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ASX ANNOUNCEMENT: LISTING OF BHP STEEL LIMITED
The offer for ordinary shares in BHP Steel Limited (ACN 000 011 058) is now
closed. Trading in BHP Steel Shares is expected to commence on a conditional
and deferred settlement basis at 11:30 am Australian Eastern Standard Time
today. Normal trading is expected to commence on Thursday, 25 July 2002.
Price and basis of allocation
Applications have been accepted at the price and on the basis of allocation
described below.
Final Price
The Final Price for the Retail Offer and the Institutional Offer will be A$2.80
per share.
Basis of Allocation
Retail Offer
Offer to BHP Billiton Limited Shareholders
All successful applicants under the Offer to BHP Billiton Limited Shareholders
have been allocated shares as described in the table below.
OFFER TO BHP BILLITON LIMITED SHAREHOLDERS
Application Size Basis of Allocation
Up to A$5,000 100% of amount applied for
More than A$5,000 A$5,000 plus 30% of amount
applied for over A$5,000
General Public Offer
Applicants under the General Public Offer will not receive any allocation.
Applicants who have accepted an allocation of shares under the Broker Firm Offer
have been satisfied in full. Applicants under the Broker Firm Offer can confirm
their allocations with their broker.
Institutional Offer
Successful applicants in the Institutional Offer will be advised of their
allocations directly by the Joint Global Co-ordinators, ABN AMRO Rothschild and
Credit Suisse First Boston.
Sale Facility
All BHP Billiton Limited shareholders (except Institutional Selling
Shareholders) who offered BHP Steel shares for sale under the Sale Facility
have had their offer satisfied in full.
Institutional Selling Shareholders
Institutional shareholders who offered BHP Steel shares for sale under the Sale
Facility will be advised of the satisfaction of their offer directly by the
Joint Global Co-ordinators, ABN AMRO Rothschild and Credit Suisse First Boston.
Proceeds from sale under the Sale Facility will be despatched on 24 July 2002.
Procedure to determine exact allocation
Applicants requiring any further information relating to the BHP Steel Offer,
including confirmation of entitlements, should contact the BHP Steel Offer
should contact the BHP Steel Share Information Centre on 1300 855 998.
Operators are available Monday to Friday from 8:30 am to 5:30 pm Australian
Eastern Standard Time.
Applicants with queries regarding BHP Billiton Limited shares should contact the
share department on 1300 655 140.
Despatch of notices
CHESS notices and issuer sponsored holding statements will be despatched on 24
July 2002.
Despatch of refunds
Refunds, if any, will be despatched on 24 July 2002.
Conditions for the conditional market
Trading in BHP Steel Shares will commence on a conditional and deferred
settlement basis.
Trading will be conditional upon settlement occurring under the Broker Selling
Agreements. Trading will continue to be conditional until BHP Billiton Limited
notifies ASX that this settlement has occurred. If notice is not given to ASX
that settlement has occurred by 31 July 2002:
* the conditions will be taken not to have been satisfied;
* the contracts formed on acceptance of applications under the Offer will be
terminated;
* all conditional trades that may have occurred on ASX during the conditional
trading period will be cancelled; and
* all application monies will be refunded without interest.
It is the responsibility of applicants to determine their holding details prior
to trading in BHP Steel shares. Applicants selling shares prior to receiving
confirmation of their holding will do so at their own risk.
Transfer of securities
Quotation is sought for 793 million ordinary shares. All of these securities
will be transferred to successful applicants on 22 July 2002. No shares are
subject to voluntary escrow arrangements.
Distribution schedule
An indicative distribution schedule is attached in Appendix A.
Top twenty holders
An indicative schedule of Top twenty holders is attached in Appendix B.
