1
EXHIBIT 2.2
[▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LETTERHEAD]
SHARE SALE DEED
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BT INVESTMENTS (AUSTRALIA) LLC
BT FOREIGN INVESTMENT CORPORATION
BT NEW ZEALAND LIMITED
BT INTERNATIONAL (DELAWARE), INC.
BT NOMINEES (H.K.) LIMITED
DEUTSCHE BANK AG
BANKERS TRUST CORPORATION
PRINCIPAL FINANCIAL GROUP (AUSTRALIA) PTY LIMITED
PRINCIPAL FINANCIAL SERVICES, INC.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 12
1.3 Payments and currency 13
2. CONDITIONS PRECEDENT 14
2.1 Application of conditions precedent 14
2.2 Conditions precedent 14
2.3 Further conditions 15
2.4 Benefit of conditions 16
2.5 Satisfaction of conditions 16
2.6 Termination for failure to satisfy conditions precedent 17
2.7 Failure to satisfy further conditions 17
2.8 Offshore IB Businesses 17
2.9 Malaysian Securities Commission 17
3. GROUP CONDUCT BEFORE AND AFTER COMPLETION 18
3.1 General 18
3.2 Fiduciary and certain Investment Banking activities 20
3.3 Group Restructuring 20
3.4 Continuation of Infrastructure Support 20
3.5 Transitional arrangements 21
3.6 IB Linkages 21
3.7 Client Confidential Information 22
4. EMPLOYEE ARRANGEMENTS 22
5. SALE AND PURCHASE 24
6. COMPLETION 24
6.1 Place for Completion 24
6.2 Delivery of title documents 24
6.3 Delivery of general documents 25
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6.4 Approval of transfers 27
6.5 Completion Date board meetings 27
6.6 Payment of Purchase Price, re-financing and Transaction
Documents 27
6.7 Delay in satisfying conditions in Clause 2.3 28
6.8 OffShore FM Businesses 29
6.9 Post Completion loan balances 30
6.10 Parent Support Obligations 30
6.11 Custody arrangements 31
6.12 Deutsche Funds Management 31
7. NOTICE TO COMPLETE 31
7.1 Notice by the Purchaser 31
7.2 Notice by the Vendors 31
8. WARRANTIES, CLAIMS AND DISPUTES 32
8.1 Warranties and indemnity by the Warrantor 32
8.2 Warranties by the Purchaser and Purchaser's Guarantor 32
8.3 Effective dates 32
8.4 Disclosures 32
8.5 Construction 33
8.6 Limitation on Warrantor's and Vendors' liability 33
8.7 No reliance 36
8.8 Statutory actions 37
8.9 Indemnity 38
8.10 Dealing with Third Party Claim or Tax Claim after Completion
Date 38
8.11 Tax Assessment 41
8.12 Procedure for making Claim 42
8.13 Expert 43
8.14 Alterations to Purchase Price or Adjusted Purchase Price 43
8.15 Notification of Warranty breach before Completion 44
9. ACCESS TO AND RETENTION OF RECORDS 44
9.1 Access 44
9.2 Retention 45
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10. THE COMPLETION STATEMENT 45
10.1 Preparation of Completion Statement 45
10.2 Delivery of Completion Statement and Vendors' Accountants Report 45
10.3 Access to information 46
10.4 Review by Purchaser's Accountants 46
10.5 Basis of preparation of Completion Statement 46
10.6 Report by Purchaser's Accountants 46
10.7 Application of Clause 11.1 47
10.8 Resolution of disputes and application of Clause 11.2 47
10.9 Conclusiveness of report 48
10.10 Adjustment of Purchase Price 48
10.11 Costs 48
11. POST-COMPLETION ADJUSTMENT 48
11.1 If Completion Statement final 48
11.2 If the Accountants have disagreed 49
11.3 Interest on any adjustment amount 49
12. DROP DEAD DATE ADJUSTMENTS 49
12.1 Failure to complete 49
13. USE OF NAMES AND TRADE MARKS 50
13.1 Covenant not to use by Purchaser 50
13.2 Purchaser's use of BT Name 50
13.3 Covenant not to use by the Warrantor 51
13.4 Continuing use by Warrantor or Deutsche Group 52
13.5 Cancellation of registration 52
13.6 Acknowledgement by the Purchaser 52
13.7 Assignment or disposal of BT Name 53
13.8 Relinquish names 53
13.9 Distinctive Use 54
13.10 Protection of BT Name 54
13.11 Breach of covenant 55
13.12 Benefit of Purchaser covenants 55
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14. YEAR 2000 ISSUE 55
15. INSURANCE 56
16. NOTICES 56
17. NON-DISCLOSURE 57
17.1 Confidentiality 57
17.2 Exceptions 57
17.3 Public announcements 58
18. THE VENDORS' GUARANTOR'S GUARANTEE 58
18.1 Undertaking 58
18.2 Principal obligation 58
18.3 No withholdings 58
18.4 No set off 59
19. DEFAULT INTEREST 59
19.1 Rate 59
19.2 Accruals 59
20. FURTHER ASSURANCES 59
21. ENTIRE AGREEMENT 59
22. AMENDMENT 60
23. ASSIGNMENT 60
24. NO WAIVER 60
25. WAIVER EFFECTIVE 60
26. SEVERANCE 60
27. NO MERGER 60
28. COUNTERPARTS 61
29. STAMP DUTY AND COSTS 61
30. GOVERNING LAW 61
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31. THE PURCHASER'S GUARANTOR'S GUARANTEE 61
31.1 Undertaking 61
31.2 Principal obligation 61
31.3 No withholdings 62
31.4 No set off 62
32. SPECIAL INDEMNITY 62
SCHEDULES 1 - 14
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DATE 17 June 1999
PARTIES
1. BT INVESTMENTS (AUSTRALIA) LLC c/o Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (BTLLC);
BT FOREIGN INVESTMENT CORPORATION c/o Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(BTFIC);
BT NEW ZEALAND LIMITED of Level 7, Price Waterhouse Centre, ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ (BTNZ);
BT INTERNATIONAL (DELAWARE), INC. c/o U.S. Corporation Company ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (BTID); and
BT NOMINEES (H.K.) LIMITED of 36th Floor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ (BTNHK),
(each a VENDOR).
2. DEUTSCHE BANK AG (ARBN 064 165 162) of Level 28, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (the WARRANTOR).
3. BANKERS TRUST CORPORATION of BT Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (the VENDORS' GUARANTOR).
4. PRINCIPAL FINANCIAL GROUP (AUSTRALIA) PTY LIMITED (ACN 087 480 313) of
Level 17, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the PURCHASER).
5. PRINCIPAL FINANCIAL SERVICES, INC. of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (the PURCHASER'S GUARANTOR).
RECITALS
A Each Vendor is registered as the holder of the Sale Shares specified
against its name in Part I of Schedule 1.
B Each Vendor wishes, or is authorised by the beneficial owner, to sell the
Sale Shares held by it and the Purchaser wishes to purchase all of the Sale
Shares on the terms and subject to the conditions of this Deed.
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C The Vendors have requested the Warrantor to enter into this Deed for the
benefit of the Purchaser and the Purchaser's Guarantor.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTING PRINCIPLES means the principles, policies and procedures used in
the preparation of the Accounts and to be used in the preparation of the
Completion Statement, as set out in Schedule 7.
ACCOUNTS means the special purpose aggregated pro-forma balance sheet of
the Business prepared by the Vendors as at the Balance Date, a copy of
which has been initialled for identification by the Purchaser's solicitor
on behalf of the Purchaser and by the Vendors' solicitor on behalf of the
Vendors.
ADVISER means, in respect of a party, a legal, accounting, taxation,
financial or other expert adviser to that party and includes:
(a) where appropriate, the partners, Officers and employees of the
adviser; and
(b) in the case of the Vendors, the Vendors' Guarantor and the Warrantor,
any such adviser to a member of the Vendors' Group or of the Deutsche
Group.
ADJUSTED PURCHASE PRICE means, in respect of any particular Sale Shares or
Offshore FM Business, the Purchase Price of those Sale Shares or that
Offshore FM Business, as adjusted in accordance with Clause 10.
AUTHORISATION includes:
(a) any authorisation, approval, consent, license, permit, franchise,
permission, notification, filing, registration, lodgement, agreement,
notarisation, certificate, authority, resolution, direction,
declaration or exemption from, by or with a Public Authority; and
(b) in relation to anything which will be prohibited or restricted in
whole or part by law if a Public Authority intervenes or acts in any
way within a specified period after lodgement, filing, registration or
notification, the expiry of such period without such intervention or
action.
BT NAME means any name or mark that is or includes BT or anything
substantially or deceptively identical with or similar to BT, but does not
include BT Pyramid.
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BTAL means Bankers Trust Australia Limited (ACN ▇▇▇ ▇▇▇ ▇▇▇).
BTC means Bankers Trust Company of BT Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇.
BTC PYRAMID AGREEMENT means the proposed agreement between BTC and BTPS
under which BTPS agrees to provide administration services in respect of
the funds known (at the date of this Deed) as the PT Pyramid Funds, a draft
of which has been initialled for identification only by the Purchaser's
solicitors on behalf of the Purchaser and the Vendors' solicitors on behalf
of the Vendors.
BTCO means BTCO Australia Pty Limited (ACN 070 866 367).
BTCO AUSTRALIA AGREEMENT means the agreement between BTCO and BTPS under
which BTPS agrees to provide administration services to BTCO, a draft of
which has been initialled for identification only by the Purchaser's
solicitors on behalf of the Purchaser and the Vendors' solicitors on behalf
of the Vendors.
BTFMA means BT Funds Management Asia Limited.
BTFMIL means BT Funds Management (International) Limited (ACN 061 086 306).
BTFMS means BT Funds Management (Singapore) Limited.
BTI means Bankers Trust International Plc.
BTIA means BT Investments (Australia) Limited.
BTIA SHARES means all the shares in BTIA as described in column 3 of Part I
of Schedule 1.
BTIB COMPANY means a company described in Part IIB of Schedule 2.
BTIB GROUP means:
(a) the BTIB Companies; and
(b) IB Businesses, whether conducted through a BTIB Company or another
Group Member,
and in each case excluding any asset of any nature used in or relating to
the FM Businesses.
BTPS means BT Portfolio Services Limited (ACN 064 567 040).
BALANCE DATE means 31 December 1998.
BUSINESS means the business or businesses of the Group Members and the
Offshore FM Businesses, as carried on at the date of this Deed.
BUSINESS DAY means a day on which banks are open for business in Sydney and
New York.
BUSINESS NAME ACT means the relevant Business Names Act of the jurisdiction
specified against the Excluded Business Name in Schedule 11.
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CLAIMS (except in Clause 32) means claims, demands, actions, proceedings,
judgements, liabilities, losses, damages, costs and expenses (including
reasonable legal costs and disbursements on a solicitor-client basis)
whatever and in any way arising and, unless the context requires otherwise,
includes a Tax Claim.
In Clause 32, CLAIMS means losses, damages, costs and expenses (including
reasonable legal costs and disbursements on a solicitor-client basis)
whatever and in any way arising and includes a Tax Claim.
CLIENT CONFIDENTIAL INFORMATION means Confidential Information as defined
in the Confidentiality Deed dated 29 March 1999 between BTAL and Deutsche
Bank AG (Sydney Branch).
CLOSELY-HELD SUBSIDIARY has the meaning given in section 243M of the
Corporations Law.
COMPANY means a company specified in column 2 of Part I of Schedule 1.
COMPLETION means completion of the sale and purchase of the Sale Shares
under this Deed.
COMPLETION DATE means the last day of the calendar month in which the
Conditions Satisfaction Date occurs or, if either that last day is not a
business day or the Conditions Satisfaction Date occurs on the last day of
the calendar month, the next succeeding business day.
COMPLETION STATEMENT means the aggregated pro-forma balance sheet of the
Group and the Offshore FM Businesses as at the Completion Date (or if the
Completion Date is not the last day of a calendar month, the last day of
the immediately preceding calendar month) in the form set out in Schedule 6
which shall clearly set out the assets and liabilities attributable to the
FM Businesses and to the IB Businesses, based on the consistent application
of the methodology applied in preparing the Accounts and in determining the
assets and liabilities attributable to these two businesses as set out in
the Accounts. The assets and liabilities of the FM Businesses as set out in
the Completion Statement must be of a similar nature, quality and general
composition as those in the pro forma balance sheet for the FM Businesses
in the Accounts.
CONDITIONS SATISFACTION DATE means the date on which the last to be
satisfied of the conditions precedent in Clause 2.2 is satisfied.
CONFIDENTIAL INFORMATION includes know-how, trade secrets, technical
processes, information relating to products, finances, contractual
arrangements with customers or suppliers and other information which by its
nature, or by the circumstances of its disclosure to the holder of the
information, is or could reasonably be expected to be regarded as
confidential.
CONTRACT shall mean any written Investment Advisory Agreement entered into
by any Group Member and any lease, license or other agreement relating to
the use by any Group Member of any tangible or intangible property and
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all rights and interests of any Group Member arising under or in connection
with such agreement.
CORPORATE SERVICES means the corporate services group of the Group as
described in the Information Memorandum.
DEED OF ASSIGNMENT OF TRADE MARKS means the deed so named which has been
initialled for identification by the Purchaser's solicitor on behalf of the
Purchaser and by the Vendors' solicitor on behalf of the Vendors.
DEUTSCHE GROUP means Deutsche Bank AG (ARBN 064 165 162), its Related
Bodies Corporate and all of its Officers and Advisers.
DISCLOSURE LETTER means the letter dated 17 June 1999 and its annexures
from BTAL to the Directors of the Purchaser and the Purchaser's Guarantor
entitled Share Sale Deed - Disclosure Letter.
DISCLOSURE MATERIAL means:
(a) the material which was, at any time during the period 9 May 1999 to 28
May 1999, contained in the data room made available to the Purchaser
the indices for which have been initialled for identification purposes
only (and not to establish that the material was so contained in the
data room) by the Purchaser's solicitor on behalf of the Purchaser and
by the Vendors' solicitor on behalf of the Vendors; and
(b) the Disclosure Letter,
but does not include the IB Disclosure Material.
DROP DEAD DATE means 30 November 1999 or such other date agreed by the
parties.
EMPLOYEE DISCLOSURE means the material disclosed in relation to the
Employees as contained in the Disclosure Material.
EMPLOYEES means those persons who are, at any time between the date of this
Deed and the Completion Date, employees of the Group or the Offshore FM
Businesses.
ENCUMBRANCE means an interest or power:
(a) reserved in or over any interest in any asset including, without
limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a bill of sale, mortgage, charge, lien, pledge, trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
EXCLUDED BUSINESS NAME means each business name listed in Schedule 11.
EXCLUDED COMPANY means a Company, the sale of the shares of which does not
proceed by reason of Clause 2.7 and which becomes the subject of
adjustments under Clause 12, and any of its Closely-held Subsidiaries.
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EXCLUDED NAME means any name that is or includes any of the following words
or any word substantially or deceptively identical with or similar to those
words:
(a) Bankers Trust;
(b) ▇▇▇▇. ▇▇▇▇▇;
(c) ▇▇▇▇▇▇▇▇▇▇; and
(d) Pyramid.
EXCLUDED SHARES means the Sale Shares in a Relevant Company to which Clause
6.7(d) applies.
EXCLUSION DATE means the date upon which an Excluded Company ceases to be
the subject of a sale obligation by reason of Clause 2.7.
EXPERT means:
(a) an independent professional agreed by the Vendors and the Purchaser;
or
(b) failing agreement by the Vendors and the Purchaser within 3 business
days of the triggering of the expert referral provision, an eminent
independent professional who shall have qualifications and expertise
suitable to the dispute as determined and nominated by the President
of the Institute of Chartered Accountants in Australia or his duly
appointed delegate at the request of either the Vendors or the
Purchaser.
FM BUSINESSES means the funds management, portfolio services and margin
lending businesses of the Group as described in the Information Memorandum.
FRANKING ACCOUNT has the same meaning as in section 16OAPA of the 1936 Act,
and where relevant includes the calculation of an exempting surplus or
deficit at that particular time pursuant to proposed section 160AQCND.
FRANKING YEAR (has the same meaning as in section 16OAPA of the 1936 Act.).
GROUP means the Companies and the Subsidiaries.
GROUP MEMBER means any member of the Group.
GROUP RESTRUCTURING means the actions undertaken in connection with the
restructuring of the Group as set out in Schedule 3.
HSR ACT means the ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 of
the United States of America, as amended, and the rules and regulations.
promulgated under it.
IB BUSINESS means the Business other than the FM Businesses and the
Offshore IB Businesses.
▇▇ DEED means the deed so named dated the date of this Deed between the
Warrantor, the Purchaser, the Purchaser's Guarantor and BTAL (amongst
others) regarding the IB Businesses.
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IB DISCLOSURE MATERIAL means the material which was, at any time during the
period from 9 May 1999 to 28 May 1999, contained in the data room made
available to the Purchaser in the folders corresponding to the index number
IB-1 to IB-48 inclusive and the material contained in the folders placed in
the data room after 9 May 1999 up to and including 28 May 1999 to the
extent that it related solely to the IB Businesses or the Offshore IB
Businesses.
IB INDEMNITY means the indemnity given by the Warrantor set out in Clause
32.
INFORMATION MEMORANDUM means the information memorandum prepared by ▇▇▇▇▇▇▇
▇▇▇▇▇ Australia L.L.C. and Deutsche Bank Australia dated April 1999
relating to the Business.
INFRASTRUCTURE SUPPORT means all infrastructure support provided to the
Group and the Offshore FM Businesses at the date of this Deed and includes:
(a) office accommodation;
(b) access to computer networks and communication systems, including
internet and website facilities and online services;
(c) the provision of computers, primers, facsimile machines, telephones
and other office equipment;
(d) photocopying and mailroom services;
(e) "Help Desk" and other software, hardware, network and communication
systems support and maintenance services;
(f) systems and software products (not including source codes);
(g) banking facilities; and
(h) payroll and associated services for employees.
INVESTMENT ADVISORY AGREEMENTS means all agreements and arrangements for
the performance of investment advisory or investment management services
with respect to securities, real estate, commodities, currencies or any
other asset class for clients or on behalf of third parties (including
unincorporated joint ventures).
MALAYSIAN AGREEMENT means the agreement dated 12 June 1997 between Commerce
International Merchant Bankers Berhad (Company No. 18417-N), BTAL and the
Malaysian Company.
MALAYSIAN COMPANY means Commerce BT Unit Trust Management (Berhad (Company
No. 304078-K).
MAS means the Monetary Authority of Singapore.
MIA TRANSITION means Division 11 (where it second appears) of Part 11.2 of
the Corporations Law.
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NET ASSETS means the amount of the aggregated net assets of the Group and
Offshore FM Businesses as at the Completion Date as disclosed in the
Completion Statement or a report by the Expert delivered under Clause 10.8
(as the case may be).
OFFICER has the meaning given in section 82A of the Corporations Law.
OFFSHORE FM BUSINESSES means the following offshore funds management
operations:
(a) the management of the BT International Investment Series of funds in
Ireland, as performed by a subsidiary of the Vendors' Guarantor called
BT Fund Managers (Ireland) Limited;
(b) the marketing and distributing of the BT International Investment
Series of funds and the marketing of BTFMIL's institutional funds
management capabilities, as performed in the United Kingdom by BTI;
(c) the services provided by BTC under the Alberta Contract (as defined in
Clause 6.8(c)); and
(d) the management of US securities for the Common Fund Bond Portfolio (as
described in Clause 6.8(d)).
OFFSHORE IB BUSINESSES means the following offshore investment banking
operations presently carried on using local staff and staff seconded from
BTAL in New York, Chicago, Sao Paulo, London, Paris, Hong Kong and
Singapore:
(a) THE METALS AND MINING BUSINESS, which is carried on in New York and
London by BTC and BTI in respect of precious and base metal OTC
transactions. BT Bank of Canada is also used as a booking vehicle. The
precious metal book is housed and hedged in BTC while the base metal
books are housed and hedged in BTI;
(b) THE SOFT COMMODITIES BUSINESS, which is carried on in New York,
Chicago and Sao Paolo by BTC and in London by BTI in respect of sugar
only with these trades backed into BTAL;
(c) THE BTAL LONDON SYCOM TERMINAL, used to deal in Sydney Futures
Exchange traded futures contracts on behalf of clients predominantly
in the United Kingdom;
(d) THE DEBT MARKETS DESKS IN LONDON AND NEW YORK, which deal in
Australian and New Zealand dollar denominated bonds and other debt
securities in those jurisdictions. The London desk executes
transactions in the name of BTI and backs these trades into BTAL. The
New York desk executes transactions in the name of BT ▇▇▇▇. ▇▇▇▇▇,
Inc. and backs these trades into BTAL;
(e) THE DEBT MARKETS DESK IN HONG KONG, which undertakes origination and
dealer activities as part of debt issuance programs of
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Australian and New Zealand issuers in the name of BT Asia Limited; and
(f) THE EQUITIES DESKS IN NEW YORK, SINGAPORE, LONDON AND PARIS, which
deal in Australian equity securities for local customers in those
jurisdictions.
PARENT SUPPORT OBLIGATIONS means the guarantees, indemnities and other
support obligations listed in Schedule 14 and any other guarantees,
indemnities and other support obligations given by any member of the
Vendors' Group (other than the Officers and Advisers forming part of the
Vendor's Group) to any party to better secure the performance of any
obligations of any Group Member, but excluding any liability of the
Vendors' Group under a Transaction Document or in respect of any of the IB
Businesses or Offshore IB Businesses.
PRELIMINARY NET ASSETS means the amount of aggregated net assets of the
Group and Offshore FM Businesses as at the Balance Date as disclosed in the
Accounts.
PUBLIC AUTHORITY includes:
(a) any government in any jurisdiction, whether federal, state,
territorial or local;
(b) any minister, department, office, Taxation Authority, commission,
delegate, instrumentality, agency, board, authority or organisation of
any government or in which any government is interested;
(c) any non-government regulatory authority; and
(d) any provider of public utility services, whether or not government
owned or controlled.
PURCHASE PRICE means, in respect of any particular Sale Shares or Offshore
FM Business, the consideration for the purchase of those Sale Shares or
that Offshore FM Business as specified in column 4 of Part I of Schedule 1
or column 3 of Part II of Schedule 1, as the case may be.
PURCHASER ENTITIES means the Purchaser and any Related Body Corporate or
child entity of the Purchaser (as that expression is defined in Part 2E.2
of the Corporations Law) from time to time (and, following the Completion
Date, includes each Group Member).
PURCHASER'S ACCOUNTANTS means a firm of accountants nominated by the
Purchaser.
PYRAMID DEVICE means the pyramid logo in all its forms as used by or
registered as a trade mark by BTC or its Related Bodies Corporate on or
before the date of this Deed.
REAL PROPERTY means the leasehold and freehold property listed in Schedule
12.
RECORDS means the original version, or a certified copy, of all books of
account, accounts, records and data owned by or relating to any Group
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Member, the Business or the property of any Group Member (whether in
machine readable or printed form), including any source material used to
prepare any of the records described above.
RELATED BODY CORPORATE means, in relation to a body corporate, a body
corporate which is related to it within the meaning of section 50 of the
Corporations Law.
RELEVANT COMPANY, RELEVANT DATE and RELEVANT SHARES each have the meanings
provided by Clause 6.7.
RELIEF means any loss, relief, allowance, exemption or exclusion, set-off,
deduction, rebate, right to repayment or credit or other relief of a
similar nature granted by or available in relation to Tax, pursuant to any
legislation.
REPORTED EXCESS and REPORTED SHORTFALL have the meanings provided by clause
10.2(b).
RULING REQUESTS means applications lodged on behalf of any Group Member
nominated by the Vendors or the Warrantor, for a private ruling under Part
IVAA of the Taxation Administration Act 1953 (Cth):
(a) that neither Part IVA of the Tax Act nor any other relevant tax
avoidance provisions in the Tax Act have any application to the
transaction effected under this Deed; and
(b) in relation to any other matter identified by the Vendors or the
Warrantor and approved by the Purchaser (such approval not to be
unreasonably withheld).
SALE SHARES means the shares specified in Part I of Schedule 1 and when
used in respect of a particular Vendor means the Sale Shares specified
against its name in Part I of Schedule 1.
SFC means the Hong Kong Securities and Futures Commission.
SHARED SERVICES AGREEMENTS means the agreements by which certain members
of the Vendors' Group and certain of the Companies agree that one will
provide information technology services and facilities to the other for a
transition period of no more than 18 months from the Completion Date, to be
entered into on or before the Completion Date in a form approved in writing
by the Purchaser.
SPECIFIC EMPLOYEE DISCLOSURES means Annexures B, C, D and E of the
Disclosure Letter.
STATUTORY ACCOUNTS means the annual audited financial statements of BTAL
and its controlled entities prepared as at the Balance Date.
STEWARDSHIP COMMITTEE means the "Co-ordination Group" established for the
purposes of overseeing the operations of the Business from 4 June 1999 to
the Completion Date.
STEWARDSHIP DOCUMENT means the document called Deutsche Bank Australia/
Bankers Trust Australia Limited Management Post COC, a copy of which has
been initialled for identification by the Purchaser's solicitor on
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behalf of the Purchaser and by the Vendors' solicitor on behalf of the
Vendors.
SUBSIDIARIES means the subsidiaries of the Companies as described in Part
IIA of Schedule 2.
SYSTEM means any computer software and computer hardware howsoever used and
any embedded system or device used to control, monitor or assist the
operation of equipment, machinery or plant and includes any data to be.
used by any of the foregoing.
TAX includes any tax, impost, deduction, charge, rate, duty, compulsory
loan or withholding which is collected or administered by a Taxation
Authority pursuant to a law of any jurisdiction in the nature of a tax on
income or profits (including capital gains), and any related interest,
penalty, additional tax, charge, fee or other amount and also includes
(Without limitation) any withholding taxes, prepayments or advance payments
with respect to such taxes. TAX also includes customs duty, excise duty,
sales tax, value added or goods and services tax, franking additional tax,
fringe benefits tax, payroll tax, stamp duty, taxes in respect of
superannuation or pensions, other social security taxes and any
corresponding or similar taxes in any jurisdiction and any related
interest, penalty, additional tax, charge, fee or other amount.
TAX ACT means the 1936 Act and the 1997 Act.
TAX CLAIM means any claim, assessment, notice, determination, demand or
other document issued or action taken by or on behalf of any Taxation
Authority whereby any Group Member either is liable or is sought to be made
liable to make any Tax payment or is denied or sought to be denied any
Relief and includes any Claim arising from the lodgment of a Ruling
Request.
TAX PROVISION means the aggregate amount of the provisions in relation to
Tax in the Completion Statement.
TAX WARRANTIES means the warranties set out in Part II of Schedule 4.
TAX YEAR means the annual period, or in respect of the period including the
Completion Date the shorter period allowed by a Taxation Authority, in
respect of which a Tax liability may arise.
TAXATION AUTHORITY means any governmental authority or instrumentality
responsible for the collection or administration of Tax.
TOTAL ADJUSTED PURCHASE PRICE means the Total Purchase Price as adjusted in
accordance with Clause 10.
TOTAL PURCHASE PRICE means the total Purchase Price for all of the Sale
Shares and the Offshore FM Businesses, being the amounts specified in
Schedule 1.
TRADE MARKS has the meaning given in the Deed of Assignment of Trade Marks.
