EXHIBIT 33
Trefoil International III, SPRL
Attention Xxxx XxXxxxxxx
Date: 21 October 2004
Dear Xxxx
RE: SALE OF SHARES BY IN XXXXXX LIMITED
1. SALE OF SHARES
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1.1 Trefoil International III, SPRL ("Seller") is a shareholder in Xxxxxx
Limited (ABN 89 004 085 330) ("Xxxxxx"). Schedule 1 of this agreement
sets out sale shares of the Seller (the "Sale Shares").
1.2 This agreement sets out the terms and conditions whereby the Seller
appoints Citigroup Global Markets Australia Pty Limited (ABN 64 003
114 832) ("Citigroup") to:
(a) act as its agent to offer for sale the Sale Shares on 21 October
2004 ("Trade Date");
(b) underwrite the sale of the Sale Shares at $8.70 per Sale Share
(the "Underwritten Price") by procuring subscribers for, or by
purchasing the Sale Shares;
(c) conduct a bookbuild to determine the allocation of the Sale
Shares amongst applicants for the Sale Shares at a price to be
determined per Sale Share by Citigroup in its absolute discretion
("Bookbuild Price");
(d) authorize Citigroup to access the Sale Shares held by the Seller
in the Issuer Sponsored Holding records, as evidenced by
Shareholder Reference Number [insert details] in order to fulfil
settlement obligations with applicants; and
(e) transfer the Sale Shares to such applicants in accordance with
such allocation.
1.3 The Seller undertakes to provide Citigroup with a current copy of the
relevant Issuer Sponsored Holding statement as soon as practicable.
1.4 Settlement of the Sale Shares will be on a T+3 basis ("Settlement
Date"). For the avoidance of doubt, Citigroup will remit the net
proceeds of the Sale Shares to the Seller by no later than 5pm (AEST)
on the Settlement Date.
2. FEES AND EXPENSES
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2.1 In consideration of Citigroup performing its obligations under this
agreement, the Seller agrees to pay to Citigroup a fee of 0.25% of the
gross sale proceeds of the Sale Shares plus GST payable on the
Settlement Date. All fees payable to Citigroup will be deducted from
the gross proceeds of the Sale Shares.
2.2 The parties further agree that if the Bookbuild Price under clause
1.2(c) exceeds the Underwritten Price, the Seller agrees to pay to
Citigroup an incentive fee of 33% of the number of Sale Shares
multiplied by the difference between the Bookbuild Price and the
Underwritten Price.
3. REPRESENTATIONS AND WARRANTIES
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3.1 The Seller represents, warrants and undertakes to Citigroup at all
times up to and including the Settlement Date that:
(a) it has the power to enter into and comply with all the terms and
conditions of this agreement;
(b) this agreement is its valid and binding obligation, enforceable
against it in accordance with its terms subject to any necessary
stamping or registration;
(c) it is the registered holder and sole legal beneficial owner of
the Sale Shares, owns the Sale Shares free and clear of any
liens, charges, security interests, claims, equities and
pre-emptive rights and has been the registered holder of the Sale
Shares for a period in excess of 12 months;
(d) following sale by the Seller, the Sale Shares will rank equally
in all respects with all other outstanding ordinary shares of
Xxxxxx, including their entitlements to dividends;
(e) the Seller does not at the date of this agreement have any
non-public information, or information that is not generally
available, than can reasonably be expected to have a material
impact on the price of Xxxxxx'x securities, and the sale of the
Sale Shares will not constitute a violation by the Seller of
applicable xxxxxxx xxxxxxx laws;
(f) it has the complete and unrestricted power and right to sell the
Sale Shares under this agreement and no person has a conflicting
right, whether contingent or otherwise, to purchase or be offered
for purchase the Sale Shares, or any of them;
(g) neither the Seller or any of its directors, officers and
employees controls Xxxxxx as defined in Section 50AA of the
Corporations Act 2001 (the "Act"); and
(h) neither the Seller nor its directors, officers and employees is
or will be in breach of the Act (including but not limited to
S.1043A) or any other applicable law through the execution,
delivery and performance of this agreement by the Seller.