Long Term Incentive Program
The full terms and conditions of the Long Term Incentive Program are attached in
Appendix C.APPENDIX A: DISTRIBUTION SCHEDULE
Distribution schedule
An indicative distribution schedule of the numbers of holders in the form
contained in Appendix 1A, paragraph 48, appears below:
Size of Holders Shares
Holding
Number % Number %
1-1,000 206,820 7.46 59,168,613 7.46
1,001-5,000 54,416 14.24 112,944,67 14.24
1
5,001- 5,097 4.40 34,858,832 4.40
10,000
10,001- 2,878 8.12 64,391,789 8.12
100,000
100,001 and 205 65.78 521,635,07 65.78
over 8
TOTAL 269,416 100% 792,998,98 100%
3
APPENDIX B: TOP TWENTY HOLDERS
Top twenty holders
An indicative statement detailing the names, number and percentages held by the
twenty largest holders of ordinary shares, the only class to be quoted, appears
in the table below:
Name Number % Rank
J P MORGAN NOMINEES AUSTRALIA 101,185,421 12.75 1
LIMITED
NATIONAL NOMINEES LIMITED 76,896,764 9.69 2
WESTPAC CUSTODIAN NOMINEES LIMITED 68,662,928 8.65 3
CITICORP NOMINEES PTY LIMITED 16,946,908 2.13 4
WESTPAC CUSTODIAN NOMINEES LIMITED 13,971,685 1.76 5
QUEENSLAND INVESTMENT CORPORATION 13,243,341 1.67 6
AMP LIFE LIMITED 12,799,108 1.61 7
ANZ NOMINEES LIMITED 12,401,382 1.56 8
COMMONWEALTH CUSTODIAL SERVICES 11,899,767 1.50 9
LIMITED
MLC LIMITED 9,112,483 1.14 10
CITICORP NOMINEES PTY LIMITED 7,317,440 0.92 11
HSBC CUSTODY NOMINEES (AUSTRALIA) 5,763,608 0.72 12
LIMITED
RBC GLOBAL SERVICES AUSTRALIA 5,466,133 0.68 13
NOMINEES PTY LIMITED
ING LIFE LIMITED 4,944,536 0.62 14
COGENT NOMINEES PTY LIMITED 4,930,048 0.62 15
CITICORP NOMINEES PTY LIMITED 4,005,676 0.50 16
RBC GLOBAL SERVICES AUSTRALIA 3,860,407 0.48 17
NOMINEES PTY LIMITED
NRMA NOMINEES PTY LIMITED 3,655,348 0.46 18
CITICORP NOMINEES PTY LIMITED 3,308,961 0.41 19
THE NATIONAL MUTUAL LIFE ASSOCIATION 3,287,396 0.41 20
OF AUSTRALASIA LIMITED
APPENDIX C: LONG TERM INCENTIVE PROGRAM
BHP Steel Employee Share Plan Trust Deed
BHP Steel Limited
ABN 16 000 011 058
BHP Steel Share Plan Pty Ltd
ACN 101 326 336 ]
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
2. APPOINTMENT AND COMMENCEMENT 4
2.1 Appointment of Trustee 4
2.2 Commencement 4
2.3 Trust Assets 4
3. THE TRUSTEE 4
3.1 Powers of Trustee 4
3.2 Trustee Powers - Shares and Rights 5
3.3 Limitation on Trustee 5
3.4 Remuneration 6
3.5 Removal of Trustee 6
3.6 New Trustee 6
4. TRUSTEE INDEMNITY 6
4.1 Indemnity 6
4.2 Trustee Cannot Recover from Employees 7
5. AUDIT 7
5.1 Accounts 7
5.2 Auditor 7
6. OVERRIDING RESTRICTIONS ON OPERATION OF PLAN 7
6.1 Cap on issued Share Rights and Trust Shares 7
6.2 Restrictions on dealing 7
7. DISTRIBUTIONS IN RESPECT OF TRUST SHARES 8
7.1 Shares 8
7.2 Dividends 8
7.3 Rights Issues 8
8. VOTING RIGHTS 9
8.1 Right to receive notice of meeting 9
8.2 Trustee to vote in accordance with Participant`s directions 9
8.3 No right to vote without Participant`s directions 9
9. ENTITLEMENTS ATTACHING TO SHARES 9
10. FORFEITURE OF TRUST SHARES 9
11. APPLICATION OF FORFEITED SHARES 9
11.1 Forfeited Shares 9
11.2 Disposal of Forfeited Shares 10
11.3 Rights to Forfeited Shares 10
12. WITHDRAWAL OF TRUST SHARES 10
12.1 Transfer After Ten Years 10
12.2 Transfer Before Ten Years 10
12.3 Trustee to Transfer 10
12.4 Cost of Transfer 11
13. TERMINATION 11
13.1 Termination events 11
13.2 Distribution of Assets 11
14. INCOME AND CAPITAL DISTRIBUTIONS 11
14.1 Participant`s right to Trust Income 11
14.2 Distributing Trust Income to Discretionary Beneficiaries 12
14.3 Accumulating Trust Income 12
14.4 Application of capital of ESP Trust 12
15. POWERS OF BHP STEEL 12
15.1 Powers 12
16. AMENDMENT 13
16.1 Amendments 13
16.2 Restriction on amendment power 13
17. TAXATION LIABILITY 13
17.1 Adjustments 13
17.2 No Liability 14
17.3 Withholding Taxes 14
17.4 Reimbursement 14
18. RIGHTS OF EMPLOYEES 14
19. CONNECTION WITH OTHER PLANS 15
20. ACKNOWLEDGEMENT 15
21. NOTICES 15
22. LAW 16
SCHEDULE 1 LONG TERM INCENTIVE PLAN 17
1. OFFER OF SHARE RIGHTS 17
1.1 Determining participation 17
1.2 Terms 17
1.3 Granting Share Rights 18
1.4 Acceptance of offer 18
1.5 Recording Share Rights grants 19
1.6 Disclaimer 19
1.7 Reduction in grant 19
1.8 Deed and Terms are binding 20
1.9 Participant`s representatives 20
2. PERFORMANCE AND SERVICE CONDITIONS 20
2.1 Number of Share Rights exercisable 20
2.2 Determination by BHP Steel 20
2.3 Dismissal, resignation or cessation of employment 20
3. EXERCISE OF SHARE RIGHTS 21
3.1 BHP Steel to notify Trustee 21
3.2 Participant to notify Trustee 21
3.3 Rounding 21
3.4 Ten year limit 22
3.5 Takeover Bid 22
4. BONUS SHARES, RIGHTS ISSUES AND RECONSTRUCTIONS OF CAPITAL - SHARE RIGHTS
22
5. ACQUISITION OF TRUST SHARES 23
5.1 BHP Steel to determine funding for Shares 23
5.2 Trustee to acquire, subscribe for or allocate Shares 23
5.3 Subscription price for Shares 24
5.4 BHP Steel Group to provide funds for Shares 24
BHP Employee Share Plan Trust Deed
DATE 12 July 2002
PARTIES
BHP Steel Limited ABN 16 000 011 058 of 120 Collins Street, Melbourne, Victoria
("BHP Steel")
BHP Steel Employee Share Plan Pty Ltd ACN 101 326 336 of 120 Collins Street,
Melbourne, Victoria (the "Trustee")
RECITALS
A. BHP Steel is establishing the Plans pursuant to this deed, to assist in the
attraction, retention and motivation of employees and directors and to enable
employees and directors, as shareholders, to share in the future growth of the
BHP Steel Group.