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TRANSACTION DOCUMENTS means this Deed, the IB Deed, the Deed of Assignment
of Trade Marks, the Shared Services Agreements, the BTCO Australia
Agreement and the BTC Pyramid Agreement.
TRANSITION DATE means the date which is six months after the Completion
Date.
VENDORS' ACCOUNTANTS means KPMG of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇.
VENDORS' ACCOUNTANT'S REPORT means the report by the Vendors' Accountants
to be delivered under Clause 10.2.
VENDORS' GROUP means the Vendors, their Related Bodies Corporate (excluding
Group Members) and all of their Officers and Advisers from time to time.
WARRANTIES means:
(a) the warranties and representations by the Warrantor set out in Parts I
and II of Schedule 4 of this Deed; and
(b) any other conditions, warranties or representations which cannot be
excluded under statute or the general law by or against the Vendors or
the Warrantor in connection with the transactions contemplated by the
Transaction Documents.
YEAR 2000 ISSUES means any failure of a System to comply with the
requirements set out in the Australian Standards SAA/SNZ MP77:1998A
Definition of Year 2000 Conformity Requirements, such requirements being
that neither performance nor functionality is affected by dates prior to,
during or after the year 2000. In particular:
Rule 1: No value for current date will cause any interruption in
operation.
Rule 2: Date-based functionality must behave consistently for dates
prior to, during and after year 2000.
Rule 3: In all interfaces and data storage, the century in any date
must be specified either explicitly or by unambiguous
algorithms or inferencing rules.
Rule 4: Year 2000 must be recognised as a leap year in terms of
handling both 29 February and day 366.
1936 ACT means the Income Tax Assessment Act 1936 (Cth).
1997 ACT means the Income Tax Assessment Act 1997 (Cth).
1.2 INTERPRETATION
HEADINGS are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The SINGULAR includes the plural and conversely.
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(b) A GENDER includes all genders.
(c) Where a WORD or PHRASE is defined, its other grammatical forms have a
corresponding meaning.
(d) A reference to a PERSON includes a body corporate, an unincorporated
body or other entity and conversely.
(e) A reference to a CLAUSE or SCHEDULE is to a clause of or schedule to
this Deed.
(f) A reference to a PARAGRAPH is to a paragraph in the Clause in which
the reference appears.
(g) A reference to any PARTY to this Deed or any other agreement or
document includes the party's successors and permitted assigns.
(h) A reference to any AGREEMENT or DOCUMENT is to that agreement or
document as amended, novated, supplemented, varied or replaced from
time to time, except to the extent prohibited by this Deed or that
other agreement or document.
(i) A reference to any LEGISLATION or to any provision of any legislation
includes any modification or re-enactment of it, any legislative
provision substituted for it, and all regulations and statutory
instruments issued under it.
(j) A reference to $ is to Australian currency unless otherwise specified.
(k) Each Schedule and exhibit and each certificate and document delivered
under this Deed forms part of this Deed.
(l) A reference to CONDUCT includes any omission, representation,
statement or undertaking, whether or not in writing.
(m) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(n) Any statement made by a party on the basis of its KNOWLEDGE, BELIEF OR
AWARENESS, is made on the basis that the party has, in order to
establish that the statement is true and not misleading in any
material respect, made all reasonable enquiries of the officers,
managers, employees and other persons who could reasonably be expected
to have information relevant to the matters to which the statement
relates and that, as a result of those enquiries, the party has no
reason to doubt that the statement is true and not misleading in any
material respect.
(o) In the interpretation of this Deed, no rules of construction are to
apply to the disadvantage of one party on the basis that the party put
forward this Deed or any part of it,
1.3 PAYMENTS AND CURRENCY
(a) (GENERAL) Subject to paragraph (c), where this Deed specifies a
currency in which a payment must be made, the payment must be
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made in that currency and the person obliged to make the payment will
bear any exchange rate risk. Where no currency is specified then,
unless the relevant parties agree otherwise, the payment must be made
in Australian dollars.
(b) (COMPLETION STATEMENT AND TAX PROVISION) Notwithstanding the fact that
the amounts in the Completion Statement are shown in Australian
currency, the adequacy of a provision, reserve, accrual or allowance
or, in the case of an asset (such as Relief in the form of a right to
repayment), the value of that asset in respect of a Group Member,
whether in the Completion Statement or in the Tax Provision itself, is
to be measured by reference to:
(i) in the case of the Completion Statement, any local currency
amount which has been converted into Australian currency for the
purposes of the Completion Statement (and not the corresponding
amount of Australian currency); and
(ii) in the case of the Tax Provision, any local currency amount in
which the relevant liability to Tax or Relief arises, using the
same conversion rate as is used in the Completion Statement (and
not the corresponding amount of Australian currency),
so that the Vendors shall not incur any liability nor obtain any
benefit under this Deed merely because of a movement in the relevant
exchange rate after the Completion Date.
(c) (TOTAL PURCHASE PRICE) Notwithstanding any other provision of this
Deed, the Total Purchase Price shall be Payable in US Dollars
calculated at the exchange rate of AUD1 = USD0.658 and the adjustments
to the Purchase Price and the Total Purchase Price (if any) payable
under any Transaction Document shall be in AUD.
2. CONDITIONS PRECEDENT
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2.1 APPLICATION OF CONDITIONS PRECEDENT
Clause 2.2 applies in its entirety to the sale and purchase of the Sale
Shares and Clauses 5 and 6 do not bind the parties unless and until each of
the conditions in Clause 2.2 is satisfied in respect of such sale or waived
by the Vendors and the Purchaser.
2.2 CONDITIONS PRECEDENT
The conditions precedent to which Clauses 5 and 6 of this Deed are subject,
in the manner specified in Clause 2.1, are as follows:
(a) (FOREIGN INVESTMENT APPROVAL) The Purchaser files a notice under
section 25 of the Foreign Acquisitions and Takeovers Act and any of
the following occurs:
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(i) (NOTICE OF NO OBJECTION) The Purchaser receives a notice from
the Australian Treasurer to the effect that there is no
objection to the acquisition of the BTIA Shares under the
Commonwealth Government's foreign investment policy. The notice
must be either unconditional or impose conditions which are not
materially prejudicial to the interests of the Purchaser,
(ii) (EXPIRATION OF WAITING PERIOD) The period provided under the
Foreign Acquisitions and Takeovers Act, during which the
Treasurer may make an order under section 18 or an interim order
under section 22 in relation to the acquisition of the BTIA
Shares, elapses without such an order being made.
(iii) (EXPIRATION OF INTERIM ORDER) If an interim order under section
22 is made, the subsequent period for making a final order
prohibiting the acquisition of the BTIA Shares elapses without a
final order being made.
(b) (FINANCIAL SECTOR (SHAREHOLDINGS) ACT APPROVAL) The Purchaser files an
application to acquire a 100% stake in BTAL, Bankers Trust Life
Limited and BT Australia Limited under section 13(l)13(l) of the
Financial Sector (Shareholdings) Act 1998 (the FSSA) and receives a
notice from the Australian Treasurer approving the application under
the FSSA. The notice must be either unconditional or impose conditions
which are not materially prejudicial to the interests of the
Purchaser.
(c) (HSR ACT) The Purchaser's Guarantor and the Purchaser on the one hand
and the Warrantor and the Vendors' Guarantor on the other hand file
notifications pursuant to the HSR Act and the applicable waiting
period and any extensions thereof expire or terminate.
(d) (INSURANCE REGULATIONS) The Purchaser's Guarantor and the Purchaser
seek and obtain necessary approvals from the insurance regulatory
authorities in the State of Iowa and the State of New York as may be
required for the Purchaser to complete the transactions contemplated
by the Transaction Documents, where such approvals are either
unconditional or impose conditions which are not materially
prejudicial to the interests of the Purchaser's Guarantor or the
Purchaser, and such approvals have not expired or been rescinded
before the Completion Date.
2.3 FURTHER CONDITIONS
Completion of the sale and purchase of:
(a) (OIR APPROVAL) the shares in BT Funds Management (NZ) Limited, BT New
Zealand Nominees Limited and BT Portfolio Services (NZ) Limited is
conditional upon the Purchaser receiving in writing any consent
necessary under the Overseas Investment Regulations 1995 of New
Zealand for the implementation of this Deed.
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(b) (HONG KONG SFC) the shares in BTFMA is conditional upon approval from
the SFC to the Purchaser or its nominee becoming a substantial
shareholder (as defined in the Securities and Futures Commission
Ordinance (Cap.24 in the laws of Hong Kong)) in BTFMA.
(c) (SINGAPORE MAS) the shares in BTFMS is conditional upon approval from
the MAS to the Purchaser or its nominee acquiring the entire issued
share capital of BTFMS.
The consent, clearance or authorisation (as the case may be) and approvals
referred to above must be either unconditional or impose conditions which
are not materially prejudicial to the interests of the Purchaser.
2.4 BENEFIT OF CONDITIONS
Each of the conditions in Clauses 2.2 and 2.3 are for the benefit of the
Vendors and the Purchaser and may only be waived if they all agree to do
so.
2.5 SATISFACTION OF CONDITIONS
The Purchaser shall file all necessary notices or applications in relation
to, and the Vendors and the Purchaser shall use all reasonable endeavours
to ensure the satisfaction of, each of the conditions in Clauses 2.2 and
2.3, as soon as practicable. Without limiting the generality of the
foregoing:
(a) the Purchaser will promptly inform the Vendors if any condition has
been imposed in respect of any matter referred to in Clause 2.2 or 2.3
and whether that condition is considered materially prejudicial to the
Purchaser's interests;
(b) the Purchaser shall in respect of any application for approval
referred to in Clause 2.2 or 2.3 (unless the Vendors waive such right
of consultation or disclosure, as applicable):
(i) consult with the Vendors as to the content of any such
application or other material correspondence in relation to such
application; and
(ii) provide a copy of all or part of any such application in the
usual manner (deleting such matters as are confidential or
commercially sensitive for the Purchaser, in its discretion)
before lodgement of any such application or, in respect of the
applications under Clause 2.2(d), as soon as reasonably
practicable after the date of this Deed; and
(c) the Vendors shall provide such information as may reasonably be
requested by the Purchaser in connection with any such application for
approval.
The Purchaser shall at all times keep the Vendors informed of progress in
satisfying the conditions listed in Clauses 2.2 and 2.3 and of any material
developments in relation thereto and shall, on the satisfaction of each
condition, immediately notify the Vendors in writing of that fact.
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2.6 TERMINATION FOR FAILURE TO SATISFY CONDITIONS PRECEDENT
This Deed will automatically terminate on the close of business on the Drop
Dead Date if, any of the conditions precedent in Clause 2.2 is not
satisfied or waived by the Vendors and the Purchaser by that time. Any
termination shall be without prejudice to any right any party may have
against another party or parties if it or they did not use reasonable
endeavours as required in Clause 2.5 or for breach of Clause 17 but
otherwise no party shall have any liability by reason of the termination.
2.7 FAILURE TO SATISFY FURTHER CONDITIONS
The failure to satisfy any of the conditions in Clause 2.3 shall not
entitle any party to terminate this Deed. If any condition in Clause 2.3 is
not satisfied or waived by the Vendors and the Purchaser by the Drop Dead
Date, then the sale and purchase of the Sale Shares in the relevant Company
affected by that failure shall not proceed as contemplated in Clause
6.7(d). Any failure to proceed shall be without prejudice to any right any
party may have against another party or parties if it or they did not use
reasonable endeavours as required in Clause 2.5, but otherwise no party
shall have any liability by reason of that sale and purchase not proceeding
(other than in relation to the adjustment of the Purchase Price as provided
for in Clause 12.1 (b)).
2.8 OFFSHORE IB BUSINESSES
The Purchaser acknowledges that the Offshore IB Businesses are not the
subject of sale pursuant to this Deed and may be retained or sold by the
relevant member(s) of the Vendors' Group as they see fit.
2.9 MALAYSIAN SECURITIES COMMISSION
The Purchaser must apply promptly after the date of this Deed for the
written approval of the Malaysian Securities Commission for the indirect
change in control of a shareholder in Commerce Asset Fund Managers Sdn Bhd
that will arise on Completion of the sale and purchase of the BTIA Shares.
If such approval is not obtained by the Completion Date, the shareholding
interest in that company held by BTAL will be transferred, subject to the
rights of pre-emption, if any, triggered as a result of such proposed
transfer, on the Completion Date to a member of the Deutsche Group
nominated by the Vendors' Guarantor at its book value and, in any case,
Completion of the sale and purchase of the BTIA Shares will proceed.
Notwithstanding the previous sentence, the Purchaser shall continue to
comply with Clause 2.5 in respect of the relevant application and, if such
approval is received on or before the Drop Dead Date unconditionally or on
terms which are not materially prejudicial to the interests of the
Purchaser and if the transfer to the member of the Deutsche Group is
effected without the exercise of the rights of pre-emption and if the
rights of pre-emption triggered by the following proposed transfer to the
Purchaser under this Clause 2.5 are not exercised, the Purchaser shall
acquire such shareholding interest from the then current holder for the
same book value within 3
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business days of receipt of such approval or such later time, if so
required in order to comply with the rights of pre-emption provisions.
3. GROUP CONDUCT BEFORE AND AFTER COMPLETION
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3.1 GENERAL
(a) Other than any action or transaction expressly contemplated by this
Deed or by any other Transaction Document, the Vendors shall:
(i) ensure that the Group continues to carry on the Business in the
ordinary and usual course (but subject to the terms of the
Stewardship Document);
(ii) use reasonable endeavours to preserve the Group's present
business organisation and relationships;
(iii) use reasonable endeavours to preserve the Group's rights,
goodwill, reputation and relations with its customers and others
with whom the Group Members conduct business; and
(iv) ensure that any and all insurance contracts which cover Group
Members as at the date of this Deed are maintained until the
Completion Date.
For the purposes of this Deed ORDINARY AND USUAL COURSE OF BUSINESS
and similar phrases includes taking any action to ensure or facilitate
compliance with any new regulatory or legislative requirements
(including, for example, MIA Transition).
(b) Without limiting the generality of paragraph (a) above and except as
contemplated by this Deed or any other Transaction Document, the
Vendors shall ensure that, subject to Clause 3.2, no Group Member
does, or agrees to do, any of the following things during the period
from the date of this Deed to the Completion Date (inclusive) without
the prior written consent of the Purchaser.
(i) (NO BUSINESS ACQUISITIONS) Acquire any assets the consideration
for which is in excess of $2,000,000.
(ii) (NO DISPOSALS) Dispose of or create any Encumbrance, over any
asset of a value, individually or in the aggregate, in excess
of $2,000,000.
(iii) (NO FINANCIAL INDEBTEDNESS) Incur any financial indebtedness or
obtain any financial accommodation or give any guarantee or
indemnity in excess of $2,000,000 or any series of similar
commitments which would involve liability in excess of
$2,000,000 in total.
(iv) (NO MATERIAL COMMITMENTS) Enter into any other commitment which
will involve expenditure by the Group Member in excess of
$2,000,000 or any series of similar
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commitments which would involve expenditure by the Group
Member in excess of $2,000,000 in total.
(v) (NO NEW ISSUES) Allot or issue any share capital or any
securities or other rights which are convertible into share
capital of any Group Member.
(vi) (NO DISTRIBUTIONS) Declare or pay any dividend, make any other
distribution of its profits, reserves or assets, reduce its
capital, repay any shareholder's loan or advance or buy back
any of its shares.
(vii) (NO ALTERATIONS TO CONSTITUENT DOCUMENTS) Make any alterations
to its constitution.
(viii) (EMPLOYMENT CONDITIONS) Vary, whether orally or in writing, the
terms of employment, including severance, redundancy or change
in control entitlements, of any Employees.
(ix) (NO AFFILIATE TRANSACTIONS) Enter into any transaction with BTC
or any other member of the Deutsche Group (but not including
Group Members) involving payments in excess of $500,000 in the
aggregate.
(x) (MOVEMENT OF EMPLOYEES TO FM) Move or re-allocate any Employees
from the IB Businesses or Corporate Services to the FM
Businesses.
(xi) (NO HIRE) Hire any employee with an annual total compensation
(excluding discretionary bonuses) in excess of $100,000.
(xii) (NO COMPENSATION INCREASES) Increase or commit to increase the
compensation, including any commission, bonus, retention
payments or other direct or indirect remuneration, paid or
payable to any Employee (other than normal compensation
increases made in the ordinary course of business consistent
with prior practice).
(xiii) (NO CAPITAL EXPENDITURES) Make any capital expenditures in
excess, in aggregate, of $1,000,000.
(xiv) (NO ALTERATIONS TO ACCOUNTING PRINCIPLES) Amend, modify or
supplement in any respect the Accounting Principles.
(xv) (NO ALTERATIONS TO CONTRACTS) Create, renew, amend, terminate
or cancel, or take any other action that may result in the
creation, renewal, amendment, termination or cancellation of,
any Contract except in the ordinary course of business.
(xvi) (NO TERMINATIONS) Terminate the employment of any Employee of
the Business at the Senior Vice President level or above.
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(xvii) (NO NEW LINE OF BUSINESS) Enter into any new line of business.
(xviii) (NO CORPORATE RESTRUCTURING) Effect any restructuring relating
to or affecting the Group other than the Group Restructuring.
3.2 FIDUCIARY AND CERTAIN INVESTMENT BANKING ACTIVITIES
Nothing in Clause 3.1 restricts, or requires the Purchaser's consent to,
any action which may be undertaken by a Group Member:
(a) as manager, trustee or custodian of a collective investment scheme or
in any other fiduciary capacity;
(b) in the ordinary and usual course of carrying out the investment
banking business of the Group's Sales and Trading Division, Finance
Division or Equities Division; or
(c) in the performance of any rights or obligations under any Transaction
Document.
Any transaction not capable of being undertaken without alteration of the
management or credit approval limits applicable as at the date of this Deed
would not be entered into in the ordinary and usual course of business.
3.3 GROUP RESTRUCTURING
The Purchaser acknowledges and consents to the implementation of the Group
Restructuring and the Vendors undertake to complete the Group Restructuring
before the Completion Date except in respect of the payment of dividends
declared on or before the Completion Date which dividends the parties shall
procure will be paid on the dates determined in accordance with Schedule 3.
3.4 CONTINUATION OF INFRASTRUCTURE SUPPORT
(a) (SERVICES TO CONTINUE) The Warrantor must ensure that all
Infrastructure Support provided to the FM Businesses by the BTIB Group
or by a member of the Vendor's Group as at the date of this Deed,
continues to be provided to the FM Businesses, on no less favourable
terms, for such transition period after the Completion Date as the
Purchaser reasonably requires (but not exceeding 6 months) to replace
those services without any material adverse effect on the FM
Businesses.
(b) (SHARED SERVICES) The Warrantor and the Purchaser must use all
reasonable endeavours to procure that the relevant companies enter
into the Shared Services Agreements at or prior to the Completion Date
in respect of the services to be provided by members of the Vendors'
Group to certain of the Group Members and by certain Group Members to
members of the Vendors' Group, together with
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any other services required to be provided under paragraph (a) or
otherwise agreed by the parties.
(c) (PURCHASER'S ROLE) Subject to the arrangements made under paragraphs
(a) and (b), the Purchaser shall be responsible for providing
Infrastructure Support to the Group and the Offshore FM Businesses
from the Completion Date and shall use all reasonable endeavours to
ensure that it is in a position to do so. This obligation shall only
apply in respect of IB Businesses if and for so long as the Purchaser
owns them.
(d) (CO-OPERATION) Subject to the arrangements made under paragraphs (a)
and (b), the Vendors and the Purchaser shall cooperate and do all
things reasonably necessary to achieve an orderly handover from the
Vendors' Group to the Purchaser of the responsibility for providing
Infrastructure Support to the Group and the Offshore FM Businesses.
This obligation shall only apply in respect of IB Businesses if and
for so long as the Purchaser owns them.
3.5 TRANSITIONAL ARRANGEMENTS
On and from the date of this Deed to the Completion Date the following
arrangements shall apply to assist in ensuring a smooth and efficient
transfer of the Business:
(a) the Vendors shall ensure that the Purchaser Entities and their
Officers and Advisers are given reasonable access during normal
business hours to inspect the assets, properties, books of accounts,
records and documents of the Business;
(b) the Purchaser Entities and their Officers and Advisers shall keep
confidential any confidential information so obtained;
(c the Vendors' Group and the Purchaser Entities shall ensure that they
provide such reasonable assistance as requested by the other party for
the purposes of Clause 3.4 and the Shared Services Agreements;
(d) the Vendors' Group shall ensure that the Purchaser has reasonable
access to all Employees and clients of the Business;
(e) the Vendors shall provide the Purchaser with an office in the Group's
Chifley Tower premises for the purpose of monitoring and implementing
the transitional arrangements under Clause 3.4 to Clause 3.6. The
office will be of a size and with access to facilities necessary for
this purpose; and
(f) the Warrantor shall ensure that the Stewardship Committee consists of
representatives of the Purchaser in a number equal to the number of
representatives of the Warrantor.
3.6 IB LINKAGES
As soon as practicable after the date of this Deed, the Warrantor shall
procure that the Purchaser is provided with sufficient information to
enable
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the Purchaser to determine the Employees and services that are, as at the
date of this Deed, provided to or shared with the FM Businesses by the BTIB
Group or Corporate Services (respectively, SHARED EMPLOYEES and SHARED
SERVICES). Within 10 business days of receipt of such information, the
Purchaser must notify the Warrantor of the Shared Employees and Shared
Services it requires for the purposes of running the FM Businesses with
effect from the Completion Date and:
(a) any Shared Services notified by the Purchaser will form part of the
FM Businesses for all purposes;
(b) any Shared Employees notified by the Purchaser will form part of the
FM Businesses for all purposes; and
(c) any Shared Services and Shared Employees not notified by the Purchaser
will remain or form part of the BTIB Group.
3.7 CLIENT CONFIDENTIAL INFORMATION
The Warrantor shall ensure that, from the date of this Deed to the
Completion Date, none of the members of the Deutsche Group or any of
their respective employees use any Client Confidential Information to
develop, market, offer for sale or sell any of its fund management products
(other than, until the Completion Date, the products of the FM Business) to
any person.
4. EMPLOYEE ARRANGEMENTS
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(a) (RETENTION ARRANGEMENTS) The Purchaser shall be responsible to make
whatever arrangements it may consider necessary or desirable with
effect on and from the Completion Date to secure from such time the
continuing services of any Employees.
(b) (VENDORS' ROLE) The Vendors have no obligation to use any endeavours
to retain any Employees in employment or to make any arrangements to
seek to ensure that their employment or services continue before or
after the Completion Date. The Purchaser shall not be entitled to make
any Claim before or after the Completion Date against any member of
the Vendors' Group nor shall any right of rescission or termination of
any Transaction Document arise by reason of any person ceasing at any
time to be an Employee.
(c) (REDUNDANCY INDEMNITY FROM THE PURCHASER) The Purchaser shall
indemnify the Vendors and the Warrantor for any loss suffered or
incurred by any of them (including as a result of any reduction made
in calculating the Net Assets to reflect a payment made by a Group
Member before the Completion Date) as a result of:
(i) any Employee being made redundant after the date of this Deed
but before the Completion Date at the written request of the
Purchaser; or
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(ii) any Claim made against the Vendors or the Warrantor by any
Employee where a provision has been in made in the Completion
Statement in accordance with section 3.3 of the Accounting
Principles but only to the extent of that provision.
(d) (COC PLANS AND REDUNDANCY POLICIES) The Purchaser represents and
warrants that it is aware of the terms of the plans called the Bankers
Trust New York Corporation Change in Control Severance Plan I and
Bankers Trust New York Corporation Change in Control Severance Plan II
(each a PLAN and, together, the PLANS) and the policies known as the
BTAL Redundancy Policy for Professional Employees and BTAL Redunduncy
Policy for Fortnightly Employees (each a POLICY and, together the
POLICIES) copies of which were included in the Disclosure Material.
(e) (COC PAYMENTS) The Vendors shall ensure that all amounts to which
Employees become entitled as a direct result of the merger between BTC
and Circle Acquisition Corporation will be paid to those Employees on
or before the Completion Date. This obligation does not relate to
amounts payable pursuant to the Plans or Policies.
(f) (OBLIGATIONS TO EMPLOYEES) The Purchaser shall (or shall procure one
of its Related Bodies Corporate to) with effect from the Completion
Date and until 4 June 2001:
(i) provide similar plans to the Plans or similar benefits as
provided under the Plans, to the extent referred to in clause 10
of those Plans; and
(ii) provide or continue to provide all Employees who are employed by
the Group or the Offshore FM Businesses at the Completion Date
with Comparable Employment (as defined in clause 10 of the Plan
in which they participate) or pay to any Employee who is not
provided with Comparable Employment (or who is made Redundant
(as defined in clause 2.8 of the Policies)) their full
entitlements under the Plan and/or Policy in which the Employee
is a participant.
(g) (INDEMNITY FROM THE PURCHASER) The Purchaser shall indemnify the
Vendors' Group against any Claim arising from the Purchaser's failure
to fulfil its obligations under paragraph (f). Any of the Vendors may
enforce this indemnity in its own name and/or on behalf of any other
member of the Vendors' Group.
(h) (NO POACHING) For a period of 12 months from the date of execution
of this Deed:
(i) the Warrantor will ensure that none of the Deutsche Group shall
solicit or endeavour to entice away, employ or offer to employ
any Employee; and
(ii) the Purchaser shall not, and shall ensure that its Related
Bodies Corporate do not, entice away, employ or offer to employ
any person who, as at the Completion Date, is an
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employee of BTC and its Closely-held Subsidiaries in the United
States of America or Japan who conduct funds management
activities.
(i) (NO POACHING CARVE-OUT) Paragraph (h) does not prohibit any members of
Deutsche Group or the Purchaser and its Related Bodies Corporate (as
applicable) from employing or seeking to employ any such employee:
(i) who seeks employment with one of those entities on his or her
own initiative; or
(ii) who responds to a bona fide public advertisement for a vacant
position with one of those entities provided that the
advertisement is not targeted specifically at the employee
concerned,
in each case without any direct or indirect solicitation by or on
behalf of any member of the Deutsche Group or the Purchaser and its
Related Bodies Corporate, as the case may be. If paragraph (i) or (ii)
apply, the new employer must provide the other parties with
information to establish the application of paragraph (i) or (ii) on
request.
(j) (NO POACHING CARVE-OUT FOR BTIB EMPLOYEES) Paragraph (h) does not
prohibit any members of the Deutsche Group from employing or seeking
to employ any BTIB Employee (as defined in the IB Deed).
5. SALE AND PURCHASE
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On Completion:
(a) each Vendor will sell those of the Sale Shares of which it is holder
(as specified against that Vendor's name in Schedule 1) for the
Purchase Price of those shares; and
(b) the Purchaser will purchase those Sale Shares for that Purchase Price
free and clear of all Encumbrances.
6. COMPLETION
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6.1 PLACE FOR COMPLETION
Subject to Clause 6.7, Completion will take place at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in New York, New York before 3 pm on the Completion
Date.
6.2 DELIVERY OF TITLE DOCUMENTS
Subject to Clause 6.7, the Vendors shall ensure that the following
documents are delivered to the Purchaser on or before the Completion Date:
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(a) (SHARE CERTIFICATES) The share certificates (if any) in respect of the
Sale Shares.
