.20
30 June 2003 $0.24
30 June 2004 $0.29
30 June 2005 $0.35
30 June 2006 $0.42
30 June 2007 $0.50
"COMPANY" means Jupiters Ltd (ABN 78 010 741 045);
"CONTROL EVENT" means:
(a) a takeover bid (as defined in the Corporations Act) is made to acquire
all or some of the Ordinary Shares and the offer is, or becomes,
unconditional; and
(i) the bidder has at any time during the offer period, a relevant
interest in more than 50% of the Ordinary Shares on issue; or
(ii) the Directors issue a statement recommending acceptance of the
offer;
(b) the Company lodges with ASIC a draft explanatory statement for a
scheme of arrangement that the Company proposes to enter into under
Part 5.1 of the Corporations Act, which, if approved and implemented,
will result in a person having a relevant interest in more than 50% of
the Ordinary Shares that will be on issue after the scheme is
implemented, and either the Company releases to the market an opinion
from an independent expert that the proposed scheme is fair and
reasonable or the scheme is approved by the Court.
"CONVERSION DATE" means:
(a) subject to paragraphs (b), (c) and (d), on or prior to the Reset Date,
in relation to each Jupiters RPS which is the subject of a Conversion
Notice under clause 4.1 or a notice under clauses 5.1 or 5.2, the
Reset Date;
(b) in relation to each Jupiters RPS which is the subject of a Conversion
Notice under clause 4.2(b), a date being 50 Business Days after the
notification of a Trigger Event; or
================================================================================
(c) in relation to each Jupiters RPS which is the subject of a Conversion
Notice under clause 4.3 (Special Conversion Right), a date being the
last Business Day of the month following the month in which the
Conversion Notice is received by the Company;
(d) in relation to each Jupiters RPS which is the subject of a notice
under clause 5.4, the next occurring Dividend Payment Date; or
(e) in relation to each Jupiters RPS which is outstanding at the Maturity
Date, the Maturity Date.
"CONVERSION DISCOUNT" means 5%, as adjusted in accordance with clause 6.10;
---------------------------------------------------------------------------
"CONVERSION MAXIMUM" means:
(a) in relation to the Jupiters RPS until the Reset Date, 200;
(b) after the Reset Date, in relation to Jupiters RPS, the number
specified as such in the Reset Notice (or as determined under clause
3.2(b)),
in each case as adjusted in accordance with clauses 6.5, 6.6, 6.7, 6.8 and
--------------------------------------------------------------------------
6.10.
-----
"CONVERSION MINIMUM" means:
(a) until the Reset Date in relation to the Jupiters RPS means
[deleted: "the greater of"] :
-----------------------------
(i) when used in the definition of Repurchase Amount and clause 7(b),
----------------------------------------------------------------------
15.532[deleted: "414.8148 or $100 divided by 125% of the VWAP"]
---------------------------------------------------------------
[deleted: "from (and including) 28 February 2002 to (and"]
----------------------------------------------------------
[deleted: "including) 3 April 2002"] ; and
--------------------------------------------
(ii) when used in clause 6.1, clause 6.2 and clause 4.3(a), 15.5324
-------------------------------------------------------------------
divided by (1 Conversion Discount); and
---------------------------------------
(b) after the Reset Date in relation to the Jupiters RPS, the number or
--
numbers specified as such in the Reset Notice (or as determined under
-------
clause 3.2(b)),
in each case as adjusted in accordance with clauses 6.5, 6.6, 6.7, 6.8 and
--------------------------------------------------------------------------
6.10;
-----
"CONVERSION NOTICE" means a notice from a Holder that requires the Company
to convert the number of Jupiters RPS specified in the notice into Ordinary
Shares, in such a form as the Directors may from time to time approve,
given under clause 4.1, clause 4.2 or clause 4.3;
"CONVERSION RATIO" means the amount calculated in accordance with clause
6.2;
"DIRECTORS" means the directors of the Company;
"DIVIDEND" means a dividend in respect of each Jupiters RPS;
"DIVIDEND PAYMENT DATE" means:
(a) until the Reset Date in relation to all Jupiters RPS, 9 October and 9
April and the Conversion Date if this is not already a Dividend
Payment Date (other than a Conversion Date relating to the exercise of
a Special Conversion Right under clause 4.3); and
(b) after the Reset Date, in relation to the Jupiters RPS, the dates set
out in the Reset Notice as the "Dividend Payment Dates", applicable to
the Jupiters RPS (or as determined under clause 3.2(c)),
or where such date is not a Business Day, the next occurring Business Day
following that date;
"DIVIDEND PAYMENT TEST" has the meaning given to it in clause 2.3.