B. The Trustee is to act as trustee of the trust which is to establish the
Plans and to receive funds from the BHP Steel Group and apply the funds as set
out in this deed. The sole activities of the trust are to relate to the purpose
set out in Recital A.
OPERATIVE PROVISIONS
PART A - INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply in this deed (including the schedules) unless
the context requires otherwise.
"Accretion", in respect of a Trust Share, means any bonus share, rights under a
Rights Issue, dividend or other distribution in respect of the Trust Share.
"ASX" means Australian Stock Exchange Limited.
"Average Share Price" in respect of a particular date, means the weighted
average market price of a Share determined on the basis of Shares sold on the
ASX during the 5 trading days (or other period as BHP Steel in its discretion
considers appropriate) preceding the date.
"BHP Steel LTIP" means the BHP Steel Long Term Incentive Plan, being the
employee share incentive plan constituted by the General Provisions and schedule
1.
"BHP Steel Group" means BHP Steel and each body corporate that is a subsidiary
of BHP Steel and any other body corporate nominated by BHP Steel from time to
time.
"Discretionary Beneficiaries" means:
(a) Participants;
(b)Employees;
( c) a provident, benefit, superannuation or retirement fund established and
maintained for the benefit of Employees (or any of them) in which none of BHP
Steel or any member of the BHP Steel Group is beneficially interested; and
(d) any charity nominated by the BHP Steel.
"Employee" means a full-time employee or a permanent part-time employee of a
member of the BHP Steel Group.
"Employer Company" has the meaning given to it in clause 17.3.
"ESP Trust" means the trust for the Plans established under this deed.
"Financial Year" means a period of twelve months ending on 30 June or other date
determined by the Trustee from time to time.
"Forfeited Share" means a Trust Share forfeited under Part C of this deed.
"General Provisions" means the provisions of this deed other than the Schedule.
"Listing Rules" means the listing rules of the ASX.
"Net Income" means in respect of a Year of Income of the ESP Trust, an amount
which the Trustee determines to be the "net income" (as defined in section 95 of
the Income Tax Assessment Act 1936) of the ESP Trust for the Year of Income.
"Notice of Withdrawal of Shares" means a written request made by a Participant
to the Trustee in a form approved by BHP Steel for permission to withdraw all or
some of the Vested Trust Shares held in respect of the Participant.
"Outstanding Share Rights" means Share Rights which have not been exercised or
lapsed.
"Participant" means, in relation to the BHP Steel LTIP, an Employee who is the
holder of Share Rights or on whose behalf Trust Shares are held by the Trustee
under the BHP Steel LTIP.
"Performance Condition" means any condition or any mechanism for setting any
condition relating to performance whether of BHP Steel, any member of the BHP
Steel Group, any part of the business of the BHP Steel Group or Participants as
BHP Steel in its discretion considers appropriate.
"Performance Period" means any period determined by BHP Steel in its discretion
for the purpose of determining whether, or the extent to which, any Performance
Condition or Service Condition is met.
"Plans" means:
(i) the BHP Steel LTIP; and
(ii) any other employee share plan or incentive scheme approved by BHP Steel as
a "Plan" for the purposes of this deed.
"Resignation" means a resignation by a Participant other than:
(a) a resignation tendered upon request by a member of the BHP Steel Group;
(b) a resignation agreed by a member of the BHP Steel Group to be a retirement,
or
(c) a resignation effected by the acceptance of an offer of redundancy.
"Rights Issue" means an issue of rights (not being Share Rights or by way of a
pro rata bonus issue of fully paid shares other than securities) to acquire
Shares or other securities made by BHP Steel.
"Service Condition" means any condition or other term relating to duration or
place of employment, nature of services to be provided to the BHP Steel Group,
employment performance or otherwise in relation to employment with the BHP Steel
Group, as BHP Steel in its discretion considers appropriate.
"Share" means a fully paid ordinary share in the capital of BHP Steel.
"Share Right" means a right to acquire a Share granted under Schedule 1.
"Terms" means in respect of Share Rights or Trust Shares held on behalf of a
Participant under the BHP Steel LTIP, the terms determined by BHP Steel under
Clause 1.2 of Schedule 1 in relation to those Share Rights or Trust Shares; or
"Trust Assets" means the property, rights and income of the ESP Trust.
