ContentsPage 1Defined terms and interpretation12Condition precedent13Agreed public announcements34Facilitating the Bid35Terms of the Offer56Recommendation87Conduct of business, access and board changes98Exclusivity and Disposal standstill129Public announcements1410Representations and Warranties1411Releases1612Termination1713Confidentiality1814Duty, costs and expenses1815GST1816Notices1917General20Schedule 1 Dictionary23 Schedule 2 Agreed Bid Terms33Schedule 3 GrainCorp securities37Execution page 38Attachment A GrainCorp Public AnnouncementAttachment B ADM Public Announcement

Archer Daniels Midland Company

GrainCorp Limited

	Parties
		1	Archer Daniels Midland Company of 4666 Faries Parkway, Decatur, Illinois 62526 USA (ADM)
		2	GrainCorp Limited ACN 057 186 035 of Level 26, 175 Liverpool Street, Sydney NSW 2000 (GrainCorp)

		(c)	During the Due Diligence Condition Period, GrainCorp must:
			(i)	provide to the Nominated Representatives access to the Due Diligence Materials on a 24 hour a day basis;
			(ii)	provide assistance as is reasonably (having regard to the period in which the review of the Due Diligence Materials is to be conducted) requested by ADM for the purposes of ADM’s review of the Due Diligence Materials;
			(iii)	ensure GrainCorp senior executives and management are available for interviews with ADM in accordance with the interview schedule outlined in the Due Diligence Plan;
			(iv)	provide access to the GrainCorp sites that have been specified in the Due Diligence Plan in accordance with the site visit schedule outlined in the Due Diligence Plan;

 

			(v)	respond to reasonable questions by ADM that are reasonably related to the Due Diligence Materials in accordance with the Due Diligence Plan; and
			(vi)	commit the necessary resources in order to ensure it can meet its obligations under clauses 2(c)(i) to 2(c)(v) above.
		(d)	ADM may give a Termination Notice to GrainCorp at any time before the Termination Notice Deadline if:
			(i)	ADM, acting reasonably and in good faith, identifies one or more matters in the Due Diligence Information which:
				(A)	were not known to ADM before entering into this deed; or
				(B)	were known to ADM before entering into this deed but the import or significance of which to ADM would have been materially different if considered together with one or more additional matters identified by ADM in the Due Diligence Information which were not known to it before entering into this deed,
				and which would have caused it to either:
				(C)	not be prepared to make the Bid; or
				(D)	only be prepared to make the Bid on terms (taken as a whole) materially less favourable to GrainCorp Shareholders than the Agreed Bid Terms (taken as a whole); or
			(ii)	GrainCorp materially breaches clause 2(b) or 2(c) of this deed.
		(e)	ADM acknowledges and agrees that:
			(i)	the only circumstances in which it may give a Termination Notice are the circumstances contemplated in clause 2(d), and if it purports to give a Termination Notice in any other circumstance (including by purporting to give a Termination Notice after the Termination Notice Deadline), it will be deemed that a Termination Notice has not been given under this clause 2; and

		(b)	To avoid doubt and subject to clause 8.2 (if applicable), any GrainCorp Director may withdraw or change his or her Recommendation in the event that:
			(i)	a Superior Proposal emerges;
			(ii)	the Independent Expert concludes in the Independent Expert’s Report (or in any written update to that report) that the Offer is either not fair or not reasonable;
			(iii)	any of the Regulatory Conditions have not been satisfied or waived by the 31 December Deadline; or
			(iv)	he or she ceases to be of the view that the Offer is in the best interests of GrainCorp Shareholders.
		(c)	Subject to ADM not giving a Termination Notice to GrainCorp under clause 2, GrainCorp will ensure that any public announcement issued by it pursuant to clause 3(b) will set out the Recommendation of the GrainCorp Directors.

7	Conduct of business, access and board changes
	7.1	Conduct of business
		(a)	During the Covenant Period, GrainCorp must use reasonable endeavours to procure that the business of the GrainCorp Group is conducted in the ordinary course.
		(b)	Without limiting clause 7.1(a) and subject to the other parts of this clause 7.1, during the Covenant Period, GrainCorp must not and must procure that its Related Bodies Corporate do not:
			(i)	dispose or agree to dispose of any companies, businesses, assets (other than sales of inventory in the ordinary course of business) or entities (or any interest in any of the foregoing), the value or aggregate value (or, if greater, the price or aggregate price) of which exceeds $75 million, to any person other than a member of the GrainCorp Group;
			(ii)	acquire or agree to acquire any companies, businesses, joint ventures, partnerships or entities (or any interest in any of the foregoing), the value or aggregate value of which or consideration for which, exceeds $75 million, from any person other than a member of the GrainCorp Group;
			(iii)	other than in accordance with the Capital Expenditures Plan, commit to or undertake any capital expenditure in respect of an individual project where:
				(A)	such expenditure has resulted or would result in the amount of expenditure that has been committed to or undertaken in respect of that project by the GrainCorp Group following the date of this deed exceeding $25 million; or
				(B)	such expenditure has resulted or would result in the aggregate amount of such capital expenditures in respect of GrainCorp Group following the date of this deed exceeding $50 million;
			(iv)	enter into any contract or commitment (other than a commodity supply contract or a freight or haulage contract) involving expenditure of more than $20 million on an annual basis, other than any capital expenditure that would be permitted by clause 7.1(b)(iii);