"DIVIDEND RATE" means:
(a) until the Reset Date, the higher of 8.15% per annum, and the Swap Rate
prevailing on the date the Jupiters RPS are allotted plus a margin of
1.79%; and
(b) from the Reset Date, in relation to the Jupiters RPS, the rate set out
in the Reset Notice as the "Dividend Rate" applicable to the Jupiters
RPS (or as determined under clause 3.2(a));
"GOVERNMENTAL AGENCY" means a government or a governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity;
"GST" has the meaning given in the A New Tax System (Goods and Services
Tax) Act 1999 (Cth) as amended from time to time;
================================================================================
"HOLDER" means a person whose name is for the time being registered in the
Register as the Holder of the Jupiters RPS;
"ISSUE DATE" means the date of issue of a Jupiters RPS;
"ISSUE PRICE" means $100.00;
"JUPITERS RESET PREFERENCE SHARE" or " JUPITERS RPS" means a reset
preference share issued in accordance with these Terms and Conditions;
"MATURITY DATE" means 6 April 2012;
"OUTSTANDING DIVIDEND" means, at any time while there are Jupiters RPS on
issue, a dividend equal to all Dividends that have not been paid by the
Company to Holders including unpaid Dividends and Additional Amounts. In
addition, where the Conversion Date is as set out in paragraph (b), (c) or
(e) of the definition of Conversion Date, the Outstanding Dividend will be
increased to reflect the accrued amount until the Conversion Date
(calculated in accordance with the formula in clause 2.1 for the period to
the Conversion Date where "Conversion Date" is substituted for "current
Dividend Payment Date" in the definition of "D" and with any Additional
Amount for the period calculated under clause 2.2 on the same basis). Where
the Outstanding Dividend is for purposes of a return of capital on a
winding up, the Outstanding Dividend will be increased to reflect the
accrued amounts to the date of the commencement of the winding up
(calculated in accordance with the formula in clause 2.1 for the period to
the date of commencement of winding up with that date substituted for
"current Dividend Payment Date" in the definition of "D" and with any
Additional Amount for that period calculated under clause 2.2 on the same
basis);
"ORDINARY SHARE" means a fully paid ordinary share in the capital of the
Company;
"RECORD DATE" in relation to a Dividend means the date on which the books
of the Company close for Jupiters RPS Holders in respect of that Dividend;
"REFERENCE PERIOD" means the period referred to in clause 6.2;
"REGISTER" means the register of Jupiters RPS maintained by the Company and
includes any sub-register established under the Clearing House Electronic
Sub-Register System (as defined in the ASX Listing Rules);
"RELATED BODY CORPORATE" of a body corporate means another body corporate
which is related to the first within the meaning of section 50 of the
Corporations Act;
"REPURCHASE" in relation to a Jupiters RPS, means buy-back, redeem or
cancel the Jupiters RPS in any manner permitted by law;
"REPURCHASE AMOUNT" means the greater of the Issue Price, (except in the
case of a Trigger Event comprising a Control Event, in which case it is the
Issue Price plus 25% of the Conversion Minimum multiplied by the Offer
------------------------------------
Price after subtracting the VWAP over the 20 Business Days immediately
preceding the announcement of the takeover or scheme of arrangement), or
VWAP during the 20 Business Days preceding the Conversion Date multiplied
by the Conversion Minimum;
"RESET DATE" means 9 April 2007;
"RESET NOTICE" means, in relation to a Jupiters RPS, a notice issued by the
Company in accordance with clause 3.1;
"RESET PERIOD" in relation to a Jupiters RPS, means the period from the
Reset Date relating to that Jupiters RPS to the Maturity Date relating to
that Jupiters RPS;
"SPECIAL CONVERSION RIGHT" means conversion by the Holder in accordance
with the right set out in clause 4.3;
"SWAP RATE" means the rate expressed as a percentage per annum calculated
as the average of the mid-point of the quoted average five year swap
reference rates at three pre-determined times on Reuters page CMBE (or any
page which replaces that page) on the relevant date;
"TAX ACT" means:
(a) the Income Tax Assessment Act 1936 or the Income Tax Assessment Act
1997 as the case may be as amended;
(b) any other Act setting the rate of income tax payable; and
(c) any regulation promulgated thereunder;
================================================================================