"Trust Share" means a Share which is held by the Trustee in respect of a
Participant and includes any bonus share issued in respect of the Trust Share
under any bonus issue made by BHP Steel to shareholders.
"Vested Share Rights" means Share Rights which have become exercisable but which
have not been exercised under the applicable Terms or this deed, but does not
include Share Rights which have lapsed.
"Year of Income" means a period of 12 months ending on the last day of a
Financial Year and includes the period commencing on the establishment of the
ESP Trust under Clause 0 and ending on the last day of the Financial Year in
which the establishment occurs and the period ending on the date of termination
of the ESP Trust and commencing on the first day of the Financial Year in which
the date of termination falls.
1.2 Interpretation
Headings are for convenience only, and do not affect interpretation. The
following rules also apply in interpreting this document, except where the
context makes it clear that a rule is not intended to apply.
(a) A singular word includes the plural, and vice versa.
(b) A word which suggests one gender includes the other genders.
( c)If a word is defined, another part of speech has a corresponding meaning.
(d) If an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the example does not
limit the scope of that thing.
(e) The word "subsidiary" has the same meaning as in the Corporations Act 2001.
(f) A reference to the Constitution of BHP Steel, a Plan, the ESP Trust or an
agreement or document (including, without limitation, a reference to this deed)
is to the Constitution, Plan, ESP Trust, the agreement or document as amended,
varied, supplemented, novated or replaced, except to the extent prohibited by
this deed or that other agreement or document.
(g) A reference to a party to this deed or another agreement or document
includes the party`s successors, permitted substitutes and permitted assigns
(and, where applicable, the party`s legal personal representatives).
(h) A reference to legislation or to the Listing Rules includes a modification
or re-enactment of them and, in the case of legislation, a regulation or
statutory instrument issued under it.
PART B - ESTABLISHMENT OF ESP TRUST
2. APPOINTMENT AND COMMENCEMENT
2.1 Appointment of Trustee
BHP Steel appoints the Trustee as the trustee of the ESP Trust and the Trustee
agrees to be the trustee of the ESP Trust with effect from the establishment of
the ESP Trust under Clause 2.2.
2.2 Commencement
The ESP Trust is established upon the payment by BHP Steel to the Trustee of $10
which is to be held by the Trustee and form part of the Trust Assets.
2.3 Trust Assets
Subject to Clause 0, the Trust Assets are to be held by the Trustee on trust for
the benefit of the Discretionary Beneficiaries from time to time in accordance
with the terms of this deed until termination of the ESP Trust under this deed
or by operation of the law.
3. THE TRUSTEE
3.1 Powers of Trustee
Subject to this deed, the Trustee in its discretion has the full power to do all
things a trustee is permitted to do by law in respect of the ESP Trust and the
Trust Assets including the following:
(a) to enter into and execute all deeds, contracts or other documents and do all
things it in its discretion considers necessary to give effect to and carry out
the rights, powers and discretions conferred on the Trustee under this deed;
(b) to delegate to any person or company the exercise of all or any of the
rights, powers or discretions conferred on the Trustee under this deed and to
execute any power of attorney or other instrument necessary to effect the
delegation;
(c )to commence, defend, settle or otherwise compromise any legal proceedings
relating to the ESP Trust or any Trust Assets;
(d) to acquire, dispose of or otherwise deal with on any terms any property
(including Shares) and to make investments for the benefit of the Participants
or the Discretionary Beneficiaries;
(e) to open and operate any bank and other accounts for the ESP Trust as the
Trustee thinks fit;
(f) to raise and borrow money in any manner either without security or secured
by a mortgage or charge over all or any part of the Trust Assets other than
Trust Shares;
(g) to take advice from any adviser (in relation to this deed or on the
operation of the ESP Trust or otherwise) and act on that advice in any manner it
thinks fit;
(h) to employ or engage, and at its discretion, remove or suspend custodians,
trustees, managers, servants and other agents, determine the powers and duties
to be delegated to them, and pay the remuneration to them it thinks fit;
(i) to do all things which the Trustee in its discretion considers necessary to
administer and maintain the ESP Trust and the Trust Assets in accordance with
this deed;
(j) to rely on any document provided by an Employee or Participant, the form of
which has been approved by BHP Steel, whether signed by the Employee or
Participant or otherwise; and
(k) to refer any claim or demand by or against the Trustee in respect of the ESP
Trust to arbitration and to observe and perform an award made under arbitration.
3.2 Trustee Powers - Shares and Rights
Without limiting clause 3.1(d), if, at any time, the Trustee holds Shares or
rights issued under any Rights Issue otherwise than for Participants then the
Trustee in its discretion may:
(a) sell the Shares or rights on the ASX;
(b) sell the Shares or rights by private sale; or
(c) if BHP Steel offers to buy back the Shares, accept the offer,
at the price and on the terms the Trustee in its discretion determines.
3.3 Limitation on Trustee
Despite any other provision of this deed, the Trustee is not:
(a) permitted to offer, grant, issue or acquire any Share or any right to any
Share if to do so would, or would in the opinion of the Trustee (having taken
legal advice), contravene the Corporations Act 2001 or the Listing Rules or any
other applicable law; or
(b) obliged to offer, grant, issue or acquire any Share or any right to any
Share where compliance with any applicable law would in the opinion of the
Trustee or BHP Steel be unduly onerous or impractical.