(b) (TRANSFERS) Transfers in registrable form (subject only to payment of
stamp duty, if applicable) in favour of the Purchaser or the
Purchaser's nominee (being a nominee that is a Closely-held Subsidiary
of the Purchaser's Guarantor), duly executed by each registered holder
as transferor of the Sale Shares and, in the case of BTFMS, together
with such other documents as may be required for submission to the
Commissioner of Stamp Duties for the purpose of stamping the transfers
of the Sale Shares. The Purchaser's Guarantor enters into this Deed in
its own right and as trustee for any nominee pursuant to this Clause
to the intent that any such nominee may enforce this Deed to the same
extent as if it had executed this Deed as the Purchaser.
(c) (POWERS OF ATTORNEY) A power of attorney in the form set out in
Schedule 5 granted by each registered holder of the Sale Shares.
(d) (SOLD NOTES FOR BTFMA) One sold note executed by BTID in respect of
349,999 common shares in BTFMA and one sold note executed by BTNHK in
respect of 1 common share in BTFMA.
6.3 DELIVERY OF GENERAL DOCUMENTS
Subject to Clause 6.7, on the Completion Date, the Vendors shall deliver
the following documents to the Purchaser:
(a) (RECORDS) For each Group Member, the register of members, register of
charges, minute books, ledgers, journals and books of account, the
certificate of registration (or equivalent document), the common seal
(if any), share certificate books, and all records and documents
relating to the business and property of the Group Member.
(b) (DISCLOSURE MATERIAL) The Disclosure Material.
(c) (RESIGNATIONS) The written resignation of each director and any
secretary (if any) of each Group Member who is so nominated by the
Purchaser or the Vendors at least 5 days prior to the Completion Date
with effect from Completion, subject to the requirement in respect of
BTFMA to maintain at all times one dealing director as approved by the
SFC, in respect of BTFMS to maintain a director who is resident in
Singapore and a managing director approved by the MAS and, in respect
of any other Group Member, any other legal or regulatory requirements
concerning the composition of the relevant board of directors.
(d) (TRANSACTION DOCUMENTS) The Transaction Documents (other than the IB
Deed) as executed by the relevant member of the Vendors' Group.
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(e) (INTRAGROUP AGREEMENTS) Documents (signed by each of the parties to
the agreements respectively listed in Schedule 8) cancelling such of
those agreements as nominated by the Warrantor. The Purchaser
acknowledges that some or all of these agreements may be cancelled
before such time if so determined by the Warrantor,
(f) (INTER-COMPANY AGREEMENTS) Written evidence to the reasonable
satisfaction of the Purchaser that, other than in respect of such
arrangements as are notified in writing by the Purchaser to the
Vendors within 5 business days before the Completion Date:
(i) all inter-company accounts (other than as contemplated in Clause
6.3(h)) between any member of the Deutsche Group (other than
Group Members), on the one hand, and any Group Member on the
other hand; and
(ii) all intercompany agreements (other than Parent Support
Obligations, the Transaction Documents, the agreement
contemplated by Clause 6.11, any agreements entered into in
accordance with Clause 6.8 and the agreement referred to in
Clause 6.12, and subject to Clause 6.3(e)) between any member of
the Deutsche Group (other than Group Members), on the one hand,
and any Group Member, on the other hand,
shall have been terminated in writing.
(g) (REPAYMENT OF FACILITY) Written acknowledgement that the debt
described in Schedule 9 has been fully and finally repaid in
accordance with that Schedule.
(h) (FM BUSINESSES FACILITY) Documentation in a form reasonably
satisfactory to the Purchaser under which the Warrantor agrees to
provide a facility for a period of 3 months from the Completion Date
for the benefit of BTAL for up to an amount of $1,250,000,000 which is
available throughout that period to be used by BTAL for the FM
Businesses (including in the margin lending business) carried on and
conducted in Australia or New Zealand by the Group on terms no less
favourable to BTAL than the facility in place as at the date of this
Deed.
The Vendors may effect delivery of the documents described in paragraphs
(a) and (b) above by making them available at the offices of any of the
Companies.
6.3A LEGAL OPINION
On or before the Completion Date, the Warrantor shall provide to the
Purchaser's Guarantor and the Purchaser's Guarantor shall provide to the
Warrantor customary legal opinions in relation to their due execution of
the Transaction Documents and the due execution of the Transaction
Documents by their respective Related Bodies Corporate.
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6.4 APPROVAL OF TRANSFERS
Subject to Clause 6.7, the Vendors shall ensure that a meeting of the
directors of each Company is held, or resolutions are otherwise duly
passed, on or before the Completion Date at which the directors resolve:
(a) to approve the registration of the transfers of the relevant Sale
Shares (subject only to payment of stamp duty, if applicable); and
(b) to issue new share certificates (if required) for the relevant Sale
Shares in the names of the transferees (subject only to payment of
stamp duty, if applicable).
6.5 COMPLETION DATE BOARD MEETINGS
Subject to Clause 6.7, the Vendors shall ensure that a meeting of the
directors of each Group Member is held on or before the Completion Date at
which the nominees of the Purchaser, subject to the approval, if required,
of the MAS in respect of BTFMS and of the SFC in respect of BTFMA, are
appointed as directors and secretaries and the resignation of each
resigning director and secretary is accepted.
6.6 PAYMENT OF PURCHASE PRICE, RE-FINANCING AND TRANSACTION DOCUMENTS
On the Completion Date and subject to compliance with Clauses 6.2 to 6.5 by
the Vendors, the Purchaser shall:
(a) pay an amount equal to the Total Purchase Price by telegraphic
transfer in immediately available funds to an account or accounts as
nominated by the Vendors;
(b) subject to Clause 6.7, deliver to the Vendors one bought note executed
by the Purchaser in respect of 349,999 common shares in BTFMA and one
bought note executed by the Purchaser in respect of 1 common share in
BTFMA;
(c) subject to Clause 6.7, provide to the Vendors a cheque made payable to
the Government of the Hong Kong Special Administration Region for an
amount in Hong Kong dollars calculated by the Vendors to be the Hong
Kong dollar equivalent to 0.25% of the higher of the Purchase Price
payable for Sale Shares in BTFMA as set out in Column 4 of Schedule 1
and the value of those Sale Shares as determined from BTFMA's latest
audited accounts;
(d) subject to Clause 6.7, provide to the Vendors a written undertaking in
favour of the Inland Revenue Department of the Hong Kong Special
Administrative Region to pay all stamp duty properly assessed under
the Stamp Duty Ordinance on the transfer of the Sale Shares in BTFMA;
and
(e) deliver counterparts of the Transaction Documents delivered by the
Vendors in accordance with Clause 6.3(d) executed by it or a Purchaser
Entity (as the case may be) to which it is a party.
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6.7 DELAY IN SATISFYING CONDITIONS IN CLAUSE 2.3
(a) If any of the conditions for Completion of the sale and purchase of
the Sale Shares (the RELEVANT SHARES) in a particular Company (the
RELEVANT COMPANY) specified in Clause 2.3 have not been satisfied or
waived by the Vendors and the Purchaser on or before the Completion
Date, the obligations of the parties in respect of the Relevant Shares
and the Relevant Company under Clauses 6.1,6.2, 6.3(a) and (c), 6.4,
6.5 and (if the Relevant Company is BTFMA) 6.6(b), (c) and (d) shall
be deferred until the business day (the RELEVANT DATE) which is 2
business days after those conditions are duly satisfied or waived.
(b) The Purchaser shall be responsible for the day to day management of
the Companies on and from Completion of the sale and purchase of the
BTIA Shares and, if Clause 6.7(a) applies, shall ensure that the
Business of the Relevant Company is carried on in the ordinary and
usual course until the earlier of the Relevant Date and the Drop Dead
Date, provided that the Purchaser shall ensure that the Relevant
Company does not do or agree to do, any of the things specified in
Clause 3.1(b), subject to Clause 3.2, during that period without the
prior written consent of the Warrantor.
(c) If the Relevant Date occurs on or before the Drop Dead Date, the
Warranties given in respect of the Relevant Shares and Relevant
Company shall be taken to have been given on, and with effect as at,
the Relevant Date.
(d) If the Relevant Date does not occur on or before the Drop Dead Date,
then the sale and purchase of the Relevant Shares shall not proceed
and:
(i) the Purchase Price or Adjusted Purchase Price (as the case may
be) of Relevant Shares shall be refunded to the Purchaser as
provided for in Clause 12.1(b);
(ii) the Purchaser shall indemnify the Vendors of the Relevant
Company against any loss suffered by the Relevant Company or the
Vendors as set out in paragraph (e) only to the extent to which
the loss arises as a result of the negligence or wilful
misconduct of an Officer of the Relevant Company; and
(iii) the provisions of Clause 3.4 shall cease to apply in respect of
the Relevant Company.
(e) For the purposes of paragraph (d)(ii), LOSS shall include:
(i) any decrease in the value of the net assets of the Relevant
Company from the Completion Date to the Drop Dead Date (which
decrease shall be determined by similar procedures and upon the
same basis as applicable to the preparation of the Completion
Statement under Clause 10); and
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(ii) any Claims (whenever made) against the Relevant Company or any
member of the Vendors' Group in respect of any acts or omissions
or any breach of contract, fiduciary duty, law or the terms of
any Authorisation by the Relevant Company or any of its Officers
or otherwise arising from the conduct of the Business or affairs
of the Relevant Company between the Completion Date and the Drop
Dead Date.
6.8 OFFSHORE FM BUSINESSES
(a) (IRELAND) On and from the date of this Deed, the Purchaser shall use
reasonable endeavours to obtain all necessary regulatory approvals,
including from the Central Bank of Ireland and the SFC, to effect a
change in the manager of the BT International Investment Series of
funds, as performed in Ireland, from BT Fund Managers (Ireland)
Limited to the Purchaser or a Related Body Corporate of the Purchaser
to have effect not before the Completion Date and no later than the
Drop Dead Date.
If so requested by the Purchaser, the Warrantor agrees (at the cost of
the Purchaser) to procure the resignation of BT Trustee Company
(Ireland) Limited as trustee of the BT International Investment Series
or, if so requested by the Warrantor, the Purchaser agrees (at the
cost of the Warrantor) to permit the resignation of BT Trustee Company
(Ireland) Limited and, in either case, the Purchaser shall procure the
appointment of a successor trustee, subject to receipt of any
necessary regulatory and unitholder approvals.
Pending such transfer of this Offshore FM Business, the Vendors and
the Purchaser shall take all reasonable steps to ensure that this
Offshore FM Businesses is carried on in the ordinary and usual course.
(b) (UK) On and from the date of this Deed, the Purchaser shall use
reasonable endeavours to obtain all necessary regulatory approvals,
including from the Securities and Futures Authority, to permit a
Purchaser Entity to operate the FM Businesses of the Group conducted
in the United Kingdom by BTI, such approvals to have effect not before
the Completion Date and no later than the Drop Dead Date.
With effect on and from the receipt of all necessary approvals
contemplated in this paragraph (b) (CHANGEOVER DATE), the Purchaser or
its Related Body Corporate shall make an offer of employment, in a
form satisfactory to the Vendors, to all the then current Employees
employed by BTI in London in carrying out the activities of this
Offshore FM Business (RELEVANT EMPLOYEES) on terms no less favourable
than they enjoy at such time. The Warrantor shall, at least 15
business days before the Changeover Date, provide to the Purchaser
sufficient details of the Relevant Employees and
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their terms of employment to allow the Purchaser or its Related Body
Corporate to make such offers of employment.
Pending such transfer of this Offshore FM Business, the Vendors and
the Purchaser shall take all reasonable steps to ensure that this
Offshore FM Business is carried on in the ordinary and usual course.
(c) (ALBERTA TREASURY IMC) On and from the Completion Date, the Warrantor
and the Purchaser shall use all reasonable endeavours to procure the
novation of the rights and obligations of BTC under the Individually
Managed Client Agreement dated 8 November 1991 made between Her
Majesty the Queen in the Right of the Province of Alberta as
represented by the Provincial Treasurer and BTC (the ALBERTA CONTRACT)
in favour of BTFMIL to have effect not before the Completion Date and
no later than the Drop Dead Date. Pending the novation of the Alberta
Contract, the Warrantor shall ensure that BTC complies with all of its
obligations under the Alberta Contract and the Purchaser shall ensure
that the Group Members continue to carry on the activities related to
the Alberta Contract in the ordinary and usual course.
(d) (COMMON FUND IMC) Up to the Completion Date, the Warrantor shall
ensure that BTC does not dismiss ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as an employee (other
than for cause) and permits him to manage US securities for the Common
Fund Bond Portfolio under the Individually Managed Client Agreement
dated 1 June 1995 made between the Common Fund and BTFMIL. After the
Completion Date, the Purchaser shall make whatever arrangements are
necessary to enable BTFMIL to continue managing that portfolio and the
Warrantor shall have no continuing obligations under this paragraph.
6.9 POST COMPLETION LOAN BALANCES
(a) Except as required by the IB Deed and subject to Clauses 6.3(f) and
(h), all outstanding amounts made available by the Deutsche Group
(other than Group Members) to Group Members before the Completion Date
shall be repaid in full on or before the Completion Date.
(b) No later than 3 months after the Completion Date, the Purchaser shall
ensure that all monies drawn down under the facility referred to in
Clause 6.3(h) are fully repaid.
6.10 PARENT SUPPORT OBLIGATIONS
The Purchaser:
(a) will use reasonable endeavours to ensure that all Parent Support
Obligations listed in Schedule 14 are fully released as soon as
practicable after the Completion Date and that all other Parent
Support Obligations are fully released as soon as practicable after
they are identified; and
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(b) indemnifies the Vendors, the Warrantor and the Vendors' Guarantor
against any Claim arising as a result of the continued existence or
enforcement of any Parent Support Obligation following the Completion
Date, except, in each case, to the extent that any Parent Support
Obligation or Claim relates to any Group Member or Offshore FM
Business which is not ultimately sold to the Purchaser under this
Deed.
6.11 CUSTODY ARRANGEMENTS
The Purchaser acknowledges and agrees (despite Clause 3.1) that BTC
proposes to formalise with Group Members on arms length terms the custody
and sub-custody services (and services incidental to them) provided by BTC
and BTCO to Group Members and by Group Members to BTC and BTCO as at the
date of the Deed. The Vendors shall use reasonable endeavours to do this
before Completion but if they are unable to do so, the Purchaser will use
reasonable endeavours to procure that the relevant Group Members enter into
appropriate contracts with BTC as soon as practicable after the Completion
Date. Within a reasonable time of the Completion Date, the Purchaser and
the relevant Group Members shall negotiate in good faith with BTCO to
determine the basis, if any, on which the relevant members of the Group and
BTCO may continue to provide custody and sub- custody services (and
services incidental to them) to their respective clients,
6.12 DEUTSCHE FUNDS MANAGEMENT
The Warrantor covenants to ensure that the agreement between Deutsche Funds
Management and BT Portfolio Services Limited dated 8 December 1998 will not
be terminated in consequence of the entry into or performance of this Deed.
7. NOTICE TO COMPLETE
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7.1 NOTICE BY THE PURCHASER
If any Vendor fails to satisfy its obligations under Clauses 6.1 to 6.6 in
respect of the BTIA Shares on the due date (the DEFAULTING VENDOR), the
Purchaser may give the Vendors a notice requiring the Defaulting Vendor to
satisfy those obligations within a period of 10 business days from the date
of receipt of the notice and declaring time to be of the essence in all
respects. If the Defaulting Vendor fails to satisfy those obligations on
the date specified in the Purchaser's notice, the Purchaser may, without
affecting or limiting any other rights it might have, terminate this Deed.
7.2 NOTICE BY THE VENDORS
If the Purchaser fails to satisfy its obligations under Clauses 6.1 to 6.6
in respect of the BTIA Shares on the due date, the Vendors may give the
Purchaser a notice requiring it to satisfy those obligations within a
period of
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10 business days from the date of receipt of the notice, and declaring time
to be of the essence in all respects. If the Purchaser fails to satisfy
those obligations on the date specified in the Vendors' notice, the Vendors
may, without affecting or limiting any other rights it might have,
terminate this Deed.
8. WARRANTIES, CLAIMS AND DISPUTES
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8.1 WARRANTIES AND INDEMNITY BY THE WARRANTOR
(a) The Warrantor represents and warrants to the Purchaser, the
Purchaser's Guarantor and the Purchaser Entities in the terms set out
in Parts I and II of Schedule 4 and makes no other warranties.
(b) Subject to the other provisions of this Clause 8, the Warrantor
indemnifies the Purchaser against any Claim which is incurred or
suffered by or brought or made or recovered against any Group Member
Or in respect of any Offshore FM Business and which constitutes a
breach of the Warranties.
8.2 WARRANTIES BY THE PURCHASER AND PURCHASER'S GUARANTOR
The Purchaser and the Purchaser's Guarantor represent and warrant to the
Vendors and the Warrantor in the terms set out in Part III, and undertake
to comply with the terms set out in Part IV, of Schedule 4.
8.3 EFFECTIVE DATES
Subject to Clause 6.7(c), the Warranties are given as at the date of this
Deed and as at the Completion Date, except where a Warranty is expressed to
be made as at or in respect of a particular date.
8.4 DISCLOSURES
(a) The Purchaser and the Purchaser's Guarantor acknowledge that the
Vendors and the Warrantor have disclosed, or are taken to have
disclosed, to them any matter:
(i) provided for or described in this Deed or any other Transaction
Document;
(ii) fairly disclosed in the Disclosure Material;
(iii) disclosed in writing to the Purchaser or the Purchaser's
Guarantor or any of their respective directors, employees,
Advisers or agents who have participated in the investigation
any of them undertakes of the affairs of the Group; or
(iv) that would have been disclosed had searches been conducted prior
to the Completion Date of records open to public inspection
maintained by Australian Stock Exchange Limited, Sydney Futures
Exchange Limited, the Australian Securities
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and Investments Commission, the Trade Marks Office, the, High
Court, the Federal Court and the Supreme Courts and Land Titles
Offices in any State or Territory in Australia and each
equivalent Public Authority in the United States of America,
Hong Kong, Singapore, Malaysia and New Zealand against a Vendor
or any Group Member.
For the purposes of this Clause, a matter is FAIRLY DISCLOSED if
sufficient information has been disclosed that, if disclosed to a
reasonable person (in the position of and with the Advisers used by
the Purchaser and the Purchaser's Guarantor), that person would be
aware of the substance and significance of the information.
(b) The Purchaser and the Purchaser's Guarantor acknowledge that where a
matter has been disclosed or taken to have been disclosed to the
Purchaser and the Purchaser's Guarantor under paragraph (a) and that
disclosure would have prompted a reasonable person to make further
enquiries, any matter which would have been disclosed had the
Purchaser or the Purchaser's Guarantor made those enquiries will be
taken to have been disclosed to the Purchaser and the Purchaser's
Guarantor.
8.5 CONSTRUCTION
Each Warranty is to be construed independently of the others and is not
limited by reference to any other Warranty.
8.6 LIMITATION ON WARRANTOR'S AND VENDORS' LIABILITY
Notwithstanding any other provision of this Deed each of the following
applies.
(a) (MAXIMUM LIABILITY) Except for Warranty 3.1 in Part 1 of Schedule 4
(the TITLE WARRANTY), the Tax Warranties, or in the case of fraudulent
misstatement, the maximum aggregate liability of the Warrantor and the
Vendors for breach of the Warranties (including pursuant to Clause 8.1
(b)) will be limited to the amount of $500,000,000. In the case of a
breach of the Title Warranty in respect of any Sale Shares, the
maximum liability of the Warrantor and the Vendors will be the
Purchase Price or the Adjusted Purchase Price (as the case may be) of
those Sale Shares. In the case of a breach of the Tax Warranties, the
maximum liability of the Warrantor and the Vendors will be the Total
Purchase Price or the Total Adjusted Purchase Price (as the case may
be). The particular limits set out above are subject to the overriding
limit that the maximum aggregate liability of the Warrantor and the
Vendors for breach of the Warranties will be limited to the Total
Purchase Price or the Total Adjusted Purchase Price (as the case may
be).
(b) (TIME LIMIT) The Warrantor and the Vendors will not have any liability
in respect of any Claim:
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(i) under the Warranties (other than Tax Warranties), unless
reasonable particulars of the Claim are given to the Warrantor
or the Vendor (as applicable) before 31 March 2003; or
(ii) under the Tax Warranties, unless reasonable particulars of the
Claim are given to the Warrantor or the Vendor (as applicable)
within the period described in a law relating to Tax allowing
the increase by a Tax Authority of a particular Tax liability,
but in any event, before 30 June 2006. No time limit shall apply
to any Claim under the Tax Warranties which relates to an
obligation to pay, collect or remit withholding tax or involves
an avoidance of Tax due to fraud or evasion by a Group Member.
(c) (NOTICE BEFORE COMPLETION) If the Purchaser does not comply with
Clause 815(a), the Warrantor and the Vendors shall not be liable for
breach of Warranty in respect of the relevant Claim whenever arising
to the extent to which the Purchaser's failure to comply has had a
material prejudicial effect on the Warrantors or the Vendors.
(d) (POST COMPLETION ACTIONS OR OMISSIONS) The liability of the Warrantor
or the Vendors in respect of any Claim under the Warranties will be
reduced or extinguished (as the case may be) to the extent that any
act or omission after Completion by the Purchaser, any Related Body
Corporate of the Purchaser or any of their Officers or any person
acting or purporting to act on their behalf or deriving title from
them has resulted in, or contributed to the amount of, the Claim. An
act or omission of the Purchaser shall include any of:
(i) a claim, election, surrender or disclaimer made or notice or
consent given by the Purchaser or the Group Member after
Completion, otherwise than at the request of the Vendor under
the provisions of this Deed;
(ii) a failure or omission by the Group Member to make any claim,
election, surrender or disclaimer or give any notice or consent
or do any other thing after Completion, the making, giving or
doing of which was taken into account in computing a Tax
Provision;
(ill) a failure by the Purchaser to comply with any of its obligations
under Clauses 8.10, 8.11 or 8.12; and
(iv) a failure by the Purchaser to comply with any of its obligations
under Part IV of Schedule 4.
(e) (CREDIT) If after the Warrantor or the Vendor has made a payment to
the Purchaser under a Claim made under the Warranties, the Purchaser
receives any benefit or credit (including any Tax benefit) in respect
of the matters to which the Claim relates, then the Purchaser shall
immediately repay to the Warrantor a sum corresponding to the amount
of the payment or (if less) the amount of the benefit or credit.
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(f) (DISCLOSURES) It is not a breach of Warranty if the matter which is
the subject of the Warranty or the Claim for breach of Warranty has
been disclosed (or taken to be disclosed) by virtue of Clause 8.4.
This provision does not apply in respect of a Tax Warranty.
(g) (THRESHOLDS) The Warrantor and the Vendors will not be liable to the
Purchaser for any Claim under the Warranties unless the amount of the
Claim suffered or incurred by the Purchaser or the Group Members:
(i) is for an amount in excess of $1,000,000; and
(ii) either alone or when aggregated with the amount of any other
claims under the Warranties properly made against the Warrantor
and the Vendors under this Deed exceeds, in respect of a Tax
Warranty, $50,000,000 and, in respect of any other Warranty,
$25,000,000 and, in both cases, only to the extent of such
excess.
(h) (CHANGE OF LAW OR INTERPRETATION) It is not a breach of Warranty:
(i) where the Claim arises as a result of any legislation not in
force at the date of this Deed (other than Bills introduced into
the Australian parliament in their tabled form as at 11 June
1999), including legislation which takes effect retrospectively
and any change in rates of Tax announced after the date of this
Deed; or
(ii) where the Claim arises as a result of or in respect of a change
in the judicial or administrative interpretation of the law or
any change in practice or policy of any Public Authority in any
jurisdiction after the date of this Deed, including the change or
withdrawal after the date of this Deed of any ruling,
determination, policy or practice previously published or
followed by any Taxation Authority.
(i) (RECOVERY UNDER ANY OTHER RIGHT) The Warrantor and the Vendors will
not be liable to the Purchaser for any Claim under any Warranty to the
extent that the Purchaser or any Group Member is or would be, but for
this paragraph (i), entitled to claim an indemnity against, or to
otherwise recover from a person other than the Warrantor or the
Vendors in respect of, any loss or damage suffered by the Purchaser or
that Group Member arising out of the Claim, whether by way of
contract, indemnity or otherwise.
(j) (PROVISION) Any amount which has been included as a provision or
allowance in the Completion Statement is not an amount which may be
included in a Claim for breach of Warranty.
(k) (DOING PROHIBITED ACTS) The Warrantor and the Vendors will not be
liable in respect of a Claim made under or in respect of this Deed
where the liability would not have arisen but for the doing of an act,
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or the failure to act, by the Purchaser or the Purchaser's Guarantor
in breach of any provision of this Deed.
(l) (COMPENSATING BENEFITS) If the Warrantor can demonstrate to the
reasonable satisfaction of the Purchaser that either:
(i) an accrual, allowance, provision or reserve in respect of any Tax
in respect of a Group Member in the Completion Statement or, if
not in the Completion Statement, in the Tax Provision exceeds the
actual liability in respect of that Tax; or
(ii) an entitlement to any Relief which is shown as an asset in
respect of a Group Member in the Accounts (and in this respect no
such asset means a value of nil) is understated and the amount of
the understatement is able to be actually availed of by the Group
Member,
then its liability to the Purchaser for a Claim for breach of any
Warranty shall be reduced by the amount of the excess or the
understatement, respectively.
(m) (TIMING DIFFERENCES) To the extent that a Tax Claim only involves a
timing difference (which through the effluxion of time and the
operation of a Tax law does not give rise to a permanent difference)
(for example, an amount being assessable in the year ending 31
December 1998, rather than in the succeeding year, or an amount being
deductible in the year ending 31 December 1999 (or over that year and
later years), rather than in the preceding year (or the 31 December
1998 year)), then the Claim shall be limited to any interest, penalty
or other charge levied as a result of the late payment of Tax.
8.7 NO RELIANCE
(a) The Purchaser and the Purchaser's Guarantor represent and warrant to
the Vendors' Group, the Warrantor and the Deutsche Group that:
(i) at no time has the Warrantor or any other member of the (Vendors'
Group or the Deutsche Group, made or given any representation,
warranty, promise or forecast upon which the Purchaser or the
Purchaser's Guarantor has relied except those referred to in
Clause 8.1 (a);
(ii) no other statements or representations:
(A) have induced or influenced the Purchaser or the Purchaser's
Guarantor to enter into this Deed or agree to any or all of
its terms;
(B) have been relied on in any way as being accurate by the
Purchaser or the Purchaser's Guarantor;
(C) have been warranted to the Purchaser or the Purchaser's
Guarantor as being true; or
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(D) have been taken into account by the Purchaser or the
Purchaser's Guarantor as being important to its decision to
enter into this Deed or agree to any or all of its terms;
and
(iii) each has had the opportunity to make and has made reasonable
enquiries in relation to all matters material to it which relate
to the Group and which are not covered by the Warranties and
satisfied itself in relation to the matters arising from those
investigations.
(b) The Purchaser and the Purchaser's Guarantor acknowledge that the
Vendors, the Warrantor and the Deutsche Group have relied on the
agreement by the Purchaser and the Purchaser's Guarantor to make the
representations and warranties referred to in paragraph (a) in
selecting the Purchaser as the purchaser of the Sale Shares and
Offshore FM Businesses, that such representations and warranties are a
fundamental term of this Deed and that the Vendors, the Warrantor and
the Deutsche Group would not have selected the Purchaser as the
purchaser of the Sale Shares and Offshore FM Businesses or entered
into this Deed or any Transaction Document with the Purchaser and the
Purchaser's Guarantor if the Purchaser and the Purchaser's Guarantor
were not prepared to make those representations and warranties.