 

 

 

			(v)	enter into any positions or contracts to manage trading risk other than in accordance with the policies and procedures approved in writing by ADM prior to execution of this deed;
			(vi)	either:
				(A)	enter into a new employment contract with a potential employee of the GrainCorp Group (other than to replace any person who has ceased to be an employee of the GrainCorp Group); or
				(B)	amend in any material respect an employment contract of an existing employee of the GrainCorp Group (other than as part of any annual salary review conducted in the ordinary course),
				where the total annual employment costs (including any bonus) of that potential or existing employee is more than $400,000;
			(vii)	settle any legal proceedings, claim, investigation, arbitration or other like proceeding where the amount claimed by or against a member of the GrainCorp Group exceeds $15 million; or
			(viii)	incur any indebtedness or issue any debt securities, other than:
				(A)	any draw down within existing limits of any existing debt facility;
				(B)	trade credit in the ordinary course of business;
				(C)	indebtedness to a member of the GrainCorp Group;
				(D)	renewing or replacing existing working capital or inventory facilities with facilities for substantially the same amount and term; or
				(E)	renewing or replacing any other existing debt facilities for no greater an amount than the amount of such existing facilities.
		(c)	Nothing in clause 7.1(a) or 7.1(b) restricts the ability of any member of the GrainCorp Group to act in a manner which:
			(i)	is required or permitted by this deed or the Transaction;
			(ii)	is required by law or by an order of a court or Governmental Agency; or
			(iii)	has been consented to in writing by ADM (such consent not to be unreasonably withheld).
		(d)	Notwithstanding any other provision of this deed (including clauses 7.1(a) and 7.1(b)), GrainCorp may:
			(i)	obtain director and officer run-off insurance in respect of the GrainCorp Directors (and former directors of GrainCorp) for a period of 7 years from the retirement date of each such director and on terms consistent with the past practice of GrainCorp;

 

 

 

			(ii)	issue or grant GrainCorp Share and Performance Rights:
				(A)	in accordance with, or in satisfaction of, existing contractual entitlements at the Announcement Date; or
				(B)	in a manner consistent with the past practice of GrainCorp (including granting GrainCorp Share and Performance Rights taking the form of deferred cash awards),
				provided that any GrainCorp Share and Performance Rights so issued or granted must not require GrainCorp to issue any GrainCorp Shares (whether upon exercise or vesting or otherwise);
			(iii)	procure (through the exercise of discretion conferred on the GrainCorp Board where the GrainCorp Board considers it appropriate in the circumstances to exercise such discretion) that GrainCorp Share and Performance Rights vest on a change of control (as defined in the relevant GrainCorp Employee Share Plan);
			(iv)	if there is a Change of Control in a particular Financial Year (Relevant Financial Year), pay such cash bonus to any employee of the GrainCorp Group as the GrainCorp Board considers appropriate in the circumstances, provided that, the amount of such cash bonus must be:
				(A)	based on the proportion of the Relevant Financial Year that has elapsed at the time of the Change of Control;
				(B)	consistent with the performance of that employee during the elapsed part of the Relevant Financial Year; and
				(C)	consistent with the past practice of GrainCorp with respect to the payment of cash bonuses other than in respect of timing,
				and provided that this clause 7.1(d)(iv) will not apply to any GrainCorp Share and Performance Right;
			(v)	take, or procure the taking of, any action (including undertaking or agreeing to undertake capital expenditure) contemplated by the Capital Expenditures Plan ;
			(vi)	fund any Permitted Dividend by any means determined by the GrainCorp Board, which may involve (without limitation):
				(A)	utilising existing cash reserves and/or drawing down funds from existing debt facilities; and/or
				(B)	agreeing to and utilising new debt facilities and/or other sources of funding on arms length terms; and
			(vii)	subject to clauses 5.5(d) and 5.5(e) (if applicable), announce, determine as payable, declare or pay any Permitted Dividend.
		(e)	To avoid doubt, no expenditure contemplated by the Capital Expenditures Plan will count towards the calculation of any threshold in clause 7.1.
		(f)	In this deed, unless the context requires otherwise, references to the business of the GrainCorp Group are to that business taken as a whole.