3.3 Remuneration
The Trustee is not entitled to any remuneration in respect of its performance of
its obligations as trustee of the ESP Trust.
3.5 Removal of Trustee
The Trustee ceases to be the trustee of the ESP Trust:
(a) seven days after the Trustee giving a notice of resignation as Trustee to
BHP Steel;
(b) upon BHP Steel serving the Trustee with a notice of removal as Trustee; or
(c ) immediately when:
(i) a receiver or manager or receiver and manager or administrator is appointed
to the Trustee;
(ii) the Trustee goes into liquidation; or
(iii) an order or resolution is made for its winding up.
3.6 New Trustee
When a party ceases to be the trustee of the ESP Trust:
(a) BHP Steel will appoint a new trustee which will become the trustee of the
ESP Trust upon the execution by it of a deed by which it agrees to be bound by
this deed as trustee; and
(b) the trustee which is ceasing to be trustee must execute all share transfers
and assign all other documents necessary to transfer the Trust Shares and Trust
Assets into the name of the new trustee.
Pending appointment of the new trustee, BHP Steel or any of its subsidiaries
nominated by BHP Steel may act as trustee of the ESP Trust consistently with the
law.
4. TRUSTEE INDEMNITY
4.1 Indemnity
To the extent permitted by law, BHP Steel indemnifies the Trustee in respect of
all liabilities, costs and expenses incurred by the Trustee in performing its
obligations as trustee of the ESP Trust.
4.2 Trustee Cannot Recover from Employees
Subject to applicable Terms and clause 17, the Trustee cannot recover any
liabilities, costs or expenses from any Employee or Participant.
5 AUDIT
5.1 Accounts
The Trustee must keep or cause to be kept true accounts of all sums of money
received and expended by or on behalf of the Trustee and the matters in respect
of which the receipt and expenditure takes place and of all acquisitions and
disposals of Shares and of the assets and liabilities of the ESP Trust.
5.2 Auditor
The Trustee will appoint an auditor of the ESP Trust and will cause the books of
account to be audited annually by the auditor.
6. OVERRIDING RESTRICTIONS ON OPERATION OF PLAN
6.1 Cap on issued Share Rights and Trust Shares
The Trustee must not make an offer or grant Share Rights, and BHP Steel must not
require the Trustee to subscribe for and BHP Steel must not issue to the
Trustee, Shares on a particular day if the aggregate of:
(a) the number of Shares which underlie Outstanding Share Rights (assuming all
related Performance Conditions and Service Conditions are fully satisfied),
including Vested Share Rights, but excluding Vested Share Rights for which the
Trustee has received a valid notice of exercise under clause 3.2 of Schedule 1
from the Participant and BHP Steel has, under clause 5.2(i), (iii) or (iv) of
Schedule 1, elected that the Trustee must purchase the relevant Shares or
allocate them from the Trust Assets;
(b) the number of Trust Shares held by the Trustee and acquired by it by way of
subscription under this deed;
(c ) the number of Shares which underlie the Share Rights proposed to be offered
or granted, or the number of Shares proposed to be issued and subscribed for (as
the case may be),
would exceed 10% of the total number of Shares on issue on the day.
6.2 Restrictions on dealing
Except with the prior approval of BHP Steel in its discretion, a Participant
must not (and must not purport to) sell, transfer, mortgage, charge or otherwise
dispose of, deal with or encumber any Share Rights, Shares which underlie Share
Rights, Trust Shares or any other right arising under this deed except in so far
s this deed or the applicable Terms expressly permit the Participant to do so.
PART C - TREATMENT OF TRUST SHARES
7. DISTRIBUTIONS IN RESPECT OF TRUST SHARES
7.1 Shares
Subject to this deed (and, in particular, Clauses 0, 0 and 0), a Participant is
beneficially entitled to all Trust Shares held by the Trustee on behalf of the
Participant.
7.2 Dividends
(a ) Subject to applicable Terms, a Participant will be entitled to receive from
the Trustee all dividends or other cash distributions paid by BHP Steel on all
Trust Shares held by the Trustee in respect of the Participant.
(b) In its discretion, the Trustee may make any arrangements it considers
appropriate to enable participation of any Trust Shares in any dividend
reinvestment or similar plan of BHP Steel.
7.3 Rights Issues
Subject to applicable Terms:
(a) the Trustee will send a notice to a Participant of any Rights Issue in
respect of Trust Shares held by the Trustee in respect of that Participant;
(b) the Participant may provide the Trustee with a notice in the form (if any)
prescribed by BHP Steel requesting the Trustee:
(i) where the rights under the Rights Issue are renounceable, to sell some or
all of the rights under the Rights Issue and if the Trustee does so, the Trustee
must then promptly distribute the proceeds of the sale (after deduction of the
costs of sale incurred by the Trustee) to the Participant; or
(ii) to subscribe for some or all of the securities to which the Participant is
entitled under the Rights Issue provided the request is accompanied by payment
of an amount equal to the cost of taking up the rights under the Rights Issue
and transferring the resultant securities to the Participant;
if the Trustee subscribes for a specified number of securities under
Clause 0(b)(ii) on behalf of the Participant, the Trustee must do all things
required by it to promptly transfer legal title in those securities to the
Participant; and
(c) if the Trustee does not receive a notice under Clause 0(b) in respect of
Trust Shares together with the appropriate payment within 14 days of despatch of
the notice under Clause 0(a) whether because the Participant did not provide the
notice or for any other reason, the Trustee may in its discretion sell some or
all of the rights under the Rights Issue (if the rights are renounceable) on
behalf of the Participant and if it does so, must then promptly distribute the
proceeds of the sale (after deduction of the costs of sale incurred by the
Trustee) to the Participant.