(c) The Vendors receive the benefit of this Clause 8.7 and Clauses 8.8 and
8.9 in their own right and as agent for each member of the Vendors'
Group and the Deutsche Group.
8.8 STATUTORY ACTIONS
In recognition of the representations and warranties given by the Purchaser
and the Purchaser's Guarantor under Clause 8.7 and by the Warrantor under
Clause 9 of Part 1 of Schedule 4 and to the extent permitted by law, each
of the Purchaser and the Purchaser's Guarantor agree not to make and waive
any right it may have to make any Claim against any Vendor, the Warrantor
or any member of the Deutsche Group or any of their respective Officers,
employees, agents or Advisers, whether in respect of the Warranties or
otherwise, under:
(a) (AUSTRALIA) section 52 of the Trade Practices Act 1974, section 12DA
of the Australian Securities and Investments Commission Act or any
provision of Part 7.11 of the Corporations Law, or any corresponding
or similar provision of any Australian state or territory legislation;
(b) (NEW ZEALAND) the New Zealand Fair Trading Act 1986, or any
corresponding or similar provision of any other legislation in New
Zealand; and
(c) (OTHER JURISDICTIONS) any similar provision of any legislation in any
other relevant jurisdiction.
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8.9 INDEMNITY
(a) If the Purchaser, the Purchaser's Guarantor, any other Purchaser
Entity, or any person acting through them, makes a Claim against any
member of the Vendors' Group, the Warrantor or the Deutsche Group (an
INDEMNIFIED PARTY) contrary to Clause 8.7 or 8.8, then the Purchaser
and the Purchaser's Guarantor will release, or will procure the
release by the Purchaser Entity or by the person, of the Indemnified
Party from, and will indemnify the Indemnified Party against, such a
Claim.
(b) Each of the Vendors and the Warrantor has sought the indemnity
received under paragraph (a) both on its own behalf and on behalf of
the other Indemnified Parties and any of the Vendors or the Warrantor
may enforce the indemnity given under paragraph (a) in its own name
and/or on behalf of any such Indemnified Party.
(c) Notwithstanding any other provision of this Deed, the Purchaser agrees
to indemnify the Vendors and the Warrantor against the amount of any
additional Tax or in respect of the loss of any Tax benefit or Relief
arising out of any breach of any provision in Part IV of Schedule 4.
8.10 DEALING WITH THIRD PARTY CLAIM OR TAX CLAIM AFTER COMPLETION DATE
(a) (THIRD PARTY CLAIM) If the Purchaser or the Purchaser's Guarantor
become aware after the Completion Date of any circumstances which
constitute or could (whether alone or with any other possible
circumstances) constitute a Claim (other than a Tax Claim) against the
Purchaser or any Group Member (other than a Claim to which Clause 8.9
applies) which if satisfied might reasonably result in a Claim (other
than a Tax Claim) against the Warrantor or the Vendors for breach of
any Warranty or pursuant to the IB Indemnity (a THIRD PARTY CLAIM),
the Purchaser must do each of the following:
(i) as soon as reasonably practicable give the Warrantor full
details of the circumstances and any further related
circumstances of which the Purchaser or the Purchaser's
Guarantor became aware;
(ii) until it notifies the Warrantor in accordance with paragraph
(i), take reasonable steps to mitigate any loss which may give
rise to such a Claim against the Warrantor or a Vendor;
(iii) not make any admission of liability, agreement or compromise
with any person in relation to the Third Party Claim without
first consulting with and obtaining the approval of the
Warrantor (which approval shall not be unreasonably withheld or
delayed);
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(iv) give the Warrantor and its Advisers access on such terms as would
satisfy section 263 of the Tax Act, but subject to any
confidentiality obligations which the Purchaser or a Group Member
may be subject to arising by operation of law, to:
(A) the personnel and premises of the Purchaser and any Group
Member; and
(B) relevant chattels, accounts, documents and records within
the power, possession or control of the Purchaser and any
Group Member,
to enable the Warrantor and its Advisers to examine the
circumstances, premises, chattels, accounts, documents and
records relating to the Third Party Claim and to obtain copies
(including certified copies) or photographs of them at their own
expense; and
(v) (A) at the Warrantor's expense, take all action in good faith and
with due diligence that the Warrantor reasonably directs to
avoid, remedy or mitigate the Third Party Claim, including
legal proceedings and disputing, defending, appealing or
compromising the Third Party Claim and any adjudication
of it; and
(B) with the consent of the Purchaser (such consent not to be
unreasonably withheld or delayed) conduct the action using
professional advisers nominated by the Warrantor and
approved by the Purchaser for this purpose and, if requested
by the Warrantor, grant carriage of the action to the
Warrantor. If the Purchaser so requests:
(1) the Purchaser shall be entitled to be kept informed of
all material matters pertaining to such action and
shall be entitled to see copies of all correspondence
and other documents pertaining to such action; and
(2) the Warrantor and Vendor shall make no settlement or
compromise of the Third Party Claim, nor agree any
matter in the conduct of the dispute, which is likely
to affect the future liability of any Group Member,
without the prior written approval of the Purchaser,
such approval not to be unreasonably withheld or
delayed.
(b) (TAX CLAIMS) If the Purchaser or the Purchaser's Guarantor become
aware after the Completion Date of any circumstances which constitute
or could (whether alone or with any other possible
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circumstances) constitute a Tax Claim (other than a Claim to which
Clause 8.9 applies), the Purchaser must do each of the following:
(i) as soon as reasonably practicable give the Warrantor full
details of the circumstances and any further related
circumstances of which the Purchaser or the Purchaser's
Guarantor become aware, including, the provision on a continuous
basis of any written notes of any material oral communications
the Purchaser, the Purchaser's Guarantor, a Group Member or any
person acting on their behalf has had with any representative of
a Taxation Authority concerning any material matter relating to
a Tax Claim or potential Tax Claim which relates to a period
prior to Completion;
(ii) forward, or cause to be forwarded, to the Warrantor within 10
business days of receipt by the addressee a copy of any Notice
of Assessment, Notice of Amended Assessment, any other demand
for payment, any notice, correspondence or other document
relating to a Tax Claim or potential Tax Claim received from a
Taxation Authority or any legal representative of a Taxation
Authority or any court or tribunal in connection with or related
to a Tax Claim;
(iii) consult with the Warrantor as to the appropriate response to any
notice, correspondence, demand or other document referred to in
(ii) above, which may include without limitation, the
preparation and lodgment of a Notice of Objection, a reference
to the relevant Tribunal or an action in or appeal to a Court;
(iv) ensure, subject to subparagraph (vii) below, that a relevant
Group Member takes all reasonable action (including the making
of objections and appeals) that the Warrantor requests to avoid,
resist, compromise or defend a demand or notice issued by a
Taxation Authority which gives rise to the Tax Claim, provided
that the Warrantor indemnifies the Purchaser and any Group
Member against any costs which may be suffered or reasonably be
incurred as a result of compliance with their request;
(v) ensure the Warrantor has control over the form and substance of
the action to be taken and any appeals or further actions in
respect of such action, notwithstanding that any Group Member is
a party to such action;
(vi) ensure that neither it nor any Group Member will compromise or
discontinue any proceedings taken under this Clause without the
prior written consent of the Warrantor;
(vii) ensure that both it and each relevant Group Member does, at the
Warrantor's cost and expense, all that the Warrantor reasonably
requests it to do to pursue any and all of the steps
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contemplated by this paragraph 8.10(b) unless in the case of an
appeal or other relevant litigation, it reasonably considers that
such an appeal or other relevant litigation would be injurious to
the name or reputation of the Purchaser or a Group Member and in
any such case, an independent tax adviser (appointed by agreement
between the Purchaser and the Warrantor or, failing such
agreement, selected by the President for the time being of the
Taxation Institute of Australia) advises in writing that in his
or her opinion the basis for any objection, application, appeal
or other relevant litigation requested by the Warrantor would not
be arguable on reasonable grounds and would be an abuse of
process; and
(viii) give the Warrantor and its Advisers access on such terms as
would satisfy section 263 of the Tax Act, but subject to any
confidentiality obligations which the Purchaser or a Group Member
may be subject to arising by operation of law, to:
(A) the personnel and premises of the Purchaser and any Group
Member; and
(B) relevant chattels, accounts, documents and records within
the power, possession or control of the Purchaser and any
Group Member,
to enable the Warrantor and its Advisers to examine the
circumstances, premises, chattels, accounts, documents and
records relating to the Tax Claim and to obtain copies (including
certified copies) or photographs of them at their own expense.
(c) (FAILURE TO COMPLY) Any failure by the Purchaser to comply with this
Clause 8.10 does not prevent the Purchaser or any Group Member either
from recovering any loss incurred in connection with the Third Party
Claim or the Tax Claim against it or any Group Member except to the
extent such failure materially prejudices the ability of the Warrantor
or the Vendor to defend the Third Party Claim or the Tax Claim or
otherwise materially increases the liability of the Warrantor or the
Vendors.
(d) (WARRANTOR'S CAPACITY) For the purposes of Clause 8.10, the Warrantor
shall act on its own behalf and on behalf of the Vendors (if
applicable).
8.11 TAX ASSESSMENT
If a Tax Claim against a Group Member gives rise to a Claim against the
Warrantor under this Deed, the Purchaser shall cause the Group Member,
upon written request by the Warrantor, to co-operate in seeking an
extension of time to pay all or part of the Tax assessed pending objection
and/or appeal and to refrain from paying the Tax during the period of any
extension of time.
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8.12 PROCEDURE FOR MAKING CLAIM
(a) The Purchaser shall not make a Claim against a Vendor or the Warrantor
under or in respect of this Deed (other than under Clause 10) unless:
(i) the Purchaser acts bona fide as to the existence, nature and
amount of such Claim;
(ii) such Claim is made under this Clause 8.12 (not by any other
means) and subject to and in accordance with the provisions of
this Deed and any other Transaction Document applicable to such
Claim; and
(iii) the Purchaser gives prompt notice to the Vendor or the Warrantor
(as the case may be) specifying details of the Claim and/or the
amount (including any interest payable under this Deed) claimed
(a CLAIM NOTICE).
(b) If the Vendor or Warrantor (as the case may be) disputes the
Purchaser's Claim under a Claim Notice, then it must serve a notice on
the Purchaser within 20 business days after receipt of the Purchaser's
notice (a DISPUTE NOTICE).
(c) If the Vendor or Warrantor (as the case may be) do not serve a Dispute
Notice, the Purchaser is entitled, in relation to the Claim, to the
amount claimed by the Purchaser in the Claim Notice above (subject to
the application of Clauses 8.6(a) and 8.6(g) or any other amount
agreed between the Vendor or Warrantor (as the case may be) and the
Purchaser.
(d) If the Vendor or Warrantor (as the case may be) serves a Dispute
Notice:
(i) the Purchaser and the Vendor or Warrantor (as the case may be)
must, for a period of 10 business days after receipt by the
Purchaser of the Dispute Notice, negotiate in good faith to agree
the amount (if any) to which the Purchaser is entitled in
relation to the Claim or, failing agreement, refer the matter in
writing for determination by an Expert appointed and acting in
accordance with Clause 8.13; and
(ii) if the Claim is (during that period or subsequently) agreed,
compromised, determined or settled in favour of the Purchaser
then the Purchaser is entitled, in relation to the Claim, to the
amount payable to the Purchaser under that agreement, compromise
or settlement.
(e) Any allegation of fraud shall not be referred to the Expert under
paragraph (d), and the Purchaser shall be entitled to pursue such
legal remedy as it thinks fit.
(f) Each party must bear its own costs and expenses, (including legal,
accounting and actuarial fees) arising from observing this Clause
8.12.
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8.13 EXPERT
For the purposes of Clause 8.12:
(a) the Expert shall be instructed to make its determination within 20
business days;
(b) each party:
(i) must provide the Expert full access to its books and records and
any information required by the Expert to complete its
determination; and
(ii) is entitled to make written submissions to the Expert in respect
of the matter for determination within 10 business days of the
date of the referral to the Expert;
(c) the Expert, when appointed, shall act as an expert and not as an
arbitrator;
(d) the determination of the Expert shall be final and binding on the
parties and shall be notified to the Purchaser and the Vendor or
Warrantor (as the case may be); and
(e) the Expert's costs shall be borne by the Vendor or the Warrantor in
the proportions determined by the Expert (the parties acknowledging
that such power of determination will not deny the operation of
paragraph (c)).
8.14 ALTERATIONS TO PURCHASE PRICE OR ADJUSTED PURCHASE PRICE
(a) Any monetary compensation received by the Purchaser in satisfaction of
a Claim for any breach by the Warrantor or a Vendor of any Warranty or
under the IB Indemnity shall be taken to be in reduction and refund of
the Purchase Price or the Adjusted Purchase Price (as the case may
be).
(b) If, subsequent to the payment by the Warrantor of a Claim by way of
refund and reduction of the Purchase Price or the Adjusted Purchase
Price (as the case may be), the whole or part of the Claim is refunded
to a Group Member or otherwise applied for the benefit of a Group
Member pursuant to a relevant Tax law or otherwise, then the Purchaser
shall forthwith pay by way of additional Purchase Price or Adjusted
Purchase Price (as the case may be) the amount refunded or applied
pursuant to the relevant law or otherwise.
(c) If any interest is paid or credited to the Group Member in respect of
any amount payable to the Warrantor as provided in paragraph (b), the
Purchaser shall, in addition, pay by way of additional Purchase Price
or Adjusted Purchase Price (as applicable) a sum equal to the interest
net of any tax payable by the Purchaser in respect of that interest.
(d) Any adjustment to the Purchase Price or the Adjusted Purchase Price
shall relate to particular Sale Shares or particular Offshore FM
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Businesses, and the Purchase Price or Adjusted Purchase Price shall
be adjusted in relation to the particular Sale Shares or Offshore FM
Business to which the adjustment relates and, if there is no direct
relationship, then in accordance with the reasonable determination
of the Vendors or, failing such determination, in the proportions in
which they comprise the Total Purchase Price.
8.15 NOTIFICATION OF WARRANTY BREACH BEFORE COMPLETION
(a) If before Completion the Purchaser or Purchaser's Guarantor become
aware of a matter that constitutes a breach of any Warranty, or that
the Purchaser or Purchaser's Guarantor believes is likely to
constitute a breach of a Warranty (other than a Tax Warranty):
(i) the Purchaser must notify the Warrantor and Vendors of this; and
(ii) the Warrantor and Vendors shall have a reasonable opportunity to
remedy the breach or likely breach.
(b) If the Warrantor or Vendors are unable to remedy the breach or
potential breach of Warranty or if the Purchaser does not accept the
result as a remedy, the Purchaser must still complete the sale and
purchase of the Sale Shares in accordance with this Deed.
9. ACCESS TO AND RETENTION OF RECORDS
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9.1 ACCESS
(a) The Purchaser undertakes that it shall preserve all Records referable
to any time up to the end of the fiscal year in which Completion
occurs, for a period whichever is the greater of (i) 5 years from the
Completion Date, or (ii) the relevant length of time which is required
by statute.
(b) After Completion, to the extent that the Vendors require such access
to enable the Vendors' Group to prepare their Tax returns, accounts
and other financial statements, to discharge any statutory obligation,
or in connection with any Tax or Relief or the conduct of legal or
arbitration proceedings by the Vendors, the Purchaser agrees to allow
the Vendors and their Advisers, on receiving reasonable notice from
the Vendors:
(i) access on such terms as would satisfy section 263 of the Tax Act
to the Records at all reasonable times, to inspect (free of
charge) and obtain copies including certified copies (at the
Vendors' expense) of, the Records; and
(ii) reasonable access to employees of the Purchaser or the Group to
assist the Vendors in preparing the tax returns, accounts
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and statements and in dealing with any such statutory
obligations, Tax, Relief or legal or arbitration proceedings.
(c) The Vendors will reimburse the Purchaser for any reasonable costs
incurred by the Purchaser in retrieving any Records for the Vendors
under this Clause 9.1.
(d) No Purchaser Entity shall be obliged to waive privilege. Each
Purchaser Entity may require the Vendors to take reasonable steps to
preserve confidentiality.
9.2 RETENTION
The Purchaser agrees to, and shall ensure that the Group Members, permit
the Vendors to retain for their own purposes, but not for commercial or
business development purposes, a copy of any Record which is in the
possession of the Vendors or the Vendors' Guarantor on Completion. The
Vendors or Vendor's Guarantor shall keep all such Records confidential
other than disclosures:
(a) to its Advisers, if those Advisers undertake to keep the information
disclosed confidential; or
(b) made in compliance with any applicable law or requirement of any
regulatory body (including any relevant Stock Exchange).
10. THE COMPLETION STATEMENT
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10.1 PREPARATION OF COMPLETION STATEMENT
The Vendors and the Purchaser shall co-operate to ensure that as soon as
practicable after the Completion Date and in any event not later than 40
business days thereafter the draft Completion Statement shall have been
prepared by the Vendors.
10.2 DELIVERY OF COMPLETION STATEMENT AND VENDORS' ACCOUNTANTS REPORT
Within 10 business days after the preparation of the draft Completion
Statement in accordance with Clause 10.1 the Vendors shall procure the
Vendors' Accountants to provide to the Vendors and the Purchaser a copy of
the Completion Statement together with a written report:
(a) stating that, in their opinion, the Completion Statement has been
prepared in the manner provided in Clause 10.5;
(b) stating their opinion as to the amount of Net Assets and the amount
(if any) by which Net Assets exceeds or is less than the amount of
Preliminary Net Assets (respectively a REPORTED EXCESS or a REPORTED
SHORTFALL);
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(c) stating their opinion as to the amount of the Total Adjusted Purchase
Price and, if applicable, the allocation thereof among the Sale Shares
and Offshore FM Business to which any adjustment relates; and
(d) stating their opinion as to the allocation of assets and liabilities
of the Group as between the FM Businesses and the IB Businesses.
10.3 ACCESS TO INFORMATION
The Purchaser shall:
(a) provide or ensure the provision of all information and assistance
which may be requested by the Vendors and the Vendors' Accountants in
connection with the preparation and review of the Completion
Statement; and
(b) permit representatives of the Vendors and the Vendors' Accountants to
have access to and take extracts from or copies of any books,
correspondence, accounts or other records relating to the Group in its
possession or control.
10.4 REVIEW BY PURCHASER'S ACCOUNTANTS
The Purchaser shall instruct the Purchaser's Accountants to examine and
review the working papers of the Vendors and the Vendors' Accountants
relating to the preparation of the Completion Statement. The Purchaser's
Accountants shall conduct this examination and review on receipt of the
Completion Statement and working papers under Clause 10.2 and shall
complete it within 15 business days of such receipt (the REVIEW PERIOD).
The parties shall co-operate to ensure that the Purchaser's Accountants are
given all information and explanations they reasonably request in relation
to the Completion Statement during the Review Period.
10.5 BASIS OF PREPARATION OF COMPLETION STATEMENT
The Completion Statement shall be prepared in accordance with the
Accounting Principles and in the form set out in Schedule 6.
10.6 REPORT BY PURCHASER'S ACCOUNTANTS
The Purchaser shall instruct the Purchaser's Accountants to provide to the
Vendors and the Purchaser, by no later than the end of the Review Period, a
report by the Purchaser's Accountants:
(a) stating whether the Purchaser's Accountants agree with the amount of
Net Assets and the allocation of assets and liabilities between the FM
Businesses and the IB Businesses stated in the Completion Statement
and the Total Adjusted Purchase Price or the allocation thereof among
the Sale Shares and Offshore FM Businesses notified by the Vendors'
Accountants; or
(b) if the Purchaser's Accountants do not agree with the amount of Net
Assets or the allocation of assets and liabilities between the FM
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Businesses and the IB Businesses stated in the Completion Statement or
the Total Adjusted Purchase Price or the allocation thereof in
accordance with Clause 10.10 notified by the Vendors' Accountant,
setting out:
(i) the matters in respect of which the Purchaser's Accountants
disagree with the Vendors' Accountants;
(ii) the grounds on which the Purchaser's Accountants disagree with
the Vendors' Accountants; and
(iii) their opinion as to the amount of Net Assets, the allocation of
assets and liabilities between the FM Businesses and the IB
Businesses and Total Adjusted Purchase Price and the allocation
of it in accordance with Clause 10.10.
10.7 APPLICATION OF CLAUSE 11.1
Clause 11.1 will apply if the Purchaser's Accountants:
(a) state in their report delivered under Clause 10.6 that they agree with
the amount of Net Assets and the allocation of assets and liabilities
between the FM Businesses and the IB Businesses stated in the
Completion Statement and the amount of the Total Adjusted Purchase
Price and the allocation of it in accordance with Clause 10.10, as
notified by the Vendors' Accountants; or
(b) fail to deliver their report by the end of the Review Period (in
respect of which time is of the essence).
10.8 RESOLUTION OF DISPUTES AND APPLICATION OF CLAUSE 11.2
(a) Clause 11.2 will apply if, and only if, the Purchaser's Accountants
deliver a report of the kind contemplated by Clause 10.6(b). The
matters of disagreement stated in the report by the Purchaser's
Accountants, if not resolved between the Vendors and the Purchaser
within 10 business days of delivery of the report by the Purchaser's
Accountants, will be referred for resolution to an Expert.
(b) The Expert shall be instructed to:
(i) decide within the shortest practicable time the matters of
disagreement;
(ii) amend the Completion Statement accordingly; and
(iii) deliver a report stating, on the basis of his decision, his
opinion as to the amount of Net Assets, the allocation of assets
and liabilities between the FM Businesses and the IB Businesses
and the Total Adjusted Purchase Price and the allocation of it
in accordance with Clause 10.10.
(C) The Expert shall decide the procedures to be followed in order to
resolve the matters of disagreement. The Vendors and the Purchaser
shall provide, and shall ensure that the Vendors' Accountants and the
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Purchaser's Accountants respectively provide, to the Expert all
information and assistance he reasonably requests for the purpose of
his report.
10.9 CONCLUSIVENESS OF REPORT
For the purposes of this Clause 10:
(a) the Vendors' Accountants and the Purchaser's Accountants shall act as
independent experts, not as arbitrators;
(b) except to the extent that Clauses 10.6(b) and 10.8 may be applicable,
the Vendors' Accountants' decision as to the Completion Statement,
the amount of Net Assets, the allocation of assets and liabilities
between the FM Businesses and the IB Business, the Total Adjusted
Purchase Price and the allocation of it among the Sale Shares and
Offshore FM Businesses shall be conclusive, final and binding on the
parties (except in the case of manifest error); and
(c) the Expert (if appointed) shall act as an independent expert, not as
arbitrator. The Expert's decision as to the amount of Net Assets, the
allocation of assets and liabilities between the FM Businesses and
the IB Business, the Total Adjusted Purchase Price and the allocation
of it among the Sale Shares and Offshore FM Businesses shall be
conclusive, final and binding on the parties (except in the case of
manifest error).
10.10 ADJUSTMENT OF PURCHASE PRICE
If the Completion Statement or, if applicable, the Expert's Report states
that any adjustment of the Total Purchase Price should relate to
particular Sale Shares or Offshore FM Business, the Purchase Price of that
asset shall be adjusted accordingly. Otherwise any adjustment shall be
deemed to be made to the Purchase Price of the Sale Shares or Offshore FM
Business in the proportions in which they comprise the Total Purchase
Price.
10.11 COSTS
The Vendors and the Purchaser shall bear their own costs of and incidental
to this Clause 10, the Vendors shall bear the costs of the Vendors'
Accountants, the Purchaser shall bear the costs of the Purchaser's
Accountants and the costs of the Expert (if appointed) shall be borne one
half by the Vendors and one half by the Purchaser.
11. POST-COMPLETION ADJUSTMENT
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11.1 IF COMPLETION STATEMENT FINAL
If this Clause applies by operation of Clause 10.7 then, if the amount of
Net Assets set out in the Completion Statement:
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(a) is less than the amount of Preliminary Net Assets, the Vendors shall
within 2 business days of the triggering of this Clause pay by
telegraphic transfer cheque to the Purchaser an amount equal to the
Reported Shortfall;
(b) exceeds Preliminary Net Assets, the Purchaser shall within 2 business
days of the triggering of this Clause pay by telegraphic transfer to
the Vendors an amount equal to the Reported Excess; and
(c) equals Preliminary Net Assets, no adjustment to the consideration
payable by the Purchaser shall be made.
11.2 If the Accountants have disagreed
If this Clause applies by operation of Clause 10.8, within 2 business days
of the disagreement between the Vendors' Accountants and the Purchaser's
Accountants being resolved between the parties or of the delivery of the
report by the Expert under Clause 10.8 (as the case may be), if the amount
of Net Assets set out in the Completion Statement (as resolved by the
parties or decided by the Expert):
(a) is less than the amount of Preliminary Net Assets, the Vendors shall
pay by bank cheque to the Purchaser an amount equal to the shortfall;
(b) exceeds Preliminary Net Assets, the Purchaser shall pay by bank
cheque to the Vendors (or as they direct) an amount equal to .the
excess;
(c) equals Preliminary Net Assets, no adjustment to the consideration
payable by the Purchaser shall be made.
11 3. INTEREST ON ANY ADJUSTMENT AMOUNT
The party required to pay an adjustment amount pursuant to Clause 11.1 or
11.2 shall, at the time it makes such payment, also pay to the person
entitled to the adjustment amount an amount equal to interest payable on
the adjustment amount calculated from the Completion Date to the date of
payment at the rate of 6% per annum.
12. DROP DEAD DATE ADJUSTMENTS
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12.1 FAILURE TO COMPLETE
If Clause 2.7 applies:
(a) the Completion Statement shall be adjusted to reflect the fact that
the sale and purchase of the Excluded Shares is not proceeding;
(b) the Purchase Price or Adjusted Purchase Price (as the case may be) of
the Excluded Shares plus interest under Clause 11.3 shall be refunded
to the Purchaser as soon as practicable; and
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(c) any Disclosure Material and Records relating solely or primarily to
the Excluded Shares or the Excluded Company will be returned to the
relevant Vendor.
13. USE OF NAMES AND TRADE MARKS
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13.1 Covenant not to use by Purchaser The Purchaser undertakes to each Vendor
and the Warrantor (on behalf of BTC) that, without their written consent,
the Purchaser shall not, nor shall any Purchaser Entity, whether:
(a) on its own account; or
(b) jointly with or on behalf of any other person or body corporate, do
any of the following:
(c) anywhere in the world -
(i) at any time after the Transition Date, use an Excluded Name or
the Pyramid Device for any purpose, including as a part of a
business name, company name, trade mark or logo; or
(ii) at any time, apply for the registration, or procure any other
person to apply for the registration, of any trade mark,
business name or company name that is or includes an Excluded
Name or the Pyramid Device;
(d) outside of Australia and New Zealand -
(i) at any time after the Transition Date, use, or carry on any
business involving the use of, the BT Name for any purpose,
including as part of a business name, company name, trade mark
or logo unless permitted under Clause 13.2 or 13.9; or
(ii) at any time, apply for the registration, or procure any other
person to apply for the registration, of any trade mark,
business name or company name that is or includes the BT Name.