 

 

	7.2	Access
		From the date on which the Offer is declared or becomes unconditional until the end of the Covenant Period, GrainCorp must use reasonable endeavours to procure that, where requested, ADM is provided with reasonable access to information, premises and senior executives of the GrainCorp Group, provided that such access would not, in the opinion of GrainCorp (acting in good faith), cause undue disruption to the business of the GrainCorp Group.
	7.3	Board changes
		(a)	Subject to clause 7.3(b), GrainCorp must procure that, no later than five Business Days after a Change of Control, the following things happen:
			(i)	those persons nominated by ADM are appointed to the GrainCorp Board and the boards of other members of the GrainCorp Group, provided that:
				(A)	such persons sign consents to act as a director of the relevant member(s) of the GrainCorp Group in a form satisfactory to GrainCorp (acting reasonably); and
				(B)	such consents to act have been provided to GrainCorp; and
			(ii)	those GrainCorp Directors and directors of other members of the GrainCorp Group, as nominated by ADM, resign as a director of the relevant member(s) of the GrainCorp Group without any liability to such member(s).
		(b)	GrainCorp’s obligations under clause 7.3(a) are subject to the following:
			(i)	until the end of the Offer Period, there must be at least three members of the GrainCorp Board who are not nominees of ADM or its Associates;
			(ii)	ADM must procure that its nominees on the GrainCorp Board do not participate in any discussions or decisions of that board which relate to the Bid during the Offer Period; and
			(iii)	GrainCorp will not be required to procure any change to the board of any member of the GrainCorp Group:
				(A)	if that change would result in the composition of that board ceasing to comply with the constitution of the relevant company or any applicable law; or
				(B)	to the extent such change involves a Cargill Nominee or requires the consent or approval of Cargill or any Related Body Corporate of Cargill.

 

8	Exclusivity and Disposal standstill
	8.1	No-shop
		(a)	During the Exclusivity Period, GrainCorp must ensure that neither it nor any of its Representatives directly or indirectly invites, initiates or solicits any Competing Proposal or any approach, inquiry or expression of interest which would reasonably be expected to lead to a Competing Proposal.

 

 

 

		(b)	Nothing in clause 8.1(a) prevents GrainCorp from:
			(i)	continuing to make normal presentations to, and continuing to respond to enquiries from, brokers, portfolio investors and analysts in the ordinary course in relation to the business of the GrainCorp Group generally; or
			(ii)	taking or procuring any action in relation to any Competing Proposal that is not invited, initiated or solicited in breach of clause 8.1(a), provided that this will not derogate from GrainCorp’s obligations under clause 8.2.
	8.2	ADM opportunity to match
		During the Exclusivity Period, GrainCorp:
		(a)	must not enter into any legally binding agreement or arrangement in relation to the implementation of any Competing Proposal (excluding any agreement or arrangement the purpose of which is to regulate the disclosure of confidential information); and
		(b)	must procure that the GrainCorp Board collectively does not, and that the GrainCorp Directors individually do not, change or withdraw their Recommendation to publicly recommend a Competing Proposal,
		unless:
		(c)	GrainCorp has provided ADM with written notice of the material terms and conditions of the Competing Proposal, including price and the identity of the relevant person making or proposing the Competing Proposal; and
		(d)	ADM has not, within two days after ADM’s receipt of the notification given by GrainCorp under clause 8.2(c), given written notice to GrainCorp in respect of a proposal which the GrainCorp Board considers, acting in good faith and after taking advice from GrainCorp’s legal and financial advisers, would, if implemented in accordance with its terms, result in an outcome for GrainCorp Shareholders that is as favourable as or more favourable than the outcome that would result from implementation of the Competing Proposal.
	8.3	Disposal standstill
		From the date of this deed until 31 December 2013, ADM must not, and must procure that its Associates do not, without the prior written consent of GrainCorp, Dispose of, or agree or offer to Dispose of, any GrainCorp Shares in which it has a Relevant Interest as at the date of this deed.
	8.4	Legal advice
		GrainCorp acknowledges that it has received legal advice on this deed and the operation of this clause 8.

 

 

9	Public announcements
		(a)	Subject to clause 9(b), before a party makes any public announcement where the predominant (but not necessarily the sole) focus of that public announcement is the Bid or the subject matter of this deed, that party must:
			(i)	provide the other party with a draft copy of, and a reasonable opportunity to comment on, such public announcement; and
			(ii)	(acting in good faith) consider any comments provided by the other party or its Representatives.
		(b)	A party will only be required to comply with clause 9(a) if and to the extent that compliance would not, in the reasonable opinion of that party, be likely to result in that party breaching its continuous disclosure obligations or any other applicable law, rule or regulation.