8. VOTING RIGHTS
8.1 Right to receive notice of meeting
A copy of the notice of all general meetings of shareholders of BHP Steel
received by the Trustee must promptly be forwarded to a Participant on whose
behalf the Trustee holds Trust Shares if, before the Trustee received the
relevant notice of meeting, the Participant has requested the Trustee to forward
copies of all notices for the succeeding year.
8.2 Trustee to vote in accordance with Participant`s directions
If a Participant gives the Trustee written instructions on how to vote in
respect of the Trust Shares held for that Participant not less than 5 days prior
to the relevant meeting, the Trustee must exercise the voting rights attaching
to those Trust Shares in accordance with those written instructions.
8.3 No right to vote without Participant`s directions
If the Trustee does not receive written instructions in accordance with
Clause 0, the Trustee must not exercise the voting rights attaching to the Trust
Shares held in respect of the Participant.
9. ENTITLEMENTS ATTACHING TO SHARES
(a) Shares issued to the Trustee or a Participant (including as a result of the
exercise of Share Rights) will rank equally with other Shares on issue at the
time of the issue.
(b) No Share Rights will give, prior to its exercise, the Participant any right
to attend or vote at any meeting of BHP Steel.
10. FORFEITURE OF TRUST SHARES
Unless BHP Steel determines otherwise or the applicable Terms expressly provide
otherwise, a Participant forfeits any right or interest to any Share Rights or
Trust Shares if the Participant ceases to be employed by a member of the BHP
Steel Group because of an act of fraud, defalcation or gross misconduct in
relation to the affairs of BHP Steel or any other member of the BHP Steel Group.
11. APPLICATION OF FORFEITED SHARES
11.1 Forfeited Shares
(a) For the avoidance of doubt, a Forfeited Share is part of the Trust Assets of
the ESP Trust, and, subject to this clause 11, the Trustee is entitled to deal
with a Forfeited Share in the same manner as it would deal with any other Trust
Assets.
(b) In its discretion, BHP Steel may from time to time by notice in writing
direct the Trustee to hold any Forfeited Share for the benefit of any
Discretionary Beneficiary (whether as a Trust Share or otherwise as specified by
BHP Steel) or to transfer any Forfeited Share to any Discretionary Beneficiary.
11.2 Disposal of Forfeited Shares
Unless BHP Steel has given a direction under Clause 0, the Trustee in its
discretion may sell any Forfeited Share and apply the proceeds as provided in
Clause 11.3
11.3 Rights to Forfeited Shares
(a) Any dividends, bonus shares or other benefits received by the Trustee in
respect of any Forfeited Shares or any proceeds of sale of any Forfeited Shares
may be applied by the Trustee in consultation with BHP Steel:
(i) in meeting any expenses incurred in administration of the Plans;
(ii) for the benefit of any Discretionary Beneficiary; or
(iii) for any other purpose relevant to the Plans.
(b) The Trustee may not exercise any voting rights attaching to any Forfeited
Shares.
12. WITHDRAWAL OF TRUST SHARES
12.1 Transfer After Ten Years
Subject to Clauses 11 and 12, the Trustee must transfer a Trust Share held for a
Participant to the Participant on (or as soon as practicable after) ,where the
Participant became entitled to the Trust Share as a result of the exercise of a
Share Right - the 10th anniversary of the date of grant of the related Share
Right ,if it has not already been transferred to the Participant prior to that
date.
12.3 Transfer Before Ten Years
Except as provided in clause 0, before the 10th anniversary referred to in
Clause 0, the Trustee must not sell any Trust Shares on behalf of any
Participant or transfer any Trust Shares to or at the direction of any
Participant.
12.3 Trustee to Transfer
Subject to clause 0, the Trustee must do all things required by it to transfer
legal title in the Trust Shares held for a Participant to, or at the direction
of, the Participant:
(a) where required to do so by any applicable Terms;
(b) subject to applicable Terms, where a Participant ceases to be (in the case
of a Participant in the BHP Steel LTIP) employed by a member of the BHP Steel
Group (other than where the Trust Shares are or are liable to be forfeited under
Clause 10), and gives to the Trustee a Notice of Withdrawal of Shares;
(c ) in accordance with Clause12.1;
(d) if a takeover bid (within the meaning of the Corporations Act 2001) is made
for all of the Shares, and the Participant gives the Trustee a Notice of
Withdrawal of Shares at any time prior to the last three days of the bid period
specified in the offer document;
(e) the ESP Trust is terminated under Clause 13; or
(f) otherwise where BHP Steel in its discretion determines.