13.2 PURCHASER'S USE OF BT NAME
(a) The Purchaser Entities shall be entitled on and from the Completion
Date to use the BT Name, whether as a registered or unregistered
trade mark, business name or company name but only:
(i) in connection with the business activities of funds management,
portfolio services or margin lending, as carried on or
conducted in Australia or New Zealand;
(ii) in connection with the business activities of the IB Businesses
anywhere in the world but only until the Transition Date;
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(iii) in connection with the business activities of funds management,
portfolio services or margin lending conducted outside
Australia and New Zealand until the Transition Date; and
(iv) (subject to clause 13.9) in connection with the business
activities of funds management, portfolio services or margin
lending conducted outside Australia and New Zealand after the
Transition Date where:
(A) the use is associated with the offering of a product or
service where the funds management, margin lending or
portfolio services activity in respect of that product or
service is performed by a Purchaser Entity in Australia or
New Zealand; or
(B) such use is necessarily incidental to its funds
management, portfolio services or margin lending
businesses as carried on and conducted in Australia or New
Zealand,
and, without prejudice to Clause 13.9, no member of the
Vendors' Group will be entitled to bring any Claim against any
Purchaser Entity for such use.
(b) The Warrantor agrees to procure BTC to apply to the trade marks
offices in Australia and New Zealand for registration of the mark BT
Margin Lending and BT Portfolio Services in a form prepared by the
Purchaser within 15 business days from the Completion Date and to '
assign all rights in and entitlement to such application or
applications to the Purchaser or its nominee (being a Closely-held
Subsidiary of the Purchaser) on request for $1.00.
(c) No Purchaser Entity or any of its Officers will be permitted to use
the name Pyramid anywhere in the world.
13.3 COVENANT NOT TO USE BY THE WARRANTOR
The Warrantor undertakes to the Purchaser that at all times after the
Transition Date it shall not, nor shall any Related Body Corporate or
child entity of the Warrantor (as that expression is defined in Part 2E.2
of the Corporations Law), whether:
(a) on its own account; or
(b) jointly with or on behalf of any other person or body corporate,
within Australia and New Zealand:
(c) use, or carry on any business involving the use of, the name Bankers
Trust, the name BT Pyramid, the Pyramid Device or the BT Name for any
purpose, including as part of a business name, company name, trade
mark or logo unless such use is permitted under Clause 13.4 or with
the consent of the Purchaser; or
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(d) enter into any agreement to transfer, license or authorise the use of
the name Bankers Trust, the name BT Pyramid, the Pyramid Device or
the BT Name in any manner contrary to Clause 13.3(c).
13.4 CONTINUING USE BY WARRANTOR OR DEUTSCHE GROUP
The Deutsche Group and the Warrantor will continue to be permitted to:
(a) use the names ▇▇▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and Pyramid in Australia and
New Zealand;
(b) offer in Australia and New Zealand services which are performed
outside of Australia and New Zealand under the name Bankers Trust in
connection with:
(i) US dollar clearing services;
(ii) funds transfer, treasury and liquidity management;
(iii) operational and transaction services;
(iv) global custody services; or
(c) use the name Bankers Trust in Australia and New Zealand, in
connection with the completion of client transactions and client
contracts entered into prior to the Completion Date in the name of a
company whose name includes Bankers Trust, but
(d) will not be permitted to assign, license or otherwise authorise a
person (other than a Purchaser Entity) the right to use the BT Name
in Australia or New Zealand.
13.5 CANCELLATION OF REGISTRATION
The Warrantor agrees to procure BTC to apply on or before the Transition
Date for cancellation in Australia of the BT Portfolio Services and Device
mark no. 759539 and in New Zealand of the BT Portfolio Services and Device
mark no. 299026, The Warrantor also covenants in furtherance of Clauses
13.2 and 13.3 that, if so requested by the Purchaser, it will procure the
cancellation by BTC of the registration in Australia of the BT and Device
mark no. 666113.
13.6 ACKNOWLEDGEMENT BY THE PURCHASER
The Purchaser acknowledges that the Warrantor, BTC and their respective
Related Bodies Corporate (and any person acting through or in succession
to any of them) are and will be entitled to use:
(a) outside of Australia and New Zealand:
(i) an Excluded Name for any purpose, including as part of a
business name, company name, trade mark or logo;
(ii) the Pyramid Device for any purpose; and
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(iii) the BT Name for any purpose, including as part of a business
name, company name, trade mark or logo;
(b) in Australia and New Zealand, the BT Name in connection with the
custody business carried on by BTCO Australia Pty Limited until the
Transition Date;
(c) anywhere in the world, the Pyramid name (alone or in connection with
any other name), but subject to Clauses 13.3 and 13.4; and
(d) within Australia and New Zealand, the Excluded Names as contemplated
in Clauses 13.3 and 13.4,
and that the Purchaser will not be entitled to bring any Claim against the
Warrantor, BTC or any of their respective Related Bodies Corporate for
such use, including for any allegation of infringement of trade mark,
passing off or false or misleading conduct.
13.7 ASSIGNMENT OR DISPOSAL OF BT NAME
The Purchaser covenants that, it will not, and will ensure that the
Purchaser Entities do not, assign, license or otherwise dispose of the
Purchaser's rights to the BT Name to an entity that is not a Purchaser
Entity unless the relevant assignee agrees to the limitations of use of
the BT Name, Excluded Name and Pyramid Device as set out in this Clause 13
in an agreement expressly in favour of the Warrantor.
13.8 RELINQUISH NAMES
Notwithstanding the foregoing, the Purchaser shall procure that on the
date which is 60 days after the Completion Date in respect of an Excluded
Name and the Transition Date in respect of the BT Name:
(a) each Group Member listed in Schedule 10 will change its company name
to one that does not include any Excluded Name or BT Name;
(b) each Group Member which has registered an Excluded Business Name
under a Business Names Act will furnish Cessation of Business under
Business Names forms for each of the Excluded Business Names
under each relevant Business Names Act to the Warrantor. Each
statement shall be properly executed by the registered proprietor of
the Excluded Business Name;
(c) each Group Member listed in Schedule 10 destroys all unused
stationery and other items which bear any words or marks that
includes an Excluded Name or a BT Name, and if the Warrantor so
specifies, confirm to it in writing the destruction of all unused
stationery and other items in the possession of any Group Member
bearing such words or marks; and
(d) BTAL shall terminate the license granted under clause 20.1 of the
Malaysian Agreement in accordance with clause 20.2.
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13.9 DISTINCTIVE USE
(a) The Purchaser shall ensure that the use of the BT Name by the
Purchaser Entities:
(i) does not represent, suggest or identify a continuing connection
or association with the Warrantor, its Related Bodies Corporate
or any services or products offered by them; and
(ii) is not misleading or deceptive in respect of such matters.
This obligation shall commence no later than the Transition Date.
(b) The actions to be taken under paragraph (a) shall consist of the
requirement to issue all public documents (as defined in the
Corporations Law) and all letters, business cards, marketing
material, promotional items and advertisements to be distributed or
issued outside of Australia and New Zealand where the BT Name, or a
name of a Purchaser Entity which includes the BT Name, appears in or
on such an item, by displaying in reasonable proximity to where the
name first appears, a statement to the following effect:
A subsidiary of Principal Financial Services, Inc.; or
A member of Principal Financial Services Group.
(c) The Purchaser will be entitled to use the BT Name on an internet site
or webpage but only if a statement to the effect of:
A subsidiary of Principal Financial Service, Inc.; or
A member of Principal Financial Services Group.
or a logo of the Purchaser satisfactory to the Warrantor appears
immediately under or above the use of such name on the first page of
such site or webpage.
13.10 PROTECTION OF BT NAME
(a) For the purposes of Clause 13 and the Deed of Assignment of Trade
Marks, the Warrantor shall (at its own cost), and shall procure BTC
to, provide to the Purchaser Entities such assistance as the
Purchaser may reasonably require:
(i) in relation to the defence of any proceedings or claim by a
person challenging or opposing the use of the BT Name by a
Purchaser Entity or the registration by a Purchaser Entity of
trade marks incorporating the BT Name (including but not
limited to a challenge pursuant to Section 92 of the Trade
Marks Act 1995); and
(ii) to apply for and maintain the registration of trade marks
incorporating the BT Name.
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The assistance which the Warrantor and BTC must provide includes
the provision of evidence as to BTC's use of the BT Name.
(b) The Warrantor must not, and must ensure that BTC and all other
members of the Vendors' Group do not, challenge or call into
question in any way the right of any Purchaser Entity to use the
BT Name.
(c) The obligations of the Warrantor (and BTC) under this Clause
13.10 only apply in respect of actions taken or to be taken by a
Purchaser Entity which do not constitute a breach by it or the
Purchaser of any of the terms of Clause 13.
13.11 BREACH OF COVENANT
The parties acknowledge that damages alone would not constitute an
adequate remedy for a breach of any of the provisions of this Clause 13
and that the innocent party will be entitled in that event to pursue all
legal and equitable remedies in connection with the breach.
13.12 BENEFIT OF PURCHASER COVENANTS
The covenants given by the Purchaser under this Clause 13 are given for
the benefit of the Warrantor, the Vendors and their respective Related
Bodies Corporate by the Purchaser as principal and on behalf of the
Purchaser Entities and will be repeated by the Purchaser in respect of
any entities that become Purchaser Entities at such time and any action
taken by Purchaser Entities that is inconsistent with the provisions of
this Clause 13 shall be deemed to be a breach of such provision by the
Purchaser and the defaulting Purchaser Entities.
14. YEAR 2000 ISSUE
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(a) The Purchaser acknowledges that neither the Vendors' Group nor
the Warrantor make any representation or warranty in respect of
the Year 2000 Issue other than Warranty 11 in Part I of Schedule
4.
(b) The Purchaser represents and warrants that it has reviewed the
Vendors' Group Year 2000 Issue compliance program.
(c) Notwithstanding any other provision of this Deed other than
Warranty 11 in Part I of Schedule 4, none of the Vendors or the
Warrantor shall be liable to the Purchaser in respect of any
Claim incurred or suffered by the Purchaser or any Group Member
(including loss or damage caused by negligence), arising
directly or indirectly as a result of:
(i) a System of any Group Member being affected by Year
2000 Issues;
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(ii) the failure of any third party to supply goods or
services to any Group Member directly or indirectly as
a result of Year 2000 Issues; or
(iii) any defect in goods or disruption of services supplied
to any Group Member by a third party or supplied by any
Group Member to a third party directly or indirectly as
a result of Year 2000 Issues.
15. INSURANCE
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(a) The Purchaser acknowledges that it has reviewed in the
Disclosure Material the insurance arrangements for the Group.
(b) The Purchaser acknowledges that on and from Completion no member
of the Group will have the benefit of any indemnity or other
cover under any insurance policy or contract taken out by or in
the name of any member of the Deutsche Group or the Vendors'
Group.
16. NOTICES
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Any notice given under this Deed:
(a) must be in writing addressed to the intended recipient at the
address shown below or the address last notified by the intended
recipient to the sender:
the Vendors and the Warrantor:
c/o Bankers Trust Corporation
BT Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇▇
General Counsel
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Deutsche Bank AG
Level ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
General Counsel
Fax: ▇▇▇-▇-▇▇▇▇-▇▇▇▇▇▇▇
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the Purchaser and the Purchaser's Guarantor:
Principal Financial Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and Deputy General Counsel
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
(b) must be signed by a person duly authorized by the sender; and
(c) will be taken to have been given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the above address; and
(ii) (in the case of fax) on receipt by the sender of the
confirmation of transmission,
but if delivery or receipt occurs on a day on which business is
not generally carried on in the place to which the communication
is sent or is later than 4 pm (local time) it will be taken to
have been duly given or made at the commencement of business on
the next day on which business is generally carried on in the
place.
(d) Any notice to be given by one or more of the Vendors and the
Warrantor may be signed on behalf of that Vendor, Vendors or the
Warrantor by a person from time to time authorized to give
notice under any Transaction Document by the Warrantor.
(e) A notice given to the Warrantor shall be taken to be a notice
given to the Vendors.
17. NON-DISCLOSURE
--------------------------------------------------------------------------------
17.1 CONFIDENTIALITY
Subject to Clause 17.2, each party shall keep the terms of this Deed
confidential.
17.2 EXCEPTIONS
A party may make any disclosures in relation to this Deed as, in its
absolute discretion, it thinks necessary to:
(a) its Advisers and financiers, if those persons undertake to keep
the information disclosed confidential;
(b) comply with any applicable law or requirement of any
regulatory body (including any relevant stock exchange) or
ratings agency provided that the party first informs the other
parties in relation to its intention to make such disclosure; or
--------------------------------------------------------------------------------
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(c) any of its employees to whom it is necessary to disclose the
information, on receipt of an undertaking from that employee to
keep the information confidential.
17.3 PUBLIC ANNOUNCEMENTS
Except as required by applicable law or the requirements of any
regulatory body (including any relevant stock exchange), in
which case each party agrees to first inform the other parties
of its intention to make such a disclosure, all press releases
and other public announcements relating to the transactions
dealt with by this Deed must be in terms agreed by the parties.
18. THE VENDORS' GUARANTOR'S GUARANTEE
--------------------------------------------------------------------------------
18.1 UNDERTAKING
In consideration of the Purchaser and the Purchaser's Guarantor entering
into this Deed at the request of the Vendors' Guarantor, the Vendors'
Guarantor:
(a) unconditionally and irrevocably guarantees to the Purchaser and
the Purchaser's Guarantor on demand the due and punctual
performance by each of the Vendors of all its obligations under
this Deed; and
(b) shall indemnify the Purchaser and the Purchaser's Guarantor
against each Claim incurred or suffered by or brought or made or
recovered against the Purchaser or the Purchaser's Guarantor in
connection with any default or delay by any Vendor in the due
and punctual performance of its obligations under this Deed.
18.2 PRINCIPAL OBLIGATION
This Clause 18 shall:
(a) be a principal obligation of the Vendors' Guarantor and shall
not be treated as ancillary or collateral to any right or
obligation;
(b) extend to cover this Deed as amended, varied or replaced,
whether with or without the consent of the Vendors' Guarantor;
and
(c) be a continuing guarantee and indemnity and shall remain in full
force and effect for so long as any Vendor has any liability or
obligation to the Purchaser or the Purchaser's Guarantor and
until all of those liabilities or obligations have been fully
discharged.
18.3 NO WITHHOLDINGS
The Vendors' Guarantor will make all payments which may be or become .
due under this Clause 18 free and clear and without deduction of any and
all present and future taxes, duties, levies, imposts, deductions,
charges and withholdings of Australia or any other country or
jurisdiction. If the Vendors' Guarantor is compelled by law to deduct
any such tax, duty, levy,
--------------------------------------------------------------------------------
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impost, deduction, charge or withholding it will pay to the Purchaser or
the Purchaser's Guarantor (as the case may be) such additional amounts
as may be necessary so that the net payment of the amount due under this
Clause 18 after that deduction shall be not less than the payment would
have been had there been no deduction.
18.4 NO SET OFF
The Vendors' Guarantor has no right to set off or otherwise deduct or
withhold any moneys which it may be or become liable to pay to the
Purchaser or the Purchaser's Guarantor under this Clause 18 against any
moneys which the Purchaser, the Purchaser's Guarantor or any Purchaser
Entity may be or become liable to pay to any of the Vendors or the
Vendors' Guarantor whether under this Deed or otherwise.
19. DEFAULT INTEREST
--------------------------------------------------------------------------------
19.1 RATE
If a party fails to pay any amount payable under this Deed on the due
date for payment, that party must pay interest on the amount unpaid at
the greater of 7.5% per annum or the rate (if any) fixed or payable
under any judgement obtained in respect of the amount owing.
19.2 ACCRUALS
The interest payable under Clause 19.1:
(a) accrues from day to day from the due date for payment up to the
actual date of payment; and
(b) may be capitalised by the person to whom it is payable at
monthly intervals.
20. FURTHER ASSURANCES
--------------------------------------------------------------------------------
Each party shall take all steps, execute all documents and do everything
reasonably required by any other party to give effect to any of the
transactions contemplated by this Deed.
21. ENTIRE AGREEMENT
--------------------------------------------------------------------------------
This Deed and the other Transaction Documents contain the entire
agreement of the parties with respect to their subject matter. They
constitute the only conduct relied on by the parties (and supersede all
earlier conduct by the parties) with respect to their subject matter. '
--------------------------------------------------------------------------------
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22. AMENDMENT
--------------------------------------------------------------------------------
This Deed may be amended only by another agreement executed by all
parties who may be affected by the amendment.
23. ASSIGNMENT
--------------------------------------------------------------------------------
The rights and obligations of each party under this Deed. are personal.
They cannot be assigned, charged or otherwise dealt with, and no party
shall attempt or purport to do so, without the prior written consent of
all the parties.
24. NO WAIVER
--------------------------------------------------------------------------------
No failure to exercise and no delay in exercising any right, power or
remedy under this Deed will operate as a waiver. Nor will any single or
partial exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
25. WAIVER EFFECTIVE
--------------------------------------------------------------------------------
A waiver of, or of any breach of, any condition, right or obligation
under this Deed by a party of one part who has the benefit of that
condition right or obligation or is otherwise entitled to waive it will
only be effective upon the giving of written notice to each party of
another part specifying the breach, condition, right or obligation
waived.
26. SEVERANCE
--------------------------------------------------------------------------------
Any provision or part of a provision of this Deed which is prohibited or
unenforceable in any jurisdiction will be ineffective in that
jurisdiction to the extent of the prohibition or unenforceability. That
will not invalidate the remaining provisions of this Deed nor affect the
validity or enforceability of that provision in any other jurisdiction.
27. NO MERGER
--------------------------------------------------------------------------------
The rights and obligations of the parties will not merge on completion
of any transaction under this Deed. They will survive the execution and
delivery of any assignment or other document entered into for the
purpose of implementing any transaction.
--------------------------------------------------------------------------------
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28. COUNTERPARTS
--------------------------------------------------------------------------------
This Deed may be executed in any number of counterparts. All
counterparts taken together will be taken to constitute one agreement.
29. STAMP DUTY AND COSTS
--------------------------------------------------------------------------------
Each party shall bear its own costs arising out of the preparation of
this Deed and the other Transaction Documents but the Purchaser shall
bear any stamp duty or similar impost (including fines, interest and
penalties) chargeable in any jurisdiction on this Deed and the other
Transaction Documents, on any instruments entered into under this Deed
or the other Transaction Documents, and in respect of a transaction
evidenced by this Deed or the other Transaction Documents (but not the
Group Restructuring). The Purchaser shall indemnify the Vendors on
demand against any liability for that stamp duty (including fines,
interest and penalties).
30. GOVERNING LAW
--------------------------------------------------------------------------------
This Deed is governed by the laws of New South Wales. The parties submit
to the non-exclusive jurisdiction of the courts exercising jurisdiction
there.
31. THE PURCHASER'S GUARANTOR'S GUARANTEE
--------------------------------------------------------------------------------
31.1 UNDERTAKING
In consideration of each of the Vendors and the Warrantor entering into
this Deed at the request of the Purchaser's Guarantor, the Purchaser's
Guarantor:
(a) unconditionally and irrevocably guarantees to each of the
Vendors and the Warrantor on demand the due and punctual
performance by the Purchaser of all its obligations under this
Deed; and
(b) shall indemnify each of the Vendors and the Warrantor against
each Claim incurred or suffered by or brought or made or
recovered against any of the Vendors or the Warrantor in
connection with any default or delay by the Purchaser in the due
and punctual performance of its obligations under this Deed.
31.2 PRINCIPAL OBLIGATION
This Clause 31 shall:
(a) be a principal obligation of the Purchaser's Guarantor and shall
not be treated as ancillary or collateral to any right or
obligation;
(b) extend to cover this Deed as amended, varied or replaced,
whether with or without the consent of the Purchaser's
Guarantor; and
--------------------------------------------------------------------------------
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(c) be a continuing guarantee and indemnity and shall remain in full
force and effect for so long as the Purchaser has any liability
or obligation to any of the Vendors or the Warrantor and until
all of those liabilities or obligations have been fully
discharged.
31.3 NO WITHHOLDINGS
The Purchaser's Guarantor will make all payments which may be or become
due under this Clause 31 free and clear and without deduction of any and
all present and future taxes, duties, levies, imposts, deductions,
charges and withholdings of Australia or any other country or
jurisdiction. If the Purchaser's Guarantor is compelled by law to deduct
any such tax, duty, levy, impost, deduction, charge or withholding it
will pay to the Vendor or the Warrantor (as the case may be) such
additional amounts as may be necessary so that the net payment of the
amount due under this Clause 31 after that deduction shall be not less
than the payment would have been had there been no deduction.
31.4 NO SET OFF
The Purchaser's Guarantor has no right to set off or otherwise deduct or
withhold any moneys which it may be or become liable to pay to any of
the Vendors or the Warrantor under this Clause 31 against any moneys
which the Vendor, the Warrantor or any of their Related Bodies Corporate
may be or become liable to pay to the Purchaser or the Purchaser's
Guarantor whether under this Deed or otherwise.
32. SPECIAL INDEMNITY
--------------------------------------------------------------------------------
(a) (PARTIES' INTENTION) It is the intention of the parties that:
(i) the provisions of this Clause 32 shall be applied so as
to put the Indemnitees (as defined below) in the same
position that would have existed had the Purchaser not
purchased the IB Businesses and consummated the other
transactions related thereto contemplated by this Deed;
(ii) if the Purchaser shall have received, not later than
June 30, 2001, not less than $112 million in cash in
accordance with the IB Deed, no Indemnitee shall be
entitled to claim under this Clause 32 for any loss
suffered by reason of diminution in value of the IB
Businesses;
(iii) no payment shall be required under this Clause 32 until
the Claim at the time in question (other than a claim
for diminution in value) involves the obligation of
immediate or imminent payment by the Indemnitee;
(iv) no Claim in respect of any diminution in value of the IB
Businesses or of any asset or property thereof such as,
without limitation, an IB Business trading loss in the
ordinary course
--------------------------------------------------------------------------------
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of business, shall be covered by this Clause 32 unless
and until an Indemnitee (as distinguished from the
affected IB Businesses themselves) has incurred or
suffered a Claim;
(v) the Indemnitees shall not be entitled to any double
recovery in respect of any Claim or the circumstances
giving rise to that Claim; and
(vi) the Indemnitees shall be protected fully from any Claim
which is incurred or suffered by any Indemnitee at any
time relating to or arising out of the IB Businesses,
and this Clause 32 shall be construed to give effect to these
intentions.
(b) (INDEMNITY) From and after the date of this Deed, the Warrantor
agrees unconditionally and irrevocably upon demand to pay and
indemnify the Purchaser and (without duplication) each Purchaser
Entity (other than the BTIB Companies) and their respective
successors and assigns (collectively, the INDEMNITEES) in
respect of any Claim of any kind whatsoever, including any Claim
for diminution in value (whether direct or indirect, actual or
contingent and howsoever and whenever arising and whether or not
any person was, prior to the Completion Date, aware of the Claim
or the circumstances giving rise to it) incurred or suffered by
or brought or made or recovered against any Indemnitee:
(i) to the extent that it relates to the IB Businesses or
results from any action taken or not taken by the IB
Businesses or (any member of the Vendors' Group in
relation to the IB), Businesses, including any
acquisition, ownership, sale or other disposition,
direct or indirect, of or by any member of the Group of
all or any portion of the IB Businesses (including the
entry by any member of the Group or any Indemnitee into
any agreement, arrangement or understanding in relation
to the IB Businesses), whether before or after the
Completion Date, including any Claim incurred or
suffered as a result of any breach of warranty under any
agreement entered into pursuant to clause 2.1 of the IB
Deed; or
(ii) relating to any Claim by a Public Authority in
connection with Vendors' sale of the Sale Shares,
PROVIDED THAT:
(A) this Clause 32(b) shall not relieve any
Indemnitee from performance under the terms of
any written contractual obligation (including
any obligation to pay money) arising under any
Transaction Document, nor shall the existence of
any such contractual obligation relieve the
Warrantor of its obligations under this
--------------------------------------------------------------------------------
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Clause 32 in respect of any Claim (including any
loss arising from diminution in value);
(B) in calculating any loss incurred or suffered by
the Indemnitees, credit shall be given for all
amounts or benefits received by the Indemnitees
or by a BTIB Company (other than those amounts to
which an Indemnitee is entitled under the IB
Deed) to the extent to which such amounts relate
to the BTIB Group or otherwise to the IB
Businesses except to the extent to which such.
amounts or benefits are applied to meet
liabilities of the IB Businesses or paid to a
member of the Deutsche Group pursuant to the IB
Deed;
(C) Clause 8.6(e) shall apply to this Clause 32 as if
it were a Warranty;
(D) the amount to be indemnified pursuant to this
Clause in respect of a Claim shall equal the
amount of the Claim plus any additional amount
such that the Indemnitee will be made whole in
respect the Claim in question on an after tax
basis; and
(E) the Warrantor and each Indemnitee shall act
reasonably in relation to any circumstance which
could give rise to a claim under this Clause 32.
(c) (PRINCIPAL OBLIGATION) Clause 32(b) shall:
(i) be a principal obligation of the Warrantor and shall not
be treated as ancillary or collateral to any right or
obligation;
(ii) be a continuing indemnity and shall remain in full
force and effect without any limit as to time; and
(iii) subject to Clause 32(a), be construed broadly in
favour of Indemnitees.
The rights of the Indemnitees under this Clause 32 shall not be
limited or restricted by any other provision of this Deed, the
IB Deed or any other Transaction Document and, without
limitation, shall not be subject to any maximum or "cap",
deductible or threshold, or any other similar limitation
provision.
(d) (NO WITHHOLDINGS) The Warrantor will make all payments which may
be or become due under Clause 32(b) free and clear and without
deduction of any and all present and future Taxes, duties,
levies, imposts, deductions, charges and withholdings of
Australia or any other country or jurisdiction. If the Warrantor
is compelled by law to deduct any such Tax, duty, levy, impost,
deduction, charge or withholding it will pay to the Indemnitees
(as the case may be) such additional amounts as may be necessary
so that the net payment of
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the amount due under Clause 32(b) after that deduction is not
less than the payment would have been had there been no
deduction.
(e) (NO SET OFF) Neither the Warrantor nor any member of the
Vendors' Group shall set off or otherwise deduct or withhold any
moneys which it may be or become liable to pay to an Indemnitee
under this Clause 32 against any moneys which the Indemnitee may
be or become liable to pay to the Warrantor or any of the
Vendors or any other member of Vendors' Group or the Vendors'
Guarantor whether under this Deed or otherwise.