 

10	Representations and Warranties
	10.1	ADM Representations and Warranties
		ADM represents and warrants to GrainCorp that:
		(a)	(validly existing) it is a validly existing corporation registered under the laws of its place of incorporation;
		(b)	(power) it has full corporate power and lawful authority to execute, deliver and perform this deed;
		(c)	(corporate action) it has taken all necessary corporate action to authorise the entry into this deed and has taken or will take all necessary corporate action to authorise the performance of this deed;
		(d)	(binding) this deed is a valid and binding obligation enforceable against it in accordance with its terms; and
		(e)	(performance) the execution and performance by it of this deed did not and will not violate or breach any provision of:
			(i)	a law or treaty or a judgment, ruling, order or decree binding on it; or
			(ii)	its constituent documents.
	10.2	GrainCorp Representations and Warranties
		GrainCorp represents and warrants to ADM that:
		(a)	(validly existing) it is a validly existing corporation registered under the laws of its place of incorporation;
		(b)	(power) it has full corporate power and lawful authority to execute, deliver and perform this deed;

 

 

		(c)	(corporate action) it has taken all necessary corporate action to authorise the entry into this deed and has taken or will take all necessary corporate action to authorise the performance of this deed;
		(d)	(binding) this deed is a valid and binding obligation enforceable against it in accordance with its terms;
		(e)	(performance) the execution and performance by it of this deed did not and will not violate or breach any provision of:
			(i)	a law or treaty or a judgment, ruling, order or decree binding on it; or
			(ii)	its constitution;
		(f)	(capital structure) as at the date of this deed, its capital structure is as set out in Schedule 3 and, other than as set out in Schedule 3:
			(i)	it has not issued any other GrainCorp Shares or other securities, rights or instruments which are still outstanding and which may convert into, or give the holder the right to be issued, GrainCorp Shares; and
			(ii)	it is not under any obligation to issue, and no person has any right to require or call for the issue of, any GrainCorp Shares or other securities, rights or instruments issuable by GrainCorp;
		(g)	(employee share plans) Schedule 3 sets out all GrainCorp Employee Share Plans as at the date of this deed; and
		(h)	(continuous disclosure) as at the date of this deed, it has complied in all material respects with its continuous disclosure obligations under the Listing Rules and the Corporations Act, and is not withholding any information from disclosure relying on Listing Rule 3.1A (other than information in relation to the proposed Transaction).
	10.3	Qualifications to GrainCorp Representations and Warranties
		The GrainCorp Representations and Warranties are subject to matters which:
		(a)	have been set forth in the GrainCorp Disclosure Letter; or
		(b)	have been consented to in writing by ADM.
	10.4	Severability of Representations and Warranties
		Each Representation and Warranty is severable.
	10.5	Timing of Representations and Warranties
		Except for the GrainCorp Representations and Warranties in clauses 10.2(f), 10.2(g) and 10.2(h), which are only given at the date of this deed, each Representation and Warranty is given:
		(a)	at the date of this deed; and
		(b)	at the Termination Notice Deadline (provided that ADM does not give a Termination Notice to GrainCorp under clause 2).

 

 

11	Releases
	11.1	Release of GrainCorp Indemnified Parties
		(a)	Subject to clause 11.1(b), ADM releases any and all rights that it may have, and agrees with GrainCorp that it will not make any claim, against any GrainCorp Indemnified Party in connection with the Transaction, including in respect of:
			(i)	any breach of any covenant, representation or warranty given by GrainCorp under this deed;
			(ii)	any disclosures containing any statement which is false or misleading (whether by omission or otherwise); or
			(iii)	any failure to provide information,
			except where a GrainCorp Indemnified Party has not acted in good faith, has acted dishonestly or has engaged in wilful misconduct.  To avoid doubt, nothing in this clause 11.1(a) limits the rights of ADM to terminate this deed under clause 12 nor the rights that GrainCorp may have against any GrainCorp Indemnified Party.
		(b)	The release in clause 11.1(a) is subject to any restriction imposed by law and will be read down to the extent that any such restriction applies.
		(c)	GrainCorp receives and holds the benefit of clause 11.1(a) as trustee for the GrainCorp Indemnified Parties.
	11.2	Release of ADM Indemnified Parties
		(a)	Subject to clause 11.2(b), GrainCorp releases any and all rights that it may have, and agrees with ADM that it will not make any claim, against any ADM Indemnified Party in connection with the Transaction, including in respect of:
			(i)	any breach of any covenant, representation or warranty given by ADM under this deed;
			(ii)	any disclosures containing any statement which is false or misleading (whether by omission or otherwise); or
			(iii)	any failure to provide information,
			except where an ADM Indemnified Party has not acted in good faith, has acted dishonestly or has engaged in wilful misconduct.  To avoid doubt, nothing in this clause 11.2(a) limits the rights of GrainCorp to terminate this deed under clause 2 or 12.
		(b)	The release in clause 11.2(a) is subject to any restriction imposed by law and will be read down to the extent that any such restriction applies.
		(c)	ADM receives and holds the benefit of clause 11.2(a) as trustee for the ADM Indemnified Parties.