"TAX EVENT" means if the Directors resolve on reasonable grounds (having
obtained an opinion from reputable legal counsel or tax adviser) that a
change in any taxation law, interpretation or ruling issued by any relevant
governmental body has occurred (or is announced) and that change may result
in Jupiters being denied a tax deduction for payments on the Jupiters RPS;
"TERMS AND CONDITIONS" means these terms and conditions of issue;
"TRIGGER EVENT" means any one of the following events:
(a) a Dividend otherwise required to be paid under clause 2.1 is not paid
in full and/or an Additional Amount required to be paid under clause
2.2 is not paid in full (only applies where the Dividend Payment Test
is satisfied);
(b) the Company resolves in general meeting that it be wound up;
(c) the appointment of a provisional liquidator to the Company;
(d) the making of an order by a Court for the winding up of the Company
(other than to effect a solvent reconstruction);
(e) an administrator of the Company is appointed under sections 436A, 436B
or 436C of the Corporations Act;
(f) the Company executes a deed of company arrangement;
(g) the Ordinary Shares or Jupiters RPS are suspended from trading on ASX
for more than 20 successive Business Days;
(h) the Company announces its intention to sell all or substantially all
of its business undertaking or assets (other than to effect a solvent
reconstruction);
(i) a Control Event occurs; or
(j) the Company does not Repurchase the Jupiters RPS on the Maturity Date
in accordance with clause 7(c);
"VWAP" means the average of the daily volume weighted average sale price of
Ordinary Shares sold on ASX during the relevant period or on the relevant
days but does not include any transaction defined in the ASX Business Rules
as "special" crossings prior to the commencement of normal trading,
crossings during the after hours adjust phase nor any overseas trades or
the exercise of options over Ordinary Shares.
16. CALCULATION OF VWAP POST-CESSATION OF TRADING
---------------------------------------------
16.1 APPLICATION OF THIS CLAUSE
--------------------------
The provisions of this clause 16 apply notwithstanding any other clause of
--------------------------------------------------------------------------
these Terms and Conditions and override such other clauses to the extent of
---------------------------------------------------------------------------
any inconsistency.
------------------
16.2 DEEMED VALUE FOR VWAP
---------------------
In these Terms and Conditions, where a provision (including a defined term)
---------------------------------------------------------------------------
refers to a VWAP over a particular number of Business Days preceding a
----------------------------------------------------------------------
Conversion Date, and where the Ordinary Shares are not trading on ASX
----------------------------------------------------------------------
during that period, (for whatever reason, including, but not limited to
------------------------------------------------------------------------
suspension from trading) the relevant VWAP will be deemed to be the VWAP
------------------------------------------------------------------------
calculated over the corresponding number of Business Days immediately
---------------------------------------------------------------------
preceding the date on which the Ordinary Shares last traded on ASX (subject
---------------------------------------------------------------------------
to any adjustments required pursuant to clause 6.4), unless, having
-------------------------------------------------------------------
considered the matter, the Directors reasonably consider that that value is
---------------------------------------------------------------------------
inappropriate in the circumstances in which case the VWAP will be deemed to
---------------------------------------------------------------------------
be a value determined by the Directors to be appropriate. In making each
------------------------------------------------------------------------
such determination the Directors are to have regard to the purpose of VWAP
--------------------------------------------------------------------------
in the relevant provision in these Terms and Conditions.
--------------------------------------------------------
================================================================================
================================================================================