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SCHEDULE 1
SHARES AND BUSINESSES
--------------------------------------------------------------------------------
PART I
--------------------------------------------------------------------------------
COLUMN 1: COLUMN 2: COLUMN 3: COLUMN 4: COLUMN 5:
VENDOR COMPANY IN NO. OF SALE PURCHASE PRICE PERCENTAGE OF
WHICH SALE SHARES ISSUED CAPITAL
SHARES ARE HELD
================================================================================
BTLLC BT Investments 1,108 $1,994,713,987 100%
(Australia) ordinary shares
Limited
(BTIA)
--------------------------------------------------------------------------------
BTNZ BT Funds 14,488,336 $89,839,683 100%
Management ordinary shares
(NZ) Limited
--------------------------------------------------------------------------------
BTNZ BT New 212,643 $160,317 100%
Zealand ordinary shares
Nominees
Limited
--------------------------------------------------------------------------------
BTNZ BT Portfolio 10,006,344 $8,628,389 100%
Services (NZ) ordinary shares
Limited
--------------------------------------------------------------------------------
BTID BT Funds 349,999 $4,834,695 99.9999%
Management common shares
Asia Limited
(BTFMA)
--------------------------------------------------------------------------------
BTNHK BTFMA 1 common $1 0.0001%
share
--------------------------------------------------------------------------------
BTFIC BT Funds 100 Class A $701,125 100%
Management common shares
(Singapore)
Limited
(BTFMS)
--------------------------------------------------------------------------------
BTFIC BTFMS 160 Class B $1,121,799 100%
common shares
--------------------------------------------------------------------------------
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PART II
--------------------------------------------------------------------------------
COLUMN 1: COLUMN 2: COLUMN 3:
VENDORS BUSINESS PURCHASE PRICE
================================================================================
BT Fund Managers Offshore FM Business $1
(Ireland) Limited (Ireland)
--------------------------------------------------------------------------------
BTI Offshore FM Business $1
(UK)
--------------------------------------------------------------------------------
BTC Offshore FM Business $1
(Alberta)
--------------------------------------------------------------------------------
BTC Offshore FM Business $1
(Common Fund)
--------------------------------------------------------------------------------
TOTAL PURCHASE PRICE: A$2,100,000,000
(PARTS I AND II)
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SCHEDULE 2
THE COMPANIES AND OTHER GROUP MEMBERS AS AT COMPLETION
--------------------------------------------------------------------------------
PART I - THE COMPANIES
1. BTIA
(a) Issued capital: US$1,108 divided into 1,108 ordinary shares each fully
paid
(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares
BTLLC Common 1,108
(c) Beneficial owner of shares and number of shares owned:
Beneficial owner Class No. of shares
BTLLC Common 1,108
(d) Place of incorporation: Delaware, United States
(e) Registered office: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(f) Nature of business: Holding Company
2. BT FUNDS MANAGEMENT (NZ) LIMITED
(a) Issued capital NZ$14,488,336 divided into 14,488,336 ordinary shares
each fully paid
(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares
BTNZ ordinary 14,488,336
(c) Beneficial owner of shares and number of shares owned:
Beneficial owner Class No. of shares
BTNZ ordinary 14,488,336
(d) Place of incorporation: Auckland, New Zealand
(e) Registered office: Level 7
PriceWaterhouse Centre,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
(f) Nature of business: Funds management/securities dealer
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3. BT NEW ZEALAND NOMINEES LIMITED
(a) Issued capital:
NZ$212,643 divided into 212,643 ordinary shares each fully paid
(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares
BTNZ ordinary 212,643
(c) Beneficial owner of shares and number of shares owned:
Beneficial owner class No. of shares
BTNZ ordinary 212,643
(d) Place of incorporation: Auckland, New Zealand
(e) Registered office: Level 7
PriceWaterhouse Centre,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
(f) Nature of business: Custody
4. BT PORTFOLIO SERVICES (NZ) LIMITED
(a) Issued capital:
NZ$10,006,344 divided into 10,006,344 ordinary shares each fully paid
(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares.
BTNZ ordinary 10,006,344
(c) Beneficial owner of shares and number of shares owned
Beneficial owner Class No. of shares
BTNZ ordinary 10,006,344
(d) Place of incorporation: Auckland, New Zealand
(e) Registered office: Level 7
PriceWaterhouse Centre,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
(f) Nature of business: Registry Management
5. BTFMA
(a) Issued capital:
US$350,000 divided into 350,000 common shares each fully paid
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(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares
BTID common 349,999
BTNHK common 1
(c) Beneficial owner of shares and number of shares owned:
Beneficial owner Class No. of shares
BTID common 349,999
BTID common 1
(d) Place of incorporation: Victoria, Hong Kong
(e) Registered office: ▇▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
(f) Nature of business: Funds Management
6. BTFMS
(a) Issued capital S$260 divided into 100 Class A common shares and 160
Class B common shares each fully paid
(b) Registered holders of shares and class and number of shares held:
Registered holder Class No. of shares
BTFIC Class A Common 100
BTFIC Class B Common 160
(c) Beneficial owner of shares and number of shares owned:
Beneficial owner Class No. of shares
BTFIC Class A Common 100
BTFIC Class B Common 160
(d) Place of incorporation: Singapore
(e) Registered office: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
#▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(f) Nature of business: Funds management
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PART II - SUBSIDIARIES
PART IIA
NAME OF COMPANY % BUSINESS
BT IB Holdings Pty Limited 100.00
Bankers Trust Australia Limited 100.00
Airport Motorway Infrastructure No. 1 Limited 100.00
BT Australia (H.K.) Financial Services Limited 100.00
BT Australia Securities Pty Limited 100.00
BT IB Limited 100.00
BT Structured Equities Pty Limited 100.00
BT Australia Limited 100.00
Aldisa Nominees Pty Limited 100.00
Bankers Trust Life Limited 100.00
Barvarde Pty Limited 100.00
Bavian Pty Limited 100.00
Bendalba Pty Limited 100.00
Bittoorong Pty Limited 100.00
BT (Queensland) Pty Limited 100.00
BT Alex. Brown Australia Limited 100.00
BT Structured Equities Pty Limited 100.00
Buttonwood Nominees Pty Limited 100.00
Nanway Nominees Pty Limited 100.00
Upmill Nominees Pty Limited 100.00
Woodross Nominees Pty Limited 100.00
BT Australia Corporate Services Pty Limited 100.00
BT Finance Pty Limited 100.00
BT Nominees Pty Limited 100.00
Chifley Services Pty Limited 100.00
BT Australia (HK) Limited 100.00
BT Pacific Management Limited 100.00
BT Capital Markets Nominees Pty Limited 100.00
BT Corporate Finance Limited 100.00
BT Funds Management (International) Limited 100.00
BT Funds Management Limited 100.00
BT Tactical Asset Management Pty Limited 100.00
BT Infrastructure Pty Limited 100.00
BT Lease Management Pty Limited 100.00
*BT Life Nominees Pty Limited 100.00
BT Management Services Pty Limited 100.00
BT Portfolio Services Limited 100.00
BT Custodial Services Pty Limited 100.00
BT Custodians Limited 100.00
Dellarak Pty Limited 100.00
BT Finance & Investments Pty Limited 100.00
National Registry Services Pty Limited 100.00
National Registry Services (WA) Pty Limited 100.00
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BT Properties Pty Limited 100.00
BT Risk Management Advisory Pty Limited 100.00
BT Securities Limited 100.00
BT Securitisation Management Pty Limited 100.00
BT Technology Pty Limited 100.00
Cazinon Pty Limited 100.00
Cemasta Pty Limited 100.00
Cenford Pty Limited 100.00
Channar Investment Nominee Pty Limited 100.00
Pandrew Pty Limited 100.00
Colmoro Pty Limited 100.00
CrownLease Pty Limited 100.00
Deccand Pty Limited 100.00
▇▇▇▇▇▇ Pty Limited 100.00
Dentire Pty Limited 100.00
Erech Pty Limited 100.00
Gemata Pty Limited 100.00
Graldon Pty Limited 100.00
Infrastructure Investments No 1 Pty Limited 100.00
Infrastructure Investment No 2 Limited 100.00
Kedgeree Pty Limited 100.00
Kepile Pty Limited 100.00
Mequab Pty Limited 100.00
Mulcair Pty Limited 100.00
Oniston Pty Limited 100.00
Penderlyn Pty Limited 100.00
Pokrova Pty Limited 100.00
*Portland Investments A Pty Limited 100.00
*Portland Investments B Pty Limited 100.00
*Portland Investments C Pty Limited 100.00
Rawpindi Pty Limited 100.00
Rugarno Pty Limited 100.00
Sanlucar Pty Limited 100.00
Stenquab Pty Limited 100.00
Talamba Pty Limited 100.00
Taralie Pty Limited 100.00
Tecsal Pty Limited 100.00
Vanne Pty Limited 100.00
Wuxta Pty Limited 100.00
BT Science Holdings Limited 100.00
Aluminium Casting Pty Limited 100.00
Anti-Asthma R & D Pty Ltd 100.00
BT Computer Leasing Pty Limited 100.00
BT Project Finance Pty Limited 100.00
BT R&D No 1 Pty Limited 100.00
BT R&D No 7 Pty Limited 100.00
Colanera Pty Limited 100.00
Ensenaba Pty Limited 100.00
Garachine Pty Limited 100.00
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Himakin Pty Ltd 100.00
Kayoota Pty Limited 100.00
Sucrafeed No 1 Pty Limited 100.00
Sucrafeed No 2 Pty Limited 100.00
Santorini One Pty Limited 100.00
Structured Prime Asset Receivables (SPARS) No. 1 Limited 100.00
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PART IIB. BTIB COMPANIES
% OWNED
BT IB Holdings Pty Limited 100.00
Airport Motorway Infrastructure No. 1 Limited 100.00
BT Australia (H-K) Financial Services Limited 100.00
BT Australia Securities Pty Limited 100.00
BT IB Limited 100.00
BT Structured Equities Pty Limited 100.00
Aldisa Nominees Pty Limited 100.00
Barvarde Pty Limited 100.00
Bavian Pty Limited 100.00
Bendalba Pty Limited 100.00
Bittoorong Pty Limited 100.00
BT Alex. Brown Australia Limited 100.00
Buttonwood Nominees Pty Limited 100.00
Nanway Nominees Pty Limited 100.00
Upmill Nominees Pty Limited 100.00
Woodross Nominees Pty Limited 100.00
BT Australia (HK) Limited 100.00
BT Pacific Management Limited 100.00
BT Capital Markets Nominees Pty Limited 100.00
BT Corporate Finance Limited 100.00
BT Infrastructure Pty Limited 100.00
BT Lease Management Pty Limited 100.00
BT Management Services Pty Limited 100.00
BT Properties Pty Limited 100.00
BT Risk Management Advisory Pty Limited 100.00
BT Securitisation Management Pty Limited 100.00
BT Technology Pty Limited 100.00
Cazinon Pty Limited 100.00
Cemasta Pty Limited 100.00
Cenford Pty Limited 100.00
Channar Investment Nominee Pty Limited 100.00
Pandrew Pty Limited 100.00
Colmoro Pty Limited 100.00
CrownLease Pty Limited 100.00
Deccand Pty Limited 100.00
▇▇▇▇▇▇ Pty Limited 100.00
Dentire Pty Limited 100.00
Erech Pty Limited 100.00
Gemata Pty Limited 100.00
Graldon Pty Limited 100.00
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Infrastructure Investments No 1 Pty Limited 100.00
Infrastructure Investment No 2 Limited 100.00
Kedgeree Pty Limited 100.00
Kepile Pty Limited 100.00
Mequab Pty Limited 100.00
Mulcair Pty Limited 100.00
Penderlyn Pty Limited 100.00
Pokrova Pty Limited 100.00
*Portland Investments A Pty Limited 100.00
*Portland Investments B Pty Limited 100.00
*Portland Investments C Pty Limited 100.00
Rawpindi Pty Limited 100.00
Rugarno Pty Limited 100.00
Sanlucar Pty Limited 100.00
Stenquab Pty Limited 100.00
Talamba Pty Limited 100.00
Taralie Pty Limited 100.00
Tecsal Pty Limited 100.00
Vanne Pty Limited 100.00
Wuxta Pty Limited 100.00
BT Science Holdings Limited 100.00
Aluminum Casting Pty Limited 100.00
Anti-Asthma R & D Pty Ltd 100.00
BT Computer Leasing Pty Limited 100.00
BT Project Finance Pty Limited 100.00
BT R&D No 1 Pty Limited 100.00
BT R&D No 7 Pty Limited 100.00
Colanera Pty Limited 100.00
Ensenaba Pty Limited 100.00
Garachine Pty Limited 100.00
Himakin Pty Ltd 100.00
Kayoota Pty Limited 100.00
Sucrafeed No 1 Pty Limited 100.00
Sucrafeed No 2 Pty Limited 100.00
Santorini One Pty Limited 100.00
Structured Prime Asset Receivables (SPARS) No. 1 Limited 100.00
PART IIC. FM COMPANIES
Bankers Trust Australia Limited 100.00
BT Australia Limited 100.00
Bankers Trust Life Limited 100.00
BT (Queensland) Pty Limited 100.00
BT Australia Corporate Services Pty Limited 100.00
BT Finance Pty Limited 100.00
BT Nominees Pty Limited 100.00
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Chifley Services Pty Limited 100.00
BT Funds Management (International) Limited 100.00
BT Funds Management Limited 100.00
BT Tactical Asset Management Pty Limited 100.00
* BT Life Nominees Pty Limited 100.00
BT Portfolio Services Limited 100.00
BT Custodial Services Pty Limited 100.00
BT Custodians Limited 100.00
Dellarak Pty Limited 100.00
BT Finance & Investments Pty Limited 100.00
National Registry Services Pty Limited 100.00
National Registry Services (WA) Pty Limited 100.00
BT Securities Limited 100.00
Oniston Pty Limited 100.00
(*) In liquidation
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SCHEDULE 3
GROUP RESTRUCTURING
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The required pre-Completion group restructuring steps are as set out below.
(a) The ordinary shares in BTCO are transferred from BT Investments
(Australia) Limited to BTFIC for their issue value (which the Vendors
believe to be not materially different from its market value) and
before this transfer, the redeemable preference shares held by BT
Investments (Australia) Limited in BTCO shall be redeemed.
(b) On or before the Completion Date, each subsidiary company of BTAL
shall, to the extent permitted by law, declare and pay such dividends,
which may be franked to an extent which does not exceed the maximum
required franking amount (as that term is defined in section 160AQE of
the 1936 Act), as may be required to enable BTAL to declare and pay
the dividends referred to in paragraph (c).
(c) Before the Completion Date, BTAL will declare, so as to create an
actual indebtedness in favour of BT Investments (Australia) Limited,
two dividends in favour of BT Investments (Australia) Limited as
follows:
(i) to the maximum extent permitted by law, a dividend in an amount
not exceeding A$1.1 billion, to be paid on the Completion Date;
and
(ii) to the maximum extent permitted by law, a dividend payable on
the delivery of the Completion Statement and the Vendors'
Accountants Report as provided for in Clause 10.2 equal to the
aggregate of:
(A) the amount necessary to reduce the Net Assets as disclosed
in the Completion Statement to a figure of $382.8 million;
and
(B) an interest factor of 5% per annum from the Completion Date
to the date of payment,
such dividends to be franked to an extent which does not exceed the
maximum required franking amount (as that term is defined in section
160AQE of the 1936 Act).
(d) BT Investments (Australia) Limited will declare before the Completion
Date and having a record date before the Completion Date so as to
create an actual indebtedness in favour of BT Investments (Australia)
LLC, two dividends in favour of BT Investments (Australia) LLC as
follows:
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(i) a dividend in an amount equal to the dividend declared in
paragraph (c)(i), to be paid to BT Investments (Australia) LLC on
the Completion Date; and
(ii) a dividend in an amount calculated on the basis set out in
paragraph (c)(ii), which dividend shall be payable to BT
Investments (Australia) LLC on the date of receipt by BT
Investments (Australia) Limited of the dividend to be paid under
paragraph (c)(ii).
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SCHEDULE 4
WARRANTIES AND OTHER OBLIGATIONS
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PART I - WARRANTOR'S WARRANTIES
1. SALE SHARES, POWER AND AUTHORITY
1.1 Each Vendor is the registered holder of the Sale Shares appearing opposite
its name in Schedule 1.
1.2 Part I of Schedule 2 sets out the beneficial owner of the Sale Shares.
1.3 The Sale Shares are all fully paid and comprise the whole of the issued
ordinary share capital of the Companies. There are no commitments in place
under which a Company is obliged at any time to issue any shares or other
securities convertible into shares.
1.4 There are no Encumbrances over or affecting the Sale Shares.
1.5 Each of the Vendors, the Vendors' Guarantor and the Warrantor has the power
to enter into and perform this Deed and the Transaction Documents to which
it is a party and has obtained all necessary consents to enable it to do
so. This Deed and each of the Transaction Documents has been duly executed
by each of the Vendors, the Vendors' Guarantor and the Warrantor who is a
party to any such document and is a legal, valid and binding agreement
enforceable against it in accordance with the terms of this Deed or such
document, as appropriate.
1.6 The entry into and performance of this Deed by each of the Vendors, the
Vendors' Guarantor and the Warrantor does not constitute a breach of any
obligation (including any statutory, contractual or fiduciary obligation),
or default under any agreement or undertaking, by which it is bound.
1.7 No meeting has been convened or resolution proposed, or petition presented,
and no order has been made, for the winding-up of a Vendor, the Vendors'
Guarantor and or the Warrantor. No voluntary arrangement has been proposed
or reached with any creditors of a Vendor, the Vendors' Guarantor and or
the Warrantor. Each of the Vendors, the Vendors' Guarantor and the
Warrantor is able to pay its debts as and when they fall due.
2. GROUP MEMBERS AND OTHER COMPANIES
2.1 Each Group Member:
(a) is duly incorporated and accurately described in Schedules 1 and 2;
(b) has full corporate power to own its properties, assets and business
and to carry on its business as it is now conducted; and
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(c) has done everything necessary to do business lawfully in all
jurisdictions in which its business is carried on.
2.2 There are no Encumbrances over or affecting any of the shares in any Group
Member.
2.3 No meeting has been convened or resolution proposed, or petition or other
process presented or threatened, and no order has been made, for the
winding-up of a Group Member. No distress, execution or other similar order
or process has been levied on any of the property or assets of a Group
Member. No voluntary arrangement has been proposed or reached with any
creditors of a Group Member. No receiver, receiver and manager or other
controller (as defined in the Corporations Law), administrator or other
similar officer has been appointed, or is threatened or expected to be
appointed, in relation to a Group Member or over any part of the assets of
a Group Member. There are no circumstances justifying such an appointment.
Each Group Member is able to pay its debts as and when they fall due.
2.4 No writ of execution has issued against a Group Member or the property of a
Group Member and, as far as the Warrantor is aware, there are no
circumstances justifying a writ.
2.5 On the Completion Date, BTAL shall be the registered and beneficial owner
free and clear of all Encumbrances of 30% of the fully paid issued capital
in:
(a) the Malaysian Company; and
(b) Commerce Asset Fund Managers Sdn Bhd, subject to Clause 2.9
2.6 On the Completion Date, BT Funds Management (International) Limited shall
be the registered and beneficial owner free and clear of all Encumbrances
of 25% of the issued shares in Thai Capital Management Co., Limited.
3. STATUTORY ACCOUNTS, ACCOUNTS AND COMPLETION STATEMENT
3.1 The Statutory Accounts have been prepared in accordance with:
(a) the Corporations Law, including:
(i) giving a true and fair view of BTAL's and consolidated entities'
financial position as at the Balance Date and of their
performance for the year ended on that date; and
(ii) complying with accounting standards and the Corporations
Regulations; and
(b) other mandatory professional reporting requirements.
3.2 The Accounts have been prepared in accordance with the Accounting
Principles.
3.3 The Completion Statement will:
(a) be prepared; and
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(b) present fairly the assets and liabilities of the Group and the
Offshore FM Businesses as at the Completion Date,
in accordance with the Accounting Principles.
3.4 The Records taken as whole (but not including the Accounts or Completion
Statement), present fairly the trading transactions, financial and
contractual position, assets and liabilities of the Group Members and the
Business in all material respects.
3.4 The Accounts insofar as they relate to the FM Businesses present fairly, in
all material respects in accordance with the Accounting Principles, the
assets and liabilities of the FM Businesses as at the Balance Date.
3.5 On the Completion Date, the FM Businesses will have no material
liabilities, except as and to the extent accrued or reserved against as
liabilities and provided for in the Completion Statement.
4. REAL PROPERTY
4.1 (REAL PROPERTY) The Real Property comprises all the freehold and leasehold
land and premises owned, used or occupied by any Group Member (except " for
real property held by a Group Member as trustee or custodian on behalf of a
collective investment scheme or otherwise on behalf of others in the
ordinary and usual course of its business). No Group Member has any
freehold or leasehold interest in land except for the Real Property.
4.2 (OCCUPATION) The relevant Group Member has exclusive occupation and quiet
enjoyment of the relevant item of Real Property.
5. EMPLOYEES
5.1 (DISCLOSURE MATERIAL) The information in the Disclosure Material with
respect to:
(a) the position of the officers and employees of each Group Member;
(b) the employment terms (including incentives) of the officers and
employees of each Group Member; and
(c) the period of service of the officers and employees of each Group
Member and accrued long service leave and annual leave entitlements,
is accurate in all material respects as at the date shown in the Disclosure
Material.
5.2 (PLANS AND POLICIES) The Plans and Policies referred to in Clause 4(d) and
the Specific Employee Disclosures, contain the full terms as at the date of
the Disclosure Letter of the severance and redundancy entitlements of all
Employees other than those which arise under statute or are implied by
general law.
5.3 (EQUITY PLANS) All plans under which Employees have, or may have been
provided with shares, other forms of equity, rights of conversion into
equity,
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or rights in substitution therefor have been terminated and all amounts
payable in relation thereto have been paid or will be fully provided for in
the Completion Statement.
5.4 (SPECIFIC EMPLOYEE DISCLOSURES) The Specific Employee Disclosures are
accurate in all material respects.
6. ASSETS
6.1 Upon Completion the Group will own, or have the right (on terms no less
favourable to the Group than the terms applicable as at the date of this
Deed) to use all of the properties and assets which, together with the
assets and services to be provided pursuant to the Shared Services
Agreements, are all of the material properties and assets used to conduct
the FM Businesses as historically conducted.
6.2 All material licences, consents, permits and authorities (public and
private) have been obtained by each of the Group Members to enable it to
carry on the Business in the places and in the manner in which such
Business is now carried on by it and all such licences, consents, permits
and authorities are valid and subsisting.
6.3 The Warrantor does not know of any factor which is likely to prejudice the
continuance or renewal of any license, consent, permission authority or
permit referred to in Warranty 6.2.
6.4 That:
(a) BTC is the registered proprietor in Australia of the registrations of
the Trade Marks (the REGISTRATIONS);
(b) each Registration is valid and subsisting and there is no matter, fact
or circumstance which would render void or voidable nor otherwise
susceptible to removal, the registration of any Registration on any
grounds (including under section 92(4)(a) of the Trade Marks Act 1995
(Cth));
(c) there is no restriction, limitation, outstanding encumbrance or other
matter preventing BTC from assigning any of the Trade Marks and the
Registration to the Assignee (as defined in the Deed of Assignment of
Trade Marks); and
(d) in respect of each Trade Mark, the use of that mark by the Assignee
upon or in relation to the goods or services in respect of which the
mark is registered will not infringe the rights of any other person
and will not give rise to an obligation on the part of the Assignee to
pay compensation or a royalty to any other person.
7. CONDUCT OF BUSINESS
Except for:
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(a) any impacts of either the merger between the Warrantor and BTC or the
announcement by the Warrantor of the intended disposal of the
Business; and
(b) the implementation of the Stewardship Document,
the Business has been conducted in all material respects in the ordinary
and usual course since the Balance Date.
8. DISCLOSURE MATERIAL
The Disclosure Material, taken as a whole, is complete and accurate in all
material respects and includes all the information which a prospective
purchaser of the FM Businesses in the position of the Purchaser would
reasonably require for the purpose of making a decision whether or not to
acquire the FM Businesses. For the purposes of this Warranty, a person in
the position of the Purchaser is to be taken as having taken, in full the
opportunity referred to in Clause 2 of Part III of this Schedule and to
have obtained all professional advice from the Advisers used by the
Purchaser which a prudent purchaser could reasonably be expected to have
sought.
9. LITIGATION AND AUTHORISATIONS
9.1 There is no material litigation against a Group Member which is current,
pending or threatened nor of any circumstance, act or omission which is
likely to give rise to any material litigation against a Group Member
including litigation arising out of any acts or omissions of Group Members
in acting in any capacity in relation to any superannuation trust,
prescribed interest undertaking or managed investment scheme, arising out
of any breach of any client mandates or arising out of any product or
service provided by such Group Member.
9.2 Each Group Member:
(a) holds all necessary Authorisations necessary for the lawful conduct of
its Business; and
(b) has, subject to exemptions or waivers, conducted its Business
materially in accordance with the conditions imposed by its
Authorisations.
10. TRUSTS
10.1 A Group Member is the trustee, manager or single responsible entity (SRE)
of all of the trusts and managed investments schemes listed in Schedule 13
(each a TRUST).
10.2 Each of:
(a) the trust deed of each Trust; and
(b) the supplemental deeds amending those trust deeds; and
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(c) the deeds effecting a retirement or appointment of a trustee, manager
or SRE of those Trusts;
has been validly executed and, to the extent required by law, duly approved
by the Australian Securities and Investments Commission (or its
predecessors or delegates).
10.3 Except as required or contemplated by .MIA Transition, no circumstance has
occurred or is proposed in relation to a Group Member or any Trust that
will or may give rise to the Group Member ceasing to be the trustee,
manager or SRE of the Trust.
10.4 Each Group Member has complied in all material respects with:
(a) all of the applicable provisions included or taken to be included in
the trust deeds of all Trusts; and
(b) the Corporations Law and other applicable laws,
while acting as the trustee, manager or SRE of the Trusts.
10.5 Except as required or contemplated by MIA Transition or as required by the
Listing Rules of the Australian Stock Exchange to approve a transaction
relating to a Trust, no Group Member proposes to hold a meeting of
unitholders of any Trust of which it is trustee, manager or SRE and the
Warrantor is not aware of any proposal to requisition such a meeting.
10.6 The Warrantor does not know of any circumstance giving rise to an existing
or potential loss by a Group Member of its right of indemnity from a
Trust.
11. YEAR 2000 ISSUE
The Warrantor and the Vendors warrant that the Group Members will continue
to carry out the Vendors' Group Year 2000 Issues compliance program as
identified in the Disclosure Material with all reasonable due diligence up
to the Completion Date.
PART II - TAX WARRANTIES
12. TAX WARRANTIES
12.1 (TAX PROVISION AND ACCOUNTS) The Completion Statement contains Tax
Provisions, reserves, accruals or allowances adequate to cover Taxes
payable for or in respect of each Group Member for all periods up to the
Completion Date. For the purposes of this Warranty 12.1, a Tax payable for
or in respect of each Group Member includes Taxes for which the Group
Member becomes liable by reason of its membership or inclusion in any,
consolidated or combined tax group or Taxes for which such Group Member may
have a liability by reason of any tax sharing agreement or other
contractual obligation.
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12.2 (DEDUCTIONS) Each Group Member has deducted all Tax required to be deducted
from any payments made by it. When necessary, the relevant Group Member has
accounted for or remitted on a timely basis that Tax in accordance with
relevant law.
12.3 (PAYMENT OF TAX) All Taxes which have been or were deemed to have been
assessed or imposed on any Group Member, or have been required to be
withheld from any payment made by any Group Member to another person:
(a) which have become due and payable, have been paid by the due date for
payment by that Group Member; and
(b) which are not yet payable but become payable before the Completion
Date, shall be paid by the due date.
12.4 (RETURNS ETC.) All necessary returns:
(a) have been submitted by each Group Member to each relevant Taxation
Authority in respect of Taxes for or in respect of that Group Member
for all periods up to the date of this Deed; and
(b) will continue to be submitted when due in respect of periods after the
date of this Deed until the Completion Date in respect of those later
periods.