 

 

12	Termination
	12.1	Termination by either party
		Either party may terminate this deed by written notice to the other party if:
		(a)	the other party commits a material breach of this deed, provided that:
			(i)	it has given written notice to the other party setting out the relevant circumstances and stating an intention to terminate this deed; and
			(ii)	the relevant circumstances have continued to exist for five Business Days from the time such notice is given; or
		(b)	the Offers are withdrawn in accordance with section 652B of the Corporations Act.
		Termination under clause 12.1(a) will take effect at the expiry of the period referred to in clause 12.1(a)(ii), and termination under clause 12.1(b) will take effect immediately upon notice being given.
	12.2	Termination by ADM
		ADM may terminate this deed, with immediate effect, by notice in writing to GrainCorp if:
		(a)	any of the GrainCorp Directors:
			(i)	publicly withdraw or change their Recommendation; or
			(ii)	publicly recommend a Competing Proposal; or
		(b)	GrainCorp enters into any implementation (or similar) agreement in relation to a Competing Proposal.
	12.3	Termination by GrainCorp
		GrainCorp may terminate this deed, with immediate effect, by notice in writing to ADM if:
		(a)	a majority of the GrainCorp Directors:
			(i)	publicly withdraw or change their Recommendation; or
			(ii)	publicly recommend a Competing Proposal,
			in any of the circumstances contemplated in clause 6(b); or
		(b)	any of the Regulatory Conditions is not satisfied by the 31 December Deadline.
	12.4	Automatic termination
		This deed will automatically terminate on the End Date.

 

 

	12.5	Effect of termination
		If this deed is terminated in accordance with clause 2(f) or this clause 12, this deed will cease to have force and effect without any liability or obligation on the part of any party, except that:
		(a)	this clause 12.5 and clauses 1, 8.3, 11, 14, 15, 16 and 17, and Schedule 1, will survive termination; and
		(b)	each party will retain any rights and remedies that accrued prior to termination, including any rights and remedies in respect of any past breach of this deed or (if applicable) in respect of the breach giving rise to termination.

13	Confidentiality
		Each party acknowledges and agrees that nothing in this deed derogates from the rights and obligations of the parties under the Confidentiality Deed, provided that this deed prevails to the extent of any inconsistency with the Confidentiality Deed.

 

14	Duty, costs and expenses
	14.1	Stamp duty
		ADM:
		(a)	must pay all stamp duties and any related fines and penalties in respect of this deed and any transaction contemplated by it (including the Offers); and
		(b)	indemnifies GrainCorp against any liability arising from or in connection with any failure by it to comply with clause 14.1(a).
	14.2	Costs and expenses
		Each party must pay its own costs and expenses in connection with the negotiation, preparation, execution and performance of this deed and the proposed, attempted or actual implementation of the Transaction.

 

15	GST
		(a)	If a party makes a supply under or in connection with this deed in respect of which GST is payable, the consideration for the supply but for the application of this clause 15(a) (GST exclusive consideration) is increased by an amount (additional GST amount) equal to the GST payable on the supply.
		(b)	If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by the amount equal to any input tax credit the other party, or the representative member of the GST group of which the other party is a member, is entitled to with respect to the loss, cost or expense, and then increased in accordance with clause 15(a), if such amount is consideration for a taxable supply made under or in connection with this deed.
		(c)	A party need not make a payment of the additional GST amount until it receives a tax invoice or adjustment note (as appropriate) for the supply to which the payment relates.

 

(d)

Terms or expressions used in this clause 15 which are not otherwise defined in this deed have the meaning given to them in the GST Law.

 

		(b)	Subject to clause 16(c), a Notice is taken to be received:
			(i)	if sent by delivery, when it is delivered;
			(ii)	if sent by post, three days after posting (or seven days after posting if sent from one country to another);
			(iii)	if sent by fax, at the time shown in the transmission report produced by the machine from which the fax was sent as the time the fax was sent in its entirety; or
			(iv)	if sent by email:
				(A)	when the sender receives an automated message confirming delivery; or
				(B)	four hours after the time sent (as recorded on the device from which the email was sent), provided that the sender does not receive an automated message that the email has not been delivered,
				whichever happens first.
		(c)	If a Notice is taken to be received under clause 16(b):
			(i)	before 9:00am on a Business Day, it will be taken to be received at 9:00am on that Business Day; or
			(ii)	after 5:00pm on a Business Day or on a non-Business Day, it will be taken to be received at 9:00am on the next Business Day.

 

17	General
	17.1	Cumulative rights
		The rights, powers and remedies of a party under this deed are cumulative with the rights, powers or remedies provided by law independently of this deed.
	17.2	Waiver
		(a)	Failure to exercise or enforce, a delay in exercising or enforcing, or the partial exercise or enforcement of any right, power or remedy provided by law or under this deed by any party does not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this deed.
		(b)	Any waiver or consent given by a party under this deed is only effective and binding on that party if it is given or confirmed in writing by that party.

 

 

 

 

	17.11	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 may attempt or purport to do so, without the prior written consent of the other party.
	17.12	No merger
		The rights and obligations of the parties do not merge on completion of the Transaction.  They survive the execution and delivery of any assignment or other document entered into for the purpose of implementing the Transaction.