3.2 The Seller acknowledges that Citigroup will rely on each of the
warranties given by the Seller in this agreement in offering to sell
the Sale Shares.
3.3 The Seller authorizes Citigroup to inform potential investors in the
Sale Shares of the representations and warranties made by the Seller
under this agreement but the Seller does not authorize Citigroup to
provide any further representations or warranties on the Seller's
behalf to third parties.
3.4 The Seller acknowledges that it will be liable to pay any, GST or
other charges, duties or imposts on the transfer of the Sale Shares
from the Seller (but not, for the avoidance of doubt, any subsequent
transfer by Citigroup) other than any such amounts arising as a result
of the reckless, illegal act or omission, breach of this agreement,
fraud or negligence of Citigroup or its agents or employees, and the
Seller authorizes Citigroup to deduct the relevant amounts from the
Application money allocated to the Sale Shares and pay that stamp duty
on their behalf.
4. INDEMNITY
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4.1 Subject to clause 4.2, the Seller agrees to indemnify Citigroup, it's
related bodies corporate, directors, officers and employees (each an
"Indemnified Party" and collectively the "Indemnified Parties") from
and against all liabilities (including legal expenses), losses
directly or indirectly suffered by, or claims made against, an
Indemnified Party arising out of or in connection with:
(a) (breach) the Seller or any of its agents or employees failing to
perform or observe any of its obligations under this agreement or
any other obligations to the Indemnified Parties binding on it;
(b) (misrepresentation) any representation or warranty made or given
by the Seller under clause 3 ("Representations and Warranties")
in this agreement, proving to have been untrue or incorrect; and
(c) (generally) a breach of this Act by the Seller its agents,
employees or contractors (including, but not limited to, sections
1041H and 1041I) or any other applicable law in relation to the
Sale Shares.
Each of the paragraphs of this clause 4.1 ("Indemnity") will
be construed independently and no paragraph will be limited
by implications arising from any other paragraph.
4.2 The indemnity in clause 4.1 does not extend to and will not be deemed
to be an indemnity against losses suffered by, or claims made against,
an Indemnified Party to the extent that those losses or claims are
finally judicially determined to result from fraud, willful
misconduct, gross negligence or breach of this agreement by that
Indemnified Party or its agents or employees.
4.3 Each Indemnified Party, whether or not a party to this agreement, will
be entitled to the benefit of this clause 4 ("Indemnities") and this
clause 4 ("Indemnities") is entered into and may be enforced on that
Indemnified Party's behalf by Citigroup.
5. GENERAL
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5.1 This Agreement is governed by the laws of New South Wales and each
party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales.
5.2 This agreement may be executed in counterparts. All executed
counterparts constitute one document.
5.3 This agreement may be altered only in writing signed by each party.
5.4 The offer to underwrite the Sale Shares at the Underwritten Price
maybe only accepted by signing and returning the enclosed duplicate of
this letter by no later than 4.30p.m. on the Trade Date.
5.5 This is the entire agreement between the parties about the sale of the
Sale Shares and, to the extent possible, the parties exclude all terms
implied by law. Neither party has made any representation or warranty
about the Sale Shares other than those representations and warranties
appearing in this agreement.
5.6 Citigroup hereby acknowledges that it has received a copy of the
Issuer Sponsored Holding statement and irrevocably waives the
requirements in clause 1.3 with respect thereto. Pursuant to the
Margin Lending Facility Agreement, dated August 9, 2002 (the "Margin
Agreement"), among Shamrock Holdings of California, Inc., Seller,
Citigroup, Inc. and Citigroup, Citigroup hereby irrevocably consents
to the sale of the Sale Shares as contemplated by this Agreement,
subject to clause 7.1(b) of the Margin Agreement.
/s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
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For and on behalf of Title: Managing Director,
CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED Head of Equity Capital
Markets
Date: 21 October 2004
/s/ Xxxxxxx X. Gold Name: Xxxxxxx X. Gold
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For and on behalf of Title: Director
Trefoil International III, SPRL
Date: October 21, 2004
SCHEDULE 1
SALE SHARES
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NAME SHAREHOLDING
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TREFOIL 8,000,000
INTERNATIONAL III,
SPRL
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