12.5 (FRANKING AND CAPITAL) Each Group Member:
(a) maintains and has retained for the period required by law, accurate
records. of franking credits and franking debits (as defined in the
Tax Act) in respect of its current and earlier accounting periods;
(b) has franked to no less than the required franking amount (as provided
for in section 160AQE of the Tax Act) any dividend declared or paid
since the Balance Date;
(c) shall have a Franking Account at 30 June 1999 and at the Completion
Date the balance in which shall not be less than zero; and
(d) will not have a tainted share capital account (as defined in the Tax
Act) as at the Completion Date.
12.6 (INVESTIGATIONS AND DISPUTES) Neither the Warrantor nor any Group Member is
aware that the Australian Commissioner of Taxation or any other Taxation
Authority is at present conducting, or proposing to conduct, any
investigation into all or any part of the tax affairs of any Group Member
and there is no unresolved dispute with any Taxation Authority.
12.7 (GROUP LOSS TRANSFERS) As far as the Warrantor is aware, any loss which has
been transferred to or by any Group Member was validly transferred for the
purposes of section 80G of the 1936 Act or of Division 170 of the 1997 Act
or any corresponding provision or provision to a similar effect under the
applicable law of any foreign jurisdiction.
12.8 (RECORDS) As far as the Warrantor is aware, each Group Member has retained
for the period required by law all records required to be kept pursuant to
any Tax Law.
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12.9 (TAX CLASSIFICATION OF BTIA FOR US FEDERAL INCOME TAX PURPOSES) For US
federal income tax purposes, BTIA is an association taxable as a
corporation.
12.10 (STAMP DUTY) No stamp duty liability will be triggered in respect of
transactions entered into prior to the date of this Deed as a consequence
of the execution of: the Deed; of the other Transaction Documents; of any
instruments entered into under the Deed or the other Transaction
Documents.
12.11 (DEGROUPING) Section 160ZZOA of the 1936 Act would not apply to deem a
disposal of an asset by a Group Member, and section 104475 of the 1997 Act
will not deem a CGT event to happen in relation to a Group Member, as a
result of entry into a Transaction Document by the Purchaser.
12.12 (GROUP MEMBERSHIP) BTIA and the Group Members listed as 100% subsidiaries
of BTIA in Part II of Schedule 2 will be members of the same wholly owned
group as defined in Subdivision 975-W of the 1997 Act at the Completion
Date.
PART III - PURCHASER'S AND THE PURCHASER'S GUARANTOR WARRANTIES
1. POWER AND AUTHORITY
1.1 (POWER AND AUTHORITY) The Purchaser and the Purchaser's Guarantor have the
power and authority to execute and exchange this Deed and perform and
observe all its terms. This Deed has been duly executed by the Purchaser
and the Purchaser's Guarantor and is a legal, valid and binding agreement
of the Purchaser and the Purchaser's Guarantor enforceable against them in
accordance with the terms of this Deed.
1.2 (SOLVENCY) No step has been taken in relation to any of the Purchaser or
Purchaser's Guarantor or their respective Related Bodies Corporate to wind
it up, appoint a controller or administrator, seize or take possession of
any of their assets or make an arrangement, compromise or composition with
any of their creditors.
2. DISCLOSURE MATERIAL
The Purchaser and the Purchaser's Guarantor have been given the
opportunity by the Vendors to review the Disclosure Material, have taken
that opportunity and have independently and without the benefit of any
inducement, representations or warranty (other than the Warranties
provided in Parts I and II of this Schedule) from any member of the
Vendors' Group or the Deutsche Group determined to enter into this Deed.
The Purchaser and the Purchaser's Guarantor have not reviewed the IB
Disclosure Material.
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PART IV - CONTINUING OBLIGATIONS OF PURCHASER
3. OBLIGATION TO NOTIFY
Irrespective of whether a Claim arises, the Purchaser shall notify the
Warrantor in writing of any notice or commencement of any audit or
investigation or exercise of powers under section 263 or 264 of the Tax Act
or dispute with any Taxation Authority in relation to the Tax affairs of a
Group Member, within 3 business days of receipt of such notice or of such
commencement (whichever occurs first), which arises in relation to the
transactions contemplated by the Transaction Documents or any Group Member
in relation to any period up to the end of the tax year in which the
Completion Date occurs.
4. COMPLETION YEAR TAX RETURN
The Purchaser shall give the Vendor the opportunity to review any income
tax return to be filed by any Group Member in respect of the period up to
the end of the Tax Year under the Tax Act in which the Completion Date
occurs at least 15 working days prior to them being filed, and give bona
fide and reasonable consideration to any of the Vendor's comments thereon
and requests in relation thereto, and once filed, provide the Vendor with a
copy of such returns as filed.
5. PRESERVATION
The Purchaser shall not, without the approval of the Vendor (such approval
not to be unreasonably withheld):
(a) amend, or permit the self amendment by the relevant Group Member of,
any tax return lodged by a Group Member prior to the Completion Date;
(b) apply for any binding or non-binding advance opinion, determination or
ruling in respect of any event which occurred prior to or on the
Completion Date;
(c) do any other thing which, apart from the operation of any threshold
under Clause 8.6(g), might reasonably lead to any Claim for breach of
this Deed.
6. OTHER OBLIGATIONS
The Purchaser:
(a) shall not procure or cause the negation or modification of any
election or choice made by, on behalf of, or in respect of a Group
Member such that there is an increase in liability of the consolidated
group of the Vendors' Guarantor for United States Taxes (or any
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decrease in the amount of foreign tax credits of that consolidated
group) in respect of the period up to and including the end of the Tax
Year next ending after the Completion Date;
(b) shall make, at the Completion Date, a joint election with the Vendor's
Guarantor, under Section 338(h)(10) of the Internal Revenue Code, to
treat the sale of BTIA Shares as a sale of the assets of BTIA, which
election shall be irrevocable;
(c) shall make, at the Completion Date, an election under Section 338(g)
of the Internal Revenue Code to treat BTAL and all of its subsidiaries
as having sold their assets for US Tax purposes, which election shall
be irrevocable; and
(d) shall permit the lodgment of Ruling Requests by the Vendors or
Warrantor (and at their cost) on behalf of such Group Members as may
be nominated by them. The Ruling Requests shall be prepared having due
regard to the maintenance of the good name, reputation and
relationship with the Australian Taxation Office of each of the
Purchaser, the Purchaser's Guarantor, the Group Members, the Vendors
and the Warrantor, and in particular, to prevent any actual or
perceived damage to such good name, reputation or relationship flowing
from recent uninformed and inaccurate press coverage of this
transaction. To facilitate the preparation and lodgment of the Ruling
Requests the Purchaser shall grant or procure the grant of access to
the materials and records of such Group Members as shall be necessary
to lodge the Ruling Requests, subject always to the preservation of
the confidentiality of those records to the same degree provided for
in Clause 8.10(b)(viii) of this Deed. The Purchaser shall have a
reasonable opportunity to review and comment promptly upon the Ruling
Requests before they are lodged with the Australian Taxation Office
and in this regard the Vendor or Warrantor will keep the Purchaser
informed of the timing of lodgment of the Ruling Requests and the time
available to the Purchaser to review and comment on the requests.
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SCHEDULE 5
POWER OF ATTORNEY
--------------------------------------------------------------------------------
DEED POLL dated 1999 by:
[*] LIMITED (ACN [*] incorporated in [*] of [*] (the Principal)
RECITES that the Principal has transferred to [*] (ACN [*] (the PURCHASER)
the full beneficial interest in [*] ordinary shares of $[*] each fully paid
(the SHARES) in [*] [Limited] (the COMPANY) of which the Principal is the
registered holder.
APPOINTS
1. APPOINTMENT AND AUTHORITY
In consideration of the Purchaser purchasing the Shares the Principal
appoints each of the directors for the time being of the Purchaser (each an
Attorney) severally as the attorney of the Principal with authority to
exercise all rights attaching to the Shares including, without limitation,
the rights to:
(a) receive notices of and attend and vote at all meetings of the members
of the Company;
(b) consent to short notice and execute all instruments of proxy or other
documents for the purpose of enabling the Purchaser to attend and vote
at any such meeting; and
(c) appoint and remove directors and alternate directors of the Company.
2. RATIFICATION
The Principal will ratify everything done or caused to be done by an
attorney under this Power of Attorney.
3. TERM
This Power of Attorney shall terminate upon the registration of the
Purchaser as the holder of the Shares. It may not be revoked by the
Principal.
EXECUTED as a Deed,
[*] LIMITED )
)
------------------------------- ------------------------------------------
Signature Signature
------------------------------ ------------------------------------------
Print name Print name
------------------------------ ------------------------------------------
Office held Office held
--------------------------------------------------------------------------------
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SHARE SALE DEED & ▇▇▇▇▇▇▇
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SCHEDULE 6
COMPLETION STATEMENT
--------------------------------------------------------------------------------
The Completion Statement shall be in such form as the Vendors' Accountants deem
appropriate for the purpose, but in any event will contain summary schedules as
per the attached templates.
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PAGE 1
97
EXHIBIT 1
EXHIBIT TO SCHEDULE 6 OF THE SHARE SALE DEED
TEMPLATE FOR COMPLETION STATEMENT OF BTAG
BTFM (including BTIB (excluding
Offshore FM Offshore IB
Businesses)(1) Businesses) Surplus Capital BTAG
--------------- --------------- --------------- ----
SCHEDULE 20010 Cash & Due From Banks:
SCHEDULE 20030 IB Deposits With Banks
SCHEDULE 20055 Securities Purchased Under Resale Agreement
SCHEDULE 20070 IB & NIB Trading Account Assets
SCHEDULE 20105 Securities Available For Sale
SCHEDULE 20110 Investment In Consol Sub
SCHEDULE 20130 Loans & Leases Intercompany
SCHEDULE 20131 Gross Loans & Lease Financing
SCHEDULE 20132 Overdrafts
SCHEDULE 20160 Unearned Income
SCHEDULE 20180 Allowance For Credit Loss
SCHEDULE 20210 Premises & Equipment Net
SCHEDULE 20230 Bankers' Acceptances
SCHEDULE 20240 Accrued Int Rec, A/C Rec & Rec On Sec Transactions
SCHEDULE 20270 Goodwill
SCHEDULE 20270 Other Assets
Total Assets
SCHEDULE 20360 Interest Bearing Deposits
SCHEDULE 20390 IB & NIB Trading Account Liabilities
SCHEDULE 20395 Sec Sold Under Repurchase Agreements
SCHEDULE 20400 Other Short Term Borrowings
SCHEDULE 20450 Accrued Expenses & Accrued Interest Payable
SCHEDULE 20470 Other Liabilities
SCHEDULE 20510 Long Term Debt
Total Liabilities
Net Assets 95,500,000 287,300,000 -- 382,800,000
---------- ----------- ---- -----------
Note:
(1) Refer Exhibit 2
06/17/1999 Confidential Page 1 of 4
98
EXHIBIT 2
TEMPLATE FOR COMPLETION STATEMENT OF BTAG
COMPOSITION OF BTFM BALANCE SHEET
BT Funds
BT Funds Management
Management Offshore
within BTAL Group Businesses(1) Total BTFM
----------------- ------------- ----------
SCHEDULE 20010 Cash & Due From Banks:
SCHEDULE 20030 IB Deposits With Banks
SCHEDULE 20055 Securities Purchased Under Resale Agreement
SCHEDULE 20070 IB & NIB Trading Account Assets
SCHEDULE 20105 Securities Available For Sale
SCHEDULE 20110 Investment In Consol Sub
SCHEDULE 20130 Loans & Leases Intercompany
SCHEDULE 20131 Gross Loans & Lease Financing
SCHEDULE 20132 Overdrafts
SCHEDULE 20160 Unearned Income
SCHEDULE 20180 Allowance For Credit Loss
SCHEDULE 20210 Premises & Equipment Net
SCHEDULE 20230 Bankers' Acceptances
SCHEDULE 20240 Accrued Int Rec, A/C Rec & Rec On Sec Transactions
SCHEDULE 20270 Goodwill
SCHEDULE 20270 Other Assets (Exhibit 2.1)
Total Assets
SCHEDULE 20360 Interest Bearing Deposits
SCHEDULE 20390 IB & NIB Trading Account Liabilities
SCHEDULE 20395 Sec Sold Under Repurchase Agreements
SCHEDULE 20400 Other Short Term Borrowings
SCHEDULE 20450 Accrued Expenses & Accrued Interest Payable
SCHEDULE 20470 Other Liabilities (Exhibit 2.1)
SCHEDULE 20510 Long Term Debt
Total Liabilities
Net Assets 95,500,000
----------------- ------------- ----------
Note:
(1) Refer Exhibit 3
06/17/1999 Confidential Page 2 of 4
99
EXHIBIT 2.1
TEMPLATE FOR COMPLETION STATEMENT OF BTAG
COMPOSITION OF BTFM BALANCE SHEET
-----------------
BT Funds
Management
(extracted from
BTAL Statutory
Accounts)
-----------------
Notes:
(1) Other assets include:
Management fees receivable (from BT managed funds)
Related party management fees (Japan and US funds)
Related party receivables
Investment in Malaysian JV
Trade debtors
FITB
Other
------------
============
(2) Other liabilities include:
Employee entitlements (allocated from Corporate)
Accounts payable
Interest received in advance
Futures margin payable (overlay accounts)
Commissions payable
Related party liabilities
Trade creditors
Other liabilities
------------
============
06/17/1999 Confidential Page 3 of 4
100
EXHIBIT 3
TEMPLATE FOR COMPLETION STATEMENT OF BTAG
COMPOSITION OF BTFM OFFSHORE BUSINESSES
BT Portfolio BT Funds BT Funds
BT New Zealand Services (NZ) Management (NZ) Management Asia
Nominees Limited Limited Limited Limited
---------------- ------------- --------------- ---------------
SCHEDULE 20010 Cash & Due From Banks:
SCHEDULE 20030 IB Deposits With Banks
SCHEDULE 20055 Securities Purchased Under Resale Agreement
SCHEDULE 20070 IB & NIB Trading Account Assets
SCHEDULE 20105 Securities Available For Sale
SCHEDULE 20110 Investment In Consol Sub
SCHEDULE 20130 Loans & Leases Intercompany
SCHEDULE 20131 Gross Loans & Lease Financing
SCHEDULE 20132 Overdrafts
SCHEDULE 20160 Unearned Income
SCHEDULE 20180 Allowance For Credit Loss
SCHEDULE 20210 Premises & Equipment Net
SCHEDULE 20230 Bankers' Acceptances
SCHEDULE 20240 Accrued Int Rec, A/C Rec & Rec On Sec Transactions
SCHEDULE 20270 Goodwill
SCHEDULE 20270 Other Assets
Total Assets
SCHEDULE 20360 Interest Bearing Deposits
SCHEDULE 20390 IB & NIB Trading Account Liabilities
SCHEDULE 20395 Sec Sold Under Repurchase Agreements
SCHEDULE 20400 Other Short Term Borrowings
SCHEDULE 20450 Accrued Expenses & Accrued Interest Payable
SCHEDULE 20470 Other Liabilities
SCHEDULE 20510 Long Term Debt
Total Liabilities
Net Assets
Notes:
(1) Other assets include:
Trade debtors
Related party receivables
FITB
Other receivables
---------------- ------------- --------------- ---------------
(2) Other liabilities include:
Trade creditors
Related party liabilities
Provision for employee entitlements
Other liabilities
---------------- ------------- --------------- ---------------
BT Funds 25% Share Thai Offshore FM BT Funds
Management Capital business (Ireland), Management
(Singapore) Management Co Offshore FM Offshore
Limited Ltd business (UK) Businesses
----------- ------------- ------------------ ----------
SCHEDULE 20010 Cash & Due From Banks:
SCHEDULE 20030 IB Deposits With Banks
SCHEDULE 20055 Securities Purchased Under Resale Agreement
SCHEDULE 20070 IB & NIB Trading Account Assets
SCHEDULE 20105 Securities Available For Sale
SCHEDULE 20110 Investment In Consol Sub
SCHEDULE 20130 Loans & Leases Intercompany
SCHEDULE 20131 Gross Loans & Lease Financing
SCHEDULE 20132 Overdrafts
SCHEDULE 20160 Unearned Income
SCHEDULE 20180 Allowance For Credit Loss
SCHEDULE 20210 Premises & Equipment Net
SCHEDULE 20230 Bankers' Acceptances
SCHEDULE 20240 Accrued Int Rec, A/C Rec & Rec On Sec Transactions
SCHEDULE 20270 Goodwill
SCHEDULE 20270 Other Assets
Total Assets
SCHEDULE 20360 Interest Bearing Deposits
SCHEDULE 20390 IB & NIB Trading Account Liabilities
SCHEDULE 20395 Sec Sold Under Repurchase Agreements
SCHEDULE 20400 Other Short Term Borrowings
SCHEDULE 20450 Accrued Expenses & Accrued Interest Payable
SCHEDULE 20470 Other Liabilities
SCHEDULE 20510 Long Term Debt
Total Liabilities
Net Assets
Notes:
(1) Other assets include:
Trade debtors
Related party receivables
FITB
Other receivables
----------- ------------- ------------------ ----------
(2) Other liabilities include:
Trade creditors
Related party liabilities
Provision for employee entitlements
Other liabilities
----------- ------------- ------------------ ----------
06/17/1999 Confidential Page 4 of 4
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SHARE SALE DEED & ▇▇▇▇▇▇▇
SCHEDULE 7
ACCOUNTING PRINCIPLES
BANKERS TRUST AUSTRALIA GROUP
ACCOUNTING PRINCIPLES
AND BASIS OF PREPARATION OF THE ACCOUNTS
AND THE COMPLETION STATEMENT
1. PREPARATION OF ACCOUNTS AND COMPLETION STATEMENT
The Accounts have been prepared to represent the aggregate balance sheet
position of the Group and the Offshore FM Businesses. In preparing the Accounts,
information has been extracted from the audited statutory accounts and general
ledgers of Group Members and other entities involved in carrying on the Business
as at 31 December 1998.
In respect of legal entities which form part of the Group, the trial balances
representing the legal entity (which form the basis of the audited accounts of
the entity) have been used in preparing the Accounts. Where the businesses being
sold represent management units within legal entities which are not part of the
Group, then the trial balances included in the Accounts for these businesses
have been derived from profit centre trial balances extracted from BTC's
consolidation system, IDB. The profit centre to be extracted is 213021 (BTFM
Int. Europe).
2. ACCOUNTING PRINCIPLES APPLICABLE TO THE ACCOUNTS AND THE COMPLETION
STATEMENT
The Accounts have been and the Completion Statement will be drawn up in
accordance with the detailed accounting procedures applied in the preparation of
the Statutory Accounts and the accounts of the other entities which conduct the
Business as set forth in the Disclosure Material and in accordance with the
accounting principles adopted in preparing the trial balances for each of those
entities and businesses subject to the Share Sale Deed. In all cases the
underlying principles are those considered to be Generally Accepted Accounting
Principles in Australia (GAAP), consistent with those applied in preparing the
most recent statutory accounts of the relevant legal entities. Where a company
is wholly owned by Bankers Trust Australia Limited (BTAL) its accounts are
prepared on the same basis as BTAL accounts.
Any balances not recorded in Australian dollars will be translated into the
Australian dollar equivalent at the foreign exchange rate prevailing as at the
close of business in Sydney on the balance date in each case.
The following specific adjustments have (on a tax free basis) been made in
preparing the Accounts, and will be made in preparing the Completion Statement,
being a divergence from the generally accepted accounting principles applied in
preparing
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the most recent financial statements of the relevant entities. In preparing the
Completion Statement, the adjustments will be tax effected where appropriate on
the basis as set out in 3.2 below.
2.1 LIFE COMPANY ACCOUNTING
The available surplus in BT Life Statutory Funds recognised in the
Completion Statement shall be determined on a basis consistent with that
used to determine the available surplus in the Accounts.
2.2 CHANGE OF CONTROL PAYMENTS
When the 1998 statutory accounts were drawn up, the certainty of the
merger of Deutsche Bank AG and Bankers Trust Corporation was not
sufficient to require the raising of an accrual to reflect the Group's
liability to employees under various outstanding deferred compensation
schemes. Given that the merger has been effected prior to the date of
the Share Sale Deed, the Accounts have been, and the Completion
Statement will be, adjusted to reflect the totality of the Group's
liability to employees in respect of deferred compensation schemes.
The 1999 bonus pool (an element of which is due upon Change of Control),
will be accrued for on a straight line basis in the Group's accounts
during the course of 1999 and, accordingly, the appropriate pro-rata
accrual or expense will be recognised in the Completion Statement. The
remaining bonus pool attributable to the balance of 1999 beyond the
Completion Date will not be recognised in the Completion Statement but
will be subsequently accrued over the remainder of 1999 after the
Completion Date.
2.3 EMPLOYEE ENTITLEMENTS
The Group has offered certain retention incentives to key employees.
These incentives, which are in addition to normal bonus participation
and are referred to in staff retention letters as having a bullet
vesting at future dates, are not included as an adjustment to the
Accounts and no liability will be recognised in the Completion Statement
for these retention incentives.
Employee incentives in the form of guaranteed bonus payments, where the
guarantee is expected to be a normal bonus payment for conducting
current employment duties, are to be expensed over the period to which
the guarantee relates.
2.4 DEFERRED TAXATION BALANCES
The recognition of Future Income Tax Benefits (FITB's) and deferred tax
liabilities are accounted for in accordance with the year end statutory
accounts on the basis of an overall net deferred tax liability. In the
Completion Statement, ▇▇▇▇'s will in the first instance be fully
recognised by netting against deferred tax liabilities, such netting to
be within a legal entity basis, and thereafter FITB's will be recognised
in accordance with GAAP.
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2.5 GENERAL PROVISION
The Statutory Accounts included a general provision of $38 million. No
general provision has been recognised in the Accounts and no general
provision will be recognised in the Completion Statement.
3. ADDITIONAL ADJUSTMENTS TO BE MADE IN PREPARING THE COMPLETION STATEMENT
The following items are not included as adjustments to the Accounts. It
is intended that these items will be reflected in the Completion
Statement:
3.1 YEAR-TO-DATE RESULTS
The Net Assets in the Completion Statement will incorporate the net
profit after tax of the Group (calculated under GAAP) for the period
from 1 January 1999 to the Completion Date.
3.2 INCOME TAX
For the purpose of the Completion Statement, all current and deferred
income tax balances will be calculated as if the income tax laws
applicable at the date of signing this Share Sale Deed applied
irrespective of any change of tax laws occurring between the signing
date and the Completion Date.
3.3 REDUNDANCY PROVISIONS
A provision for redundancy costs will only be made or recognised in the
Completion Statement to the extent that the Warrantor, the Vendors or
BTAG, at the request of the Warrantor or Vendors, has:
(a) terminated an Employee without cause within the meaning of the
Plans (as defined in Clause 4(d)); or
(b) terminated an Employee's employment on the ground of Redundancy
within the meaning of the Policies (as defined in Clause 4(d)) or
the BTAL Redundancy Policy for Commission Employees,
but only to the extent that any relevant payments have not been made
before the Completion Date and excluding the instances where such action
has been taken at the request of or with the consent of the Purchaser to
accommodate the Purchaser's plans for the Business,
3.4 DIVIDEND PAYMENTS
It is currently anticipated that, prior to the Completion Date, the
Vendors will require dividend payments to be paid or declared by the
Group. Any such dividends will be reflected in the Net Assets of the
Group in the Completion Statement.
3.5 CAPITAL INJECTION
The Net Assets in the Completion Statement will incorporate any capital
injection made prior to the Completion Date.
3.6 NET ASSETS OF FM BUSINESSES
Page 4
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SHARE SALE DEED & ▇▇▇▇▇▇▇
In the preparation of the Completion Statement, the short term
borrowings of BTAL which are allocated to the FM Businesses as at the
Completion Date shall be such that the Net Assets of the FM Businesses
as at the Completion Date will be $95.5 million.
3.7 SALE OF IB BUSINESSES
In the preparation of the Completion Statement, there shall be
disregarded:
(a) the sale of all or any part of the IB Businesses, wherever
occurring; and
(b) entry into or performance of the IB Deed or any agreement entered
into pursuant to the IB Deed.
Page 5
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SHARE SALE DEED & ▇▇▇▇▇▇▇
SCHEDULE 8
AGREEMENTS TO BE CANCELLED AT COMPLETION
1. Service agreement between BTI and BTAL dated 1 January 1997 relating to
the Metals and Mining business and London debt markets desk.
2. Service agreements between BTC and BTAL dated 23 January 1998 and 25
February 1998 relating to the Soft Commodities business.
3. Service agreement between BTI and BTAL dated 2 September 1998 relating
to the London SYCOM terminal.
4. Service agreement between BT ▇▇▇▇. ▇▇▇▇▇ Inc and BT ▇▇▇▇. ▇▇▇▇▇
Australia Limited (BTABAL) dated 11 January 1999 relating to the New
York equities desk.
5. Service agreement (undated) between BTABAL and BTC, Singapore Branch
relating to the Singapore equities desk.
6. Service agreement between BTC and BTAL dated 17 February 1995 relating
to FX business.
7. Indemnification agreement between BTC and BTAL dated 1 June 1992
relating to BTAL's exposure to non-bank, non-governmental
counterparties.
8. Standby facility letter dated 30 June 1998 from BTC to BTAL providing
standby facility to BTAL.
9. Agency agreement between BTI and BTAL dated 29 April 1988 relating to
dealings in Australian fixed interest securities.
10. Service agreement between BTC and BTAL dated 18 December 1996 relating
to the management of the Hong Kong swaps book.
11. Service agreement between BTC and BTAL dated 25 October 1996.
12. Letter of credit from BTAL to Sydney Futures Exchange Clearing House Pty
Limited on account of BT Futures New Zealand Limited dated 26 November
1998.
Page 1
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▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
SCHEDULE 9
RELATED PARTY DEBT TO BE RE-FINANCED AT COMPLETION
The $800 million facility provided by BTC to BTAL. The parties acknowledge that
BTC shall set off or apply the corresponding amount on deposit with BTC from
BTAL in full and final settlement of the amount owing to BTC by BTAL under this
facility.
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SHARE SALE DEED ▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇▇▇▇
SCHEDULE 10
GROUP MEMBERS TO CHANGE NAMES
1. BT Investments (Australia) Limited
2. BT IB Holdings Pty Limited
3. Bankers Trust Australia Limited
4. BT Alex. Brown Australia Limited
5. BT Australia (H.K.) Financial Services Limited
6. BT Australia (HK) Limited
7. BT Pacific Management Limited
8. BT Australia Securities Limited
9. BT Capital Markets Nominees Pty Limited
10. BT Corporate Finance Limited
11. BT Finance Pty Limited
12. BT IB Limited
13. BT Infrastructure Pty Limited
14. BT Lease Management Pty Limited
15. BT Management Services Pty Limited
16. BT Properties Pty Limited
17. BT Risk Management Advisory Pty Limited
18. BT Science Holdings Pty Limited
19. BT Computer Leasing Pty Limited
20. BT Project Finance Pty Limited
21. BT R&D No. 1 Pty Limited
22. BT R&D No. 7 Pty Limited
23. BT Securitisation Management Pty Limited
24. BT Structured Equities Pty Limited
25. BT Technology Pty Limited
26. BT Australia Corporate Services Pty Limited
27. BT Nominees Limited
28. BT Funds Management Asia Limited
29. BT Funds Management (Singapore) Limited
Page 1
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▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
Any other Group Member or any entity licensed by a Group Member which has as
part of its name an Excluded Name.