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1	Dictionary

 

 

 

 

 

	(e)	for a calendar month to be an Applicable Month, each calendar day of that calendar month must be before the first to occur of the dates specified in paragraphs (a), (b) and (c) of this definition.
	Applicable Period means, in respect of the Earnings Dividend, the period comprising each Applicable Month to which the Earnings Dividend relates.
	ASIC means the Australian Securities and Investments Commission.
	Associate has the meaning it has in section 12 of the Corporations Act as if subsection (1) of that section included a reference to this deed.
	ASX means ASX Limited (ACN 008 624 691) or the financial market operated by it known as the Australian Securities Exchange (as the context requires).
	ATO means the Australian Taxation Office.
	Bid means an off-market takeover bid by ADM (acting through ADM Australia) for all the GrainCorp Shares which ADM Australia does not already own under Chapter 6 of the Corporations Act.
	Bid Announcement Date means the date on which the Bid is announced by ADM.
	Bidder’s Statement means the bidder’s statement to be prepared by ADM in connection with the Bid in accordance with Chapter 6 of the Corporations Act.
	Business Day means a day on which retail banks are open for general business in each of Sydney, Australia and Illinois, USA, and excludes a Saturday, Sunday or public holiday in either of these places.
	Capital Expenditures Plan means, except to the extent agreed between the parties, the document of that name initialled by both parties prior to execution of this deed.
	Cargill means Cargill Australia Limited ACN 004 684 173.
	Cargill Nominee means any director of any member of the Allied Mills Group who is not a nominee of the GrainCorp Group.
	Change of Control will occur when each of the following has happened:
	(a)	the Offer has been declared or has become unconditional; and
	(b)	ADM Australia has acquired a Relevant Interest in more than 50% of the GrainCorp Shares.
	Comparable Company means a company or group of companies in the same businesses within Australia or the other major jurisdictions in which the GrainCorp Group operates.
	Competing Proposal means any expression of interest, proposal, offer or transaction which, if entered into or completed in accordance with its terms, would result in a Third Party:
	(a)	acquiring a Relevant Interest or such other legal or economic interest in 20% or more of the GrainCorp Shares;

 

 

 

 

	(b)	acquiring Control of or merging with GrainCorp; or
	(c)	acquiring, becoming the holder of or having a right to acquire or to acquire an economic interest in all or a substantial part (including through a joint venture or similar arrangement) of the business of the GrainCorp Group.
	Conditions means the conditions to the Offer set out in Schedule 2.
	Confidentiality Deed means the Confidentiality Deed between GrainCorp and ADM dated 22 April 2013.
	Control has the meaning given in section 50AA of the Corporations Act.
	Corporations Act means the Corporations Act 2001 (Cth).
	Covenant Period means the period:
	(a)	commencing on the date of this deed; and
	(b)	ending on the first to occur of:
		(i)	termination of this deed in accordance with clause 2 or 12; and
		(ii)	the End Date.
	Dictionary has the meaning given in clause 1.1(a).
	Discloser has the meaning given in clause 5.2(e).
	Dispose means, in relation to a GrainCorp Share, to sell, offer for sale, transfer, assign, swap, surrender, gift, create or allow to exist an option or trust over or otherwise deal with or dispose of that GrainCorp Share.
	Due Diligence Access means the interviews and site visits specified in the Due Diligence Plan.
	Due Diligence Commencement Date has the meaning given in clause 2(b).
	Due Diligence Condition Period means the period starting at 5:00pm (Sydney time) on the Due Diligence Commencement Date and ending at the Termination Notice Deadline or such later date as is agreed in writing between the parties.
	Due Diligence Information means:
	(a)	the Due Diligence Materials; and
	(b)	the information communicated to or ascertained by ADM or its Representatives during the Due Diligence Access.
	Due Diligence Materials means the information listed in the Due Diligence Plan.
	Due Diligence Plan means the document of that name initialled by both parties prior to execution of this deed.

 

 

 

 

	Earnings Dividend means the dividend of the kind described in paragraph (b) of the definition of “Permitted Dividend”.
	End Date means the time at which the Offer Period ends.
	Exclusivity Period means the period commencing on the date of this deed and ending at the conclusion of the Covenant Period.
	Financial Year means the period starting on 1 October in a particular calendar year and ending on 30 September in the next calendar year.
	FATA has the meaning given in paragraph (b) of Condition 1.
	Governmental Agency means any foreign or Australian government or governmental, semi-governmental, administrative, fiscal, statutory or judicial body, department, commission, authority, tribunal, agency or entity, or any minister of the Crown in right of the Commonwealth of Australia or any state, or any other federal, state, provincial, local or other government, whether foreign or Australian. It also includes any self-regulatory organisation established under statute or otherwise discharging substantially public or regulatory functions (including ASIC and the Takeovers Panel), and any stock exchange (including ASX and the New York Stock Exchange).
	GrainCorp Board means the board of directors of GrainCorp from time to time.
	GrainCorp Director means a director of GrainCorp.
	GrainCorp Disclosure Letter means the disclosure letter from GrainCorp to ADM signed by both parties prior to the execution of this deed.
	GrainCorp Employee Share Plans means:
	(a)	deferred equity plan;
	(b)	long term incentive plan;
	(c)	retention share plan;
	(d)	performance share rights plan;
	(e)	deferred employee share plan;
	(f)	non-executive directors share plan;
	(g)	gift plan; and
	(h)	any other plans of a like or similar kind,
	with each such plan being a GrainCorp Employee Share Plan.
	GrainCorp Group means, collectively, GrainCorp and each of its Related Bodies Corporate.
	GrainCorp Indemnified Party means a director, officer, employee or adviser of a member of the GrainCorp Group.