12.4 Cost of Transfer
Subject to applicable Terms, the Participant must pay all costs associated with
the transfer of Shares under this clause, unless BHP Steel in its discretion
determines otherwise.
PART D - TERMINATION OF ESP TRUST
13. TERMINATION
13.1 Termination events
The ESP Trust will terminate and be wound up as provided by law or upon the
first to occur of the following events:
(a) an order being made or an effective resolution being passed for the winding
up of BHP Steel (other than for the purpose of amalgamation or reconstruction);
(b) a person becoming entitled to compulsorily acquire all the Shares;
(c) a resolution is passed by shareholders of BHP Steel to cancel or buy-back
all Shares held by the Trustee pursuant to a scheme of arrangement, reduction of
capital, share buy-back or otherwise;
(d) BHP Steel determining that the ESP Trust is to be wound up; and
(e) the day before the 80th anniversary of the date on which the ESP Trust is
established under Clause 2.2 .
13.2 Distribution of Assets
If there are any Trust Assets remaining in the ESP Trust following the
distribution to Participants of any Trust Shares under Clause 0 and any Net
Income attributable to Participants under Clause 0, those Trust Assets must be
applied by the Trustee at the direction of BHP Steel, for the benefit of any one
or more of the Discretionary Beneficiaries nominated by BHP Steel.
14. INCOME AND CAPITAL DISTRIBUTIONS
14.1 Participant`s right to Trust Income
Subject to applicable Terms, a Participant is presently entitled to so much of
the Net Income of the ESP Trust for a Year of Income which is attributable to:
(a) the Share Rights issued in respect of that Participant;
(b) any Trust Shares held by the Trustee on behalf of that Participant; and
(c ) the proceeds of sales arising from the sale of rights under a Rights Issue
by the Trustee on behalf of that Participant.
14.2 Distributing Trust Income to Discretionary Beneficiaries
The balance of the Net Income of the Trust for a Year of Income to which no
Participant is entitled in accordance with Clause 0 may be applied, in whole or
in part, for the benefit of one or more of the Discretionary Beneficiaries
nominated by BHP Steel.
14.3 Accumulating Trust Income
The balance of the Net Income of the Trust for a Year of Income to which no
Participant is entitled in accordance with Clause 14.1 and not applied in
accordance with Clause 14.2 may be accumulated by the Trustee as an addition to
the Trust Assets.
14.4 Application of capital of ESP Trust
If it thinks fit, prior to the termination of the ESP Trust as set out in Clause
13.1 , the Trustee may apply that part of the capital of the ESP Trust to which
no Participant would be entitled as set out in Clause 14.1 if the ESP Trust was
terminated at that time, in one or more of the following means:
(a) in payment of any costs and expenses incurred by the Trustee in the
execution or purported execution of the ESP Trust or any of the powers,
authorities or discretions vested in the Trustee; or
(b) for the benefit of any one or more of the Discretionary Beneficiaries as
nominated by BHP Steel.
PART E - MISCELLANEOUS
15. POWERS OF BHP STEEL
15.1 Powers
The Plans will be administered by BHP Steel which will have the authority to:
(a) make final and absolute determinations regarding any calculation or
determination required under any Plan;
(b) resolve and bind the Trustee, any Employee and any Participant absolutely
regarding any question of interpretation, effect or application of this deed,
the Plans or the relevant Terms;
(c ) resolve any difficulty or dispute arising under this deed, the Plans or any
relevant Terms in any manner it sees fit in its discretion;
(d) subject to the Listing Rules, make variations in the application of any one
or all of the Plans, from time to time, as it considers is consistent with the
general nature of those Plans or as may be necessary or desirable as a result of
changing circumstances or changes in legislation; and
(e) delegate any of its powers, discretions and rights under this deed
(including any schedule and any Terms) to any person or body as it thinks fit.
16. AMENDMENT
16.1 Amendments
(a) Subject to clause 16.2, BHP Steel and the Trustee may, by supplemental deed,
amend this deed (including with retrospective effect).
(b) Without limiting the generality of paragraph (a), an amendment may be made
for the purpose of (or for purposes which include):
(i) complying with or conforming to present or future applicable law (including
any law governing or regulating the maintenance or operation of the Plans or
similar plans), or with or to the Listing Rules;
(ii) enabling participation in any one or all of the Plans by Employees resident
in any overseas jurisdiction consistently with securities, taxation and other
laws applicable in the overseas jurisdiction and otherwise appropriate to the
circumstances of those Employees in the overseas jurisdiction;
(iii) correcting any manifest error or mistake;
(iv) ensuring that the Plans achieve the anticipated tax outcomes for the BHP
Steel Group, the Trustee and the Participants;
(v) enabling the Participants generally (but not necessarily each Participant)
to receive a more favourable taxation treatment in respect of their
participation in any one or all of the Plans.
(vi) enabling the establishment of other employee share incentive plans for the
benefit of Employees or for other persons who provide services to the BHP Steel
Group.
16.2 Restriction on amendment power
No amendment may be made under clause 16.1:
(a) except in accordance with and in the manner (if any) required by the Listing
Rules;
(b) that would result in an infringement of any applicable law (including the
law against perpetuities).