Page 2
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▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
SCHEDULE 11
BUSINESS NAMES TO BE RELINQUISHED
KEY:
+ BTAB = BT Alex. Brown Australia Limited
+ BTCF = BT Corporate Finance Limited
BUSINESS BUSINESS REGISTRATION RENEWAL DATE REGISTERED
NAMES NAME ACT NO. PROPRIETOR
Bankers Trust NSW U9289638 5/8/2001 BTAL
ACT F00089272 29/5/2001 BTAL
VIC 1386302A 11/6/2001 BTAL
SA 0429278K 5/6/2001 BTAL
WA 0237654A 11/6/2001 BTAL
QLD BN6913787 10/6/1999 BTAL
Bankers Trust NSW T9531527 2/4/2000 BTAL
Australia
Bankers Trust NSW T6482527 16/10/1999 BTAL
Research ACT F00089776 17/7/2001 BTAL
VIC B1398956D 21/8/2001 BTAL
SA 0430759M 8/7/2001 BTAL
WA 0240590H 15/7/2001 BTAL
QLD BN7009458 27/8/1999 BTAL
BT ▇▇▇▇. ▇▇▇▇▇ NSW U7814026 28/5/2001 BTAL/BTAB
ACT F00089273 29/5/2001 BTAL/BTAB
VIC 1384733U l/6/2001 BTAL/BTAB
SA 0428956W 29/5/2001 BTAL/BTAB
WA 0236973N 3/6/2001 BTAL/BTAB
QLD BN6905160 2/6/1999 BTAL/BTAB
BT ▇▇▇▇. ▇▇▇▇▇ NSW U8339414 23/6/2001 BTAB
Research ACT F00089563 26/6/2001 BTAB
VIC B1394215V 30/7/2001 BTAB
Page 1
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▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
BUSINESS BUSINESS REGISTRATION RENEWAL DATE REGISTERED
NAMES NAME ACT NO. PROPRIETOR
SA 0430407W l/7/2001 BTAB
WA 0238874A 25/6/2001 BTAB
QLD BN6936660 26/6/1999 BTAB
▇▇ ▇▇▇▇▇▇▇▇▇▇ NSW U7814418 28/05/2O0l BTAL/BTCF
ACT F00089274 29/05/2001 BTAL/BTCF
VIC 1384736A 01/06/2001 BTAL/BTCF
SA 0428957R 29/05/2001 BTAL/BTCF
WA 0236971J 03/06/2001 BTAL/BTCF
QLD BN6904683 29/05/1999 BTAL/BTCF
BT Capital NSW U3929320 3/11/2000 BTAL
Partners, ACT F00087153 10/11/2000 BTAL
Australia VIC 1358076V 19/11/2000 BTAL
SA 0421427P 6/ll/2000 BTAL
WA 0223053Y 25/11/2000 BTAL
NT 68866B 23/2/2001 BTAL
QLD BN6704797 11/11/1999 BTAL
BTAL
BT Instalments NSW T9746547 14/4/2000 BTAL
ACT F00089564 26/6/2001 BTAL
VIC B1394218B 30/7/2001 BTAL
SA 0430406A l/7/2001 BTAL
WA 0238876E 25/6/2001 BTAL
QLD BN6936647 26/6/1999 BTAL
BT Instalment NSW U0587830 27/5/2000 BTAL
Warrants ACT F00089565 26/6/2001 BTAL
VIC B1394222S 30/7/2001 BTAL
SA 0430403P l/7/2001 BTAL
WA 0238873Y 25/6/2001 BTAL
QLD BN6936623 26/6/1999 BTAL
BT Investor NSW T29805332 23/4/1999 BTAB
Services
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▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
BUSINESS BUSINESS REGISTRATION RENEWAL DATE REGISTERED
NAMES NAME ACT NO. PROPRIETOR
BT Private NSW UO854248 10/6/2000 BTAB
Stockbroking ACT F00089567 26/6/2001 BTAB
VIC B1394228E 30/7/2001 BTAB
SA 0430402T l/7/2001 BTAB
WA 0238903F 25/6/2001 BTAB
QLD ▇▇▇▇▇▇▇▇▇ 26/6/1999 BTAB
BT Stockwatch NSW T3925731 07/06/1999 BTAB
BT Warrants NSW T3916144 6/6/1999 BTAL
ACT F00089568 26/6/2001 BTAL
VIC B1394229G 30/7/2001 BTAL
SA 0430408R l/7/2001 BTAL
WA 0238906M 25/6/2001 BTAL
QLD BN6936611 26/6/1999 BTAL
Page 3
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SHARE SALE DEED ▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 12
REAL PROPERTY
--------------------------------------------------------------------------------
PART I - LEASEHOLD
PROPERTY LEASED LESSOR LESSEE COMMENCING DATE TERMINATING DATE
----------------------------------------------------------------------------------------------------------------------------------
Chifley Tower Mid Sydney Pry Limited BTAL 23 March 1993 13 March 2006
(Level 2-10,13-16)
Level 13,14,15 & 16 Perpetual Trustee Company Limited BTAL 13 October 1997 12 October 2002
Colonial Centre, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Levels 5 & 6 Advance Bank Australia Limited BTAL 1 March 1995 30 June 2006
▇▇ & ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇
Ground Floor, The University of Sydney BTAL 6 September 1993 5 September 1999
Challis House, ▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Ground Floor, The The Colonial Mutual Life BTAL 8 September 1998 7 September 2003
Colonial Mutual Assurance Society Limited
Building, ▇▇ ▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇
Page 1
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--------------------------------------------------------------------------------
SCHEDULE 12
REAL PROPERTY
--------------------------------------------------------------------------------
PART I - LEASEHOLD
PROPERTY LEASED LESSOR LESSEE COMMENCING DATE TERMINATING DATE
------------------------------------------------------------------------------------------------------------------------------
Level 23 & 24,367 Commonwealth Bank of Australia BTAL 7 October 1991 31 March ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
The Land and the ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ BTAL 14 July 1995 13 July 2005
building at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, Brisbane
formerly known as the
Piccadilly Arcade
Level 3, 178 Pacific Wylde Investments Pty. Limited BTAL 1 May 1995 29 April 2000
HWY, St Leonards
Suite 1, Level 3, BTAL Sydney Futures 1 May 1995 29 April 2000
178 Pacific HWY, Exchange
St Leonards
Page 2
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& ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 12
REAL PROPERTY
--------------------------------------------------------------------------------
PART I - LEASEHOLD
PROPERTY LEASED LESSOR LESSEE COMMENCING DATE TERMINATING DATE
------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Superannuation BTAL 1 June 1991 31 May 2001
Melbourne, Ground (Australia) Pty Ltd
Floor
Level 16, 215 Adelaide BT Custodial Services BTAL Month to Month Month to Month
Street, Brisbane
Laffer Drive Industrial and Commercial BTAL 26 May 1997 Maximum term of
Bedford Park Premises Corporation of Adelaide (Note: see Part 11 years.
SA 5042 II of this
Schedule 12) BTAL has agreed to
purchase the land and
buildings over a
maximum term of 11
years following
completion of
construction. BTAL
has an option to
repay early.
Page 3
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--------------------------------------------------------------------------------
SCHEDULE 12
REAL PROPERTY
--------------------------------------------------------------------------------
PART I - LEASEHOLD
PROPERTY LEASED LESSOR LESSEE COMMENCING DATE TERMINATING DATE
------------------------------------------------------------------------------------------------------------------------------
75 Hindmarsh Square Underlessor Underlessee 1 July 1998 20 May 2000
Adelaide 5000 Price Waterhouse Properties BTAL
Limited
Headlessor
Mancorp Investments Pty Ltd
Ground and first Perpetual Trustee Company Ltd BTAL 1 May 1994 30 April 2001
Floors plaza building & Kent Street Pty Ltd
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Suntec City Development Pte Ltd Bankers Trust Funds 15 December 1997 14 December 2000
#23-03, Suntec Tower Management (with an option for
Four Singapore (Singapore) Limited one further three
year term)
Suite 5 2nd Floor Regent Building Limited BT Funds 1 January 1999 31 March 2001 (with
Regent Building, 33 Management (NZ) an option for a
Cathedral Square, Ltd further two year term)
Christchurch
Page 4
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& ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 12
REAL PROPERTY
--------------------------------------------------------------------------------
PART I - LEASEHOLD
PROPERTY LEASED LESSOR LESSEE COMMENCING DATE TERMINATING DATE
------------------------------------------------------------------------------------------------------------------------------
Level 7, Barclays The New Zealand Guardian National Registry 1 November 1997 31 October 1999
House, 70 Shortland Trust Company Limited Services Pty Limited
Street, Auckland
Page 5
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& ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
FREEHOLD
PART II - FREEHOLD
DESCRIPTION/ ACQUISITION DATE PURCHASE PRICE TOTAL AREA
LOCATION M2
-----------------------------------------------------------------------------------------------------------------------------------
Properties Owned by BTAL
Laffer Drive 1.7.97 Balance of purchase price to be 6,670m(2)
▇▇▇▇ ▇▇▇▇▇▇ Ave paid on 30 June 1999 Includes Childcare
Bedford Park, SA 5042 and plant room
Page 6
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▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 13
TRUSTS
1. DOMESTIC AS AT 15 JUNE 1999
1.1 WHOLESALE
ROLE TRUST/FUNDS
-------------------------------------------------------------------------------------------
BT Custodial Services Pty Limited ("BTCS") - BT Asian Growth Fund
- Trustee
BT Funds Management Limited ("BTFM") -
Manager
BTFM - Trustee & Manager BT Australia Charities Trust
BTCS - Trustee BT Australian Bond Fund
BTFM - Manager
BTCS - Trustee BT Australian Corporate Securities Fund
BTFM - Manager
BTCS - Trustee BT Australian Equity Fund
BTFM - Manager
BTFM - Trustee & Manager BT Australian Small Companies Fund
BTCS - Trustee BT Emerging Markets Fund
BTFM - Manager
BTCS - Trustee BT Exempt Retirement Fund
BTFM - Manager
BTCS - Trustee BT Exempt Stable Capital Fund
BTFM - Manager
BTCS - Trustee BT Global Small Companies Fund
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▇▇▇▇▇ ▇▇▇▇▇
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ROLE TRUST/FUNDS
----------------------------------------------------------------------------------
BTFM - Manager
BTCS - Trustee BT Hedged International Bond Fund
BTFM - Manager
BTCS - Trustee BT Indexed Bond Fund
BTFM - Manager
BTCS - Trustee BT Interactive Income Fund
BTFM - Manager
BTCS - Trustee BT Intermediate Bond Fund
BTFM - Manager
BTCS - Trustee BT International Bond Fund
BTFM - Manager
BTCS - Trustee BT International Equity Fund
BTFM - Manager
BTCS - Trustee BT Pan Indexed Bond Fund
BTFM - Manager
BTCS - Trustee BT Pan Intermediate Bond Fund
BTFM - Manager
BTCS - Trustee BT Pan Latin American Fund
BTFM - Manager
BTCS - Trustee BT Pan Stable Capital Fund
BTFM - Manager
Buttonwood Nominees Pty Limited
appointed as custodian for
the business of
Page 2
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SHARE SALE DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
conducting securities borrowing.
Performance of custodian function
guaranteed by BTAL.
BTCS -- Trustee BT Property Investment Fund
BTFM -- Manager
BTFM -- Manager BT Financial Markets Trust Deed
BTCS -- Trustee BT Money Market Trust
BT Cash Plus Fund
BT Finance & Investments Pty Limited -- BTF&I Cash Management Trusts
Trustee
BTF&I Pendal Cash Management Fund
1.2 RETAIL
ROLE TRUST/FUNDS
BTFM -- Responsible Entity BT Select Bond Trust
BTCS -- Custodian -- Australasian Bond Fund
-- Global Bond Fund
BTFM -- Responsible Entity BT Split Trust
BTCS -- Custodian BT Split Growth Fund
BT Split Income Fund
BTFM -- Responsible Entity BT Wholesale Fund
BTCS -- Custodian -- BT Wholesale Managed (NTP) Fund
-- BT Wholesale Conservative
Outlook (NTP) Fund
BT Wholesale Asian Share Fund
BT Wholesale Australian Share Fund
-- BT Wholesale International Share
Fund
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
-- BT Wholesale Property Securities
Fund
BT Wholesale Future Goals Fund
BT Wholesale Split Growth Fund
BT Wholesale European Share Fund
BT Wholesale American Share Fund
BT Wholesale Diversified Fixed
Interest Fund
BTFM -- Manager BT Inter-Fund Trust
Australian Fixed Interest Fund
Eastern European Fund
BTFM -- Responsible Entity BT Cash Management Trust
BTCS -- Custodian
BTFM -- Responsible Entity BT Lifetime Trust
BTCS -- Custodian BT Balanced Returns Fund
BT Future Bonds Fund
BT Income Plus Fund
BT Monthly Income Fund
BT Balanced Deeming Fund
BTFM -- Manager BT Private Investment Fund
-- BT Private Investment
International Fund
-- BT Private Investment Asset
Selection Fund
-- BT Private Investment
Emerging Markets Fund
-- BT Private Investment
Australian Share Fund
BTFM -- Responsible Entity BT Select Markets Trust
--------------------------------------------------------------------------------
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& ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
--------------------------------------------------------------------------------
BTCS - Custodian BT Equity Imputation Fund
BT American Growth Fund
BT European Growth Fund
BT Pacific Basin Fund
BT International Fund
BT Global Energy and Resources Fund
BT Global Bond Fund
BT South Korean Fund
BT Australian Bond Fund
BT Property Securities Fund
--------------------------------------------------------------------------------
Parties to the Deed are BT Securities The 1990 FFC Film Fund - 07.05.90
Limited and Permanent Trustee Company
Limited
--------------------------------------------------------------------------------
Parties to the Deed are BT Securities The Vietnam Film Fund
Limited, Rycop Pty Limited, Permanent
Trustee Nominees (Canberra) Limited and
Permanent Trustee Company Limited
--------------------------------------------------------------------------------
Parties to the Deed are BT Securities Dead Calm Film Fund
Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Productions Pty
Limited, Permanent Trustee Nominees
(Canberra) Limited and Permanent Trustee
Company Limited
--------------------------------------------------------------------------------
BTFM - Manager BT Infrastructure Funds
--------------------------------------------------------------------------------
BTFM - Manager BT Airport Sub-trust
--------------------------------------------------------------------------------
1.3 SUPERANNUATION & LIFE
--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
--------------------------------------------------------------------------------
BTFM - Manager & Trustee BT Ansett Pooled Superannuation
BTCS - Custodian Trust (formerly The BTA Ansett
BT Portfolio Services Limited ("BTPS") Pooled Superannuation Trust)
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
provides the administrative functions for (Classification -- PST --
BTFM under a formal agreement. Wholesale)
BT Tactical Asset Management Pty Limited BT Asset Allocation Trust
("BTTAM") -- Manager & Trustee
(Classification -- PST --
Wholesale)
BTFM is appointed to manage a portfolio
of physical assets, cash and derivatives
corresponding with the benchmark of the
Trust's portfolio under an individually
managed client agreement.
BTTAM -- Manager & Trustee BT Asset Allocation Passive Sector
Trust
BTFM -- Manager (Australian Equity)
BTCo -- Manager (International Equity
and Bond Exposure)
BTFM -- Manager & Trustee BT Choices Pooled Superannuation
Trust
-- Australian Equities Portfolio
-- International Equities Portfolio
-- Property Securities
Australian Bonds
International Bonds
Capital Secure Portfolio
Capital Stable Portfolio
Balanced
BTFM -- Manager & Trustee BT Global Small Companies Pooled
Superannuation Trust
BTCS -- Custodian
BTFM -- Manager & Trustee BT Pan International Equity
(Balanced)
Pooled Superannuation Trust
BTCS -- Custodian
BTFM -- Manager & Trustee BT Retirement Fund
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
--------------------------------------------------------------------------------
BTCS -- Custodian
BTFM -- Manager & Trustee BT Select
BTCS -- Custodian -- Australian Equity Portfolio
-- International Equity Portfolio
-- Property Securities Portfolio
-- Australian Bond Portfolio
-- Stable Capital Portfolio
-- Balanced Portfolio
Diversified Fixed Interest Portfolio
BTAP/BTAP3
BTFM -- Manager & Trustee BT Stable Capital Fund
BTCS -- Custodian
BTFM -- Manager & Trustee BT Stable Growth Fund
BTCS -- Custodian
BTFM -- Manager & Trustee BT Conservative Outlook Fund
Tax Paid Portfolio
Pension Fund Portfolio
BTFM -- Trustee BT Lifetime Super Employer Plan ("ESF")
-- Cash Portfolio
-- Conservative Outlook Portfolio
Future Goals Portfolio
-- Managed Portfolio
-- Australasian Bond Portfolio
-- Global Bond Portfolio
-- Australian Share Portfolio
-- International Share Portfolio
--------------------------------------------------------------------------------
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SHARE SALE DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
-- Property Securities Portfolio
-- Member Protected Portfolio (for
small balances)
External Managed -- Managed
Portfolio
External Managed -- Conservative
Portfolio
External Managed -- Australian
Share Portfolio
External Managed -- International
Share Portfolio
BTFM -- Trustee BT Fixed Rate Pension (FRP)
-- 2 Year Fixed Rate Option
-- 3 Year Fixed Rate Option
BTFM -- Trustee BT Fixed Rate Rollover Fund
2 Year Fixed Rate Option
3 Year Fixed Rate Option
BTFM -- Manager & Trustee BT Lifetime Super Personal Plan
BTCS -- Custodian under formal -- Managed Portfolio
agreement
BT Custodians Limited -- Sub-Custodian Future Goals Portfolio
under formal agreement
-- Conservative Outlook Portfolio
-- Property Securities Portfolio
-- Cash Portfolio
-- Australasian Bond Portfolio
-- Global Bond Portfolio
-- Australian Share Portfolio
-- International Share Portfolio
BTFM -- Manager & Trustee BT Managed Fund
Tax Paid Portfolio
Pension Fund Portfolio
--------------------------------------------------------------------------------
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SHARE SALE DEED ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
BTFM -- Trustee BT Retirement Selection --
BT Retirement Pension Plan
Personal Superannuation Plan
-- Cash Portfolio
-- Conservative Outlook Portfolio
Future Goals Portfolio
-- Managed Portfolio
-- Australasian Bond Portfolio
-- Global Bond Portfolio
-- Australian Share Portfolio
-- International Share Portfolio
-- Property Securities Portfolio
BTFM -- Manager & Trustee BT Specialist PST
-- Australian Share Portfolio
-- International Share Portfolio
BTFM -- Manager & Trustee BT Super Trust
Conservative Outlook Fund
Investment Fund
BTTAM -- Trustee SuperWrap
BTCS -- Custodian Conservative Outlook Fund
Investment Fund
Bankers Trust Life Limited -- Issuer Personal Super Plan Policy
of the life policy
Bankers Trust Life Limited is the Employer Superannuation Policy
issuer of the life Policy
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
Bankers Trust Life Limited is the Retirement Pension Plan Policy
issuer of the life Policy
Bankers Trust Life Limited is the Bankers Trust Life Wholesale Funds
issuer of the life Policy Management Policy
-- Cash Portfolio
-- Capital Stable Portfolio
-- Managed Portfolio
Bankers Trust Life Limited is the BT Investment Management Policy
issuer of the life Policy
Bankers Trust Life Limited is the BT Fixed Rate Pension Policy
issuer of the life policy
-- 2 Year Fixed Rate Option
-- 3 Year Fixed Rate Option
Bankers Trust Life Limited is the BT Complying Income Plan
issuer of the life policy
Fixed return option
CPI linked option
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
2. INTERNATIONAL -- AS AT 15 JUNE 1999
2.1 NEW ZEALAND
ROLE TRUST/FUNDS
BT Funds Management (NZ) Limited -- BT New Zealand Investment Selection
Manager (Retail Unit Trust)
-- Managed Growth Fund
-- Income Plus Fund
-- International Share Fund
-- New Zealand Share Fund
-- Australian Share Fund
-- Pacific Basin Share Fund
-- Property Fund
-- Global Bond Fund
BT Funds Management (NZ) Limited -- BT Private Selection (Mezzanine
Manager Unit Trust)
-- Managed Growth Fund
-- International Share Fund
-- New Zealand Share Fund
-- European Share Fund
-- Asian Share Fund
-- Global Bond Fund
-- New Zealand Bond Fund
-- Property Fund
-- Cash Fund
BT Funds Management (NZ) Limited -- BT Lifetime Plan (Retail
Manager and Trustee Superannuation)
-- Managed Growth Fund
-- Income Plus Fund
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
-- International Share Fund
-- New Zealand Share Fund
-- Pacific Basin Share Fund
-- New Zealand Bond Fund
-- Global Bond Fund
-- Cash Deposit Fund
BT Funds Management (NZ) Limited -- BT New Zealand Investment Series
Manager and Trustee (Wholesale Superannuation)
-- Balanced Fund
-- New Zealand Share Fund
-- International Share Fund
-- New Zealand Bond Fund
-- Global Bond Fund
-- Property Fund
-- Cash Fund
2.2 DUBLIN
ROLE TRUST/FUNDS
BT Funds Management (International) BTIIS
Limited -- investment adviser.
-- Asian Equity Fund
-- European Equity Fund
-- International Equity Fund
-- Japanese Equity Fund
-- American Equity Fund
-- Emerging Markets Equity Fund
-- Global Smaller Companies Fund
BTGAF
-- Latin American Equity Fund
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
2.3 SINGAPORE
ROLE TRUST/FUNDS
BT Funds Management (Singapore) BT Select Investment Series
Limited -- Manager
Global Equity Fund
--------------------------------------------------------------------------------
Page 13
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--------------------------------------------------------------------------------
3. PROPERTY -- AS AT 15 JUNE 1999
3.1 LISTED PROPERTY TRUSTS
ROLE TRUST/FUNDS
BTFM -- Manager BT Office Trust
BT Office Sub-trusts:
BTFM -- Manager Grosvenor Sub-Property Trust
BTFM -- Manager Macquarie Street Trust
(Project Ben Pty Ltd is the current
trustee -- to be transferred from
PTAL to BTFM on MIA transition)
BTFM -- Manager Macquarie Street Sub-Trust
(Northern Site Pty Ltd is the current
trustee -- to be transferred from
PTAL to BTFM on MIA transition)
BTFM -- Manager ▇▇▇▇▇▇ Street Trust
(Project Ben Pty Ltd is the current
trustee -- to be transferred from
PTAL to BTFM on MIA transition)
BTFM -- Manager ▇▇▇▇▇▇ Street Sub-trust
(Southern Site Pty Ltd is the current
trustee -- to be transferred from
PTAL to BTFM on MIA transition)
BTFM -- Manager BT Sydney Development Trust
(Perpetual Trustee is the current
trustee)
BTFM -- Manager BT Sydney Development Sub-trust
BTFM -- Manager BT Property Trust
BT Property Sub-trusts:
BTFM -- Manager Marketown Holdings Trust
(Project Marketown Pty Ltd is the
current trustee -- to be transferred
from PTAL to BTFM on MIA transition
BTFM -- Manager Mt Druitt Shopping Centre Trust
BTFM -- Manager BT Hotel Trust
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
ROLE TRUST/FUNDS
BT Hotel Trust sub-trusts:
BTFM -- Manager National Convention Trust
(National Convention Corporation Pty
Ltd is the current trustee -- to be
transferred from PTAL to BTFM on MIA
transition)
BTFM -- Manager Convention Centre Hotel Trust
(Convention Centre Hotel Pty Ltd is
the current trustee -- to be transferred
from PTAL to BTFM on MIA transition)
3.2 UNLISTED WHOLESALE PROPERTY TRUSTS
ROLE TRUST/FUNDS
BTFM -- Trustee BTA Property Trust (BTAP)
Detawind Pty Ltd, Cynwest Pty Ltd and
Westatop Pty Ltd are the registered
owners of Maritime Trade Towers and are
wholly owned by BTFM on behalf of BTAP.
BTAP sub-trusts:
(Dellarak Pty Ltd -- Trustee) Office Building No 4 Trust
(QV1 Pty Ltd -- Trustee) QV1 Trust
BTCS -- Trustee) BT Shopping Centre Trust
BTFM -- Trustee BTA Property Trust No 3 (BTAP#3)
BTAP#3 sub-trusts:
BTA -- Trustee BT Brisbane Development Trust
BTFM -- Manager
BTCS -- Trustee BT Brisbane Development Sub-trust
BTFM -- Manager
▇▇▇▇▇▇▇ Investments Pty Ltd -- Trustee Heritage Floor space trust
BTFM -- Manager Floor space trust
--------------------------------------------------------------------------------
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▇▇▇▇▇ ▇▇▇▇▇
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--------------------------------------------------------------------------------
SCHEDULE 14
PARENT SUPPORT OBLIGATIONS
--------------------------------------------------------------------------------
1. Guarantee dated 30 April 1997 from BTNZ in favour of each person who
enters into an investment management agreement or is a unitholder in the
BT New Zealand Wholesale Superannuation Scheme or BT Balanced Fund (under
the BT New Zealand Unit Trust) guaranteeing the due performance of any
obligation of BTNZl as manager or trustee and of BTNZ2 as custodian.
2. Guarantee dated 1996 from BTNZ in favour of each person who enters into an
investment management agreement guaranteeing the due performance of any
obligation of BT Funds Management (NZ) Limited as manager and of BTNZ2 as
custodian.
3. Guarantee Letter of Comfort given to Comalco (New Zealand) Staff
Superannuation Fund by BTNZ dated 7 April 1995.
4. Guarantee Letter of Comfort given to ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (New Zealand)
Superannuation Scheme by BTNZ dated 9 June 1995.
5. Guarantee Letter of Comfort given to Mobil Employee Retirement & Benefits
Plan by BTNZ dated 22 July 1996.
134
▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED AS A DEED.
Each attorney executing this Deed states that he or she has not received notice
of the revocation or suspension of the power of attorney under which he does so.
THE VENDORS
SIGNED SEALED AND )
DELIVERED on behalf of )
BT FOREIGN INVESTMENT )
CORPORATION by its )
Attorney in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
SIGNED SEALED AND )
DELIVERED on behalf of )
BT INVESTMENTS (AUSTRALIA) )
LLC )
by its attorney in the presence of: )
)
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
135
▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SIGNED SEALED AND )
DELIVERED on behalf of )
BT NEW ZEALAND )
LIMITED by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
SIGNED SEALED AND )
DELIVERED on behalf of )
BT INTERNATIONAL )
(DELAWARE) INC. )
LIMITED by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
SIGNED SEALED AND )
DELIVERED on behalf of )
BT NOMINEES (H.K) LIMITED )
by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
136
▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
THE VENDORS' GUARANTOR
SIGNED SEALED AND )
DELIVERED on behalf of )
BANKERS TRUST CORPORATION )
by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
THE WARRANTOR
SIGNED SEALED AND )
DELIVERED on behalf of )
DEUTSCHE BANK AG )
by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
137
▇▇▇▇▇ ▇▇▇▇▇
SHARE SALE DEED & ▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
THE PURCHASER
SIGNED SEALED AND )
DELIVERED on behalf of )
PRINCIPAL FINANCIAL GROUP )
(AUSTRALIA) PTY LTD )
by its attorney )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
THE PURCHASER'S GUARANTOR
SIGNED SEALED AND )
DELIVERED on behalf of )
PRINCIPAL FINANCIAL )
SERVICES, INC. )
by its authorised representatives )
in the presence of: )
------------------------------------
Signature
------------------------------------ ------------------------------------
Witness Print name
------------------------------------
Print name
------------------------------------
Signature
------------------------------------
Print name