 

 

 

	GrainCorp Material Adverse Change means a diminution in the:
	(a)	consolidated net assets of the GrainCorp Group by at least $125 million; or
	(b)	the future recurring profit before income tax of the GrainCorp Group being reduced, or being reasonably likely to be reduced, by at least $25 million per year,
	except that a GrainCorp Material Adverse Change shall not include any event, change, condition, matter or thing which:
	(c)	was disclosed before the Bid Announcement Date by GrainCorp in a public filing with ASX or disclosed by GrainCorp to ADM or ADM Australia before the Bid Announcement Date, provided that any such disclosure was fairly disclosed (including, without limitation, in relation to the nature of the event, change, condition, matter or thing, as the case may be) and was not misleading or deceptive in any material respect;
	(d)	is required or permitted by or contemplated in this deed or is otherwise consented to in writing by ADM or ADM Australia;
	(e)	affects any industry in which the GrainCorp Group operates in a way that would not be reasonably expected to have a materially disproportionate effect on the GrainCorp Group relative to Comparable Companies;
	(f)	is reasonably likely to have resulted from, been caused by or occurred in response to or in connection with the announcement of the Offer or the completion (or expected completion) of any transaction contemplated by the Offer; or
	(g)	is, results from or is attributable to:
		(i)	any adoption, implementation or change in applicable law or any interpretation of applicable law by any Regulatory Body that would not be reasonably expected to have a materially disproportionate effect on the GrainCorp Group relative to Comparable Companies;
		(ii)	any change in global, national or regional political conditions (including the outbreak of war or hostilities, acts of terrorism and general civil unrest), Australian or international economic conditions, credit markets or capital markets or grain prices that would not be reasonably expected to have a materially disproportionate effect on the GrainCorp Group relative to Comparable Companies;
		(iii)	any change or movement in exchange rates;
		(iv)	any act of God, lightning, storm, flood, earthquake, cyclone, tidal wave or landslide;
		(v)	climatic or weather conditions in any region (or regions) in which the GrainCorp Group operates or does business;
		(vi)	mark to market movements in the commodities trading business carried on by the GrainCorp Group; or
		(vii)	projects or the establishment of new businesses or new places of business by a competitor of the GrainCorp Group or the entry of a new entrant to any market in which the GrainCorp Group operates, but only to the extent that information in relation to that competitor’s action or new entrant’s entry has been announced, or disclosed in media, before the Bid Announcement Date.

 

 

 

	If the consolidated assets of the GrainCorp Group are intentionally increased for the specific purpose of avoiding a breach of paragraph (a) of this condition, the $125 million threshold in that paragraph will be reduced by the amount of that intentional increase.
	GrainCorp Public Announcement means the announcement to be made by GrainCorp in accordance with clause 3(a), in the form set out at Attachment A.
	GrainCorp Share means a fully paid ordinary share in the capital of GrainCorp.
	GrainCorp Share and Performance Rights means:
	(a)	any rights granted under a GrainCorp Employee Share Plan which may entitle the holder to be issued (or otherwise acquire) GrainCorp Shares or to be paid a cash amount in lieu of being issued (or otherwise acquiring) GrainCorp Shares;
	(b)	any other rights granted by GrainCorp which may require GrainCorp to issue or transfer GrainCorp Shares or to pay a cash amount in lieu of issuing or transferring GrainCorp Shares; and
	(c)	any securities issued (or otherwise acquired) under a GrainCorp Employee Share Plan which are subject to vesting restrictions,
	with each such right or security being a GrainCorp Share and Performance Right.
	GrainCorp Shareholder means each person who is registered in the register of members of GrainCorp as the holder of one or more GrainCorp Shares from time to time.
	GrainCorp Representations and Warranties means the representations and warranties set out in clause 10.2.
	GST has the same meaning as given in the GST Law.
	GST exclusive consideration has the meaning given in clause 15(a).
	GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
	Implementation Deed means this document.
	Independent Expert means the party appointed by GrainCorp to prepare the Independent Expert’s Report.
	Independent Expert’s Report means the report to be prepared by the Independent Expert and included in the Target’s Statement.
	Listing Rules means the official listing rules of ASX.
	Nominated Representatives has the meaning given in clause 2(b).
	Notice has the meaning given in clause 16(a).