17. TAXATION LIABILITY
17.1 Adjustments
The Trustee may in its discretion make such adjustments as it thinks fit to the
Trust Shares and benefits distributable to Participants so as to provide for, or
to pay, any taxes or other charges that accrue to the Trustee in respect of the
operation of the Plans.
17.2 No Liability
If a member of the BHP Steel Group becomes liable to pay any tax in relation to
Trust Shares or other moneys or entitlements given or paid by the Trustee on
behalf of, or in relation to a Participant, the Trustee must, if BHP Steel so
requests, deduct from any money otherwise payable to the Participant and pay to
BHP Steel, or other member of the BHP Steel Group which incurred the liability,
(or as BHP Steel may direct) on behalf of the Participant sufficient moneys to
reimburse any such liability (whether present or future).
17.3 Withholding Taxes
If BHP Steel or any member of the BHP Steel Group which is the employer or
former employer of an Employee ("Employer Company") is obliged as a result of or
in connection with the grant, exercise or transfer of Share Rights, or issue,
grant, purchase, transfer or sale of Trust Shares, to account to any tax
authority for income tax or employment taxes under any wage, withholding or
other arrangements or for any other tax, levy or charge of a similar nature,
then the Participant must reimburse the Employer Company for the amounts paid or
payable to the tax authority in connection with those Share Rights or Trust
Shares.
17.4 Reimbursement
Where Clause 0 applies, the Participant may not exercise the Share Rights, and
the Trustee is not obliged to transfer any Trust Shares to the Participant or
sell Trust Shares on behalf of the Participant unless the Employer Company or
BHP Steel has notified the Trustee that it is satisfied that arrangements have
been made for reimbursement by the Participant. The arrangements that the
Employer Company or BHP Steel may make include, without limitation, the sale of
Trust Shares held by the Trustee on behalf of that Participant.
18 RIGHTS OF EMPLOYEES
Except as expressly provided in this deed, or any applicable Terms, nothing in
this deed, or any applicable Terms:
(a) confers on any Employee the right to receive any Shares;
(b) confers on any Participant the right to continue as an employee of any BHP
Steel Group company;
(c ) affects any rights which any BHP Steel Group company may have to terminate
the employment of any Employee;
(d) may be used to increase damages in any action brought against any BHP Steel
Group company in respect of any such termination; or
(e) confers on an Employee any expectation to become a Participant.
19 CONNECTION WITH OTHER PLANS
Participation by an Employee in a Plan does not affect, and is not affected by,
eligibility to participate in any other Plan or other employee incentive scheme
operated by BHP Steel unless the terms of that scheme provide otherwise.
20. ACKNOWLEDGEMENT
BHP Steel acknowledges that it does not have a beneficial interest in any Trust
Assets or Trust Shares.
21 NOTICES
Any notice, demand, consent or other communication (the "Notice") given or made
under this deed:
(a) may be made by electronic means acceptable to BHP Steel or otherwise in
writing signed by a person duly authorised by the sender;
(b) when in writing, must be delivered to the intended recipient by prepaid post
or by hand or fax to the address or fax number below or the address or fax
number last notified by the intended recipient to the sender:
(i) to BHP Steel: Level 11, 120 Collins Street, Melbourne, Victoria
Attention: The Secretary
Fax No: 03 9666 4118
(ii) to the Trustee Level 11, 120 Collins Street, Melbourne, Victoria
Attention: The Secretary
Fax No: 03 9666 4118
(c) will be taken to be duly given or made:
(i) in the case of delivery by electronic means, as determined by BHP Steel and
the Trustee from time to time;
(ii) in the case of delivery in person, when delivered;
(iii) in the case of delivery by post, two business days after the date of
posting; and
(iv) in the case of fax, on receipt by the sender of a transmission control
report from the despatching machine showing the relevant number of pages and the
correct destination fax machine number or name of recipient and indicating that
the transmission has been made without error,
but if the result is that a Notice would be taken to be given or made on a day
that is not a business day in the place to which the Notice is sent or is later
than 5.00pm (local time) it will be taken to have been duly given or made at the
commencement of business on the next business day in that place.
22. LAW
This deed is governed by the laws of Victoria.
SCHEDULE 1
LONG TERM INCENTIVE PLAN
The parties agree that the provisions of this schedule, together with the
General Provisions of this Deed, shall comprise the rules of the BHP Steel Long
Term Incentive Plan.
In the event of any inconsistency between the General Provisions and the other
provisions of this deed, this schedule is to prevail.
Unless the context otherwise requires, in this schedule, a reference to a clause
is to a clause of this schedule.
1. OFFER OF SHARE RIGHTS
1.1 Determining participation
(a) In its discretion, BHP Steel may from time to time nominate any Employee for
participation in the BHP Steel LTIP and determine the number of Share Rights to
be offered or granted to the Employee by the Trustee.
(b) In making its determination BHP Steel may take into account any matter which
it considers relevant including, but not limited to, the position in the BHP
Steel Group held or to be held by the Employee, the nature of the Employee`s
employment arrangements with the BHP Steel Group, the contribution made by, the
potential contribution of, the Employee to the BHP Steel Group (or any member of
it) and |
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