 

 

 

	Offer means the takeover offer by ADM (acting through ADM Australia) to acquire GrainCorp Shares under the Bid and Offers means each such offer made under the Bid.
	Offer Period means the period the Offer is open for acceptance.
	Outstanding Condition has the meaning given in clause 5.5(b).
	Permitted Dividends means:
	(a)	one or more dividends which are declared or determined by the GrainCorp Board on or after the Announcement Date and which, in aggregate, total up to $1.00 per Share (excluding the Earnings Dividend); and
	(b)	a dividend of an amount up to the Permitted Earnings Distribution, provided that only a single dividend under this paragraph (b) will be a Permitted Dividend,
	with each such dividend being a Permitted Dividend.
	Permitted Earnings Distribution means, in respect of the Applicable Period to which the Earnings Dividend relates, $0.035 per Applicable Month.
	Prescribed Occurrence means any of the following:
	(a)		GrainCorp converts all or any of the Shares into a larger or smaller number of shares under section 254H of the Corporations Act;
	(b)		GrainCorp or a Subsidiary of GrainCorp resolves to reduce its share capital in any way;
	(c)		GrainCorp or a Subsidiary of GrainCorp:
			(i)	enters into a buyback agreement;
			(ii)	or resolves to approve the terms of a buyback agreement, under subsections 257C(1) or 257D(1) of the Corporations Act;
	(d)		GrainCorp or a Subsidiary of GrainCorp issues shares or grants an option over its shares or agrees to make such an issue or grant such an option, excluding any such issue or grant (or agreement to do so) in accordance with, or satisfaction of, existing contractual entitlements at the Bid Announcement Date, pursuant to any GrainCorp Employee Share Plan or the vesting or exercise of any GrainCorp Share and Performance Right;
	(e)		GrainCorp or a Subsidiary of GrainCorp issues, or agrees to issue, convertible notes;
	(f)		GrainCorp or a Subsidiary of GrainCorp disposes, or agrees to dispose, of the whole, or a substantial part, of its business or property;
	(g)		GrainCorp or a Subsidiary of GrainCorp charges, or agrees to charge, the whole, or a substantial part, of its business or property;
	(h)		GrainCorp or a Subsidiary of GrainCorp resolves to be wound up, excluding, in the case of a Subsidiary of GrainCorp, a winding up in the ordinary course of business, including for the purposes of a solvent restructure of the GrainCorp Group;

 

 

 

 

	(i)	a liquidator or provisional liquidator of GrainCorp or of a Subsidiary of GrainCorp is appointed;
	(j)	the court makes an order for the winding up of GrainCorp or of a Subsidiary of GrainCorp;
	(k)	an administrator of GrainCorp or of a Subsidiary of GrainCorp is appointed under section 436A, 436B or 436C of the Corporations Act;
	(l)	GrainCorp or a Subsidiary of GrainCorp executes a deed of company arrangement; or
	(m)	a receiver, or a receiver and manager is appointed in relation to the whole, or a substantial part, of the property of GrainCorp or of a Subsidiary of GrainCorp.
	Prescribed Occurrences Condition means Condition 4.
	Recommendation has the meaning given in clause 6(a)(i).
	Recipient has the meaning given in clause 5.2(e).
	Register Date means the date set by ADM Australia under section 633(2) of the Corporations Act.
	Regulatory Approval Condition means Condition 7.
	Regulatory Body means any Australian or foreign government or a governmental, semi-governmental fiscal, regulatory or judicial body, department, commission, entity or authority. It includes, without limitation, a self-regulatory organisation established under statute or a stock exchange, ASIC, ASX and the ATO, but excludes the ACCC, FIRB and any other competition or foreign investment agencies around the world, and also excludes any industry regulatory agencies in any jurisdiction.
	Regulatory Conditions means Conditions 1, 2 and 7.
	Regulatory Matter means any action taken or proposed by, or any enquiries made by, a Governmental Agency in connection with the Transaction.
	Related Body Corporate has the meaning given in section 50 of the Corporations Act.
	Relevant Financial Year has the meaning given in clause 7.1(d)(iv).
	Relevant Interest has the meaning given in sections 608 and 609 of the Corporations Act.
	Representative of a person means an employee, agent, officer, director, adviser or financier of the person and, in the case of advisers and financiers, includes employees, officers and agents of the adviser or financier (as applicable).
	Representation and Warranty means, as applicable, an ADM Representation and Warranty or a GrainCorp Representation and Warranty, and Representations and Warranties means all of them.
	Required Regulatory Approvals has the meaning given in clause 5.2(a).

 

 

 

	Sensitive Confidential Information has the meaning given in clause 5.2(e).
	Subsidiary has the meaning given in section 9 of the Corporations Act.
	Superior Proposal means a bona fide, written Competing Proposal (with the percentage set forth in the definition of such term changed from 20% to 50%) which the GrainCorp Board considers, acting in good faith and after taking advice from GrainCorp’s legal and financial advisers, would, if implemented in accordance with its terms, result in a more favourable outcome for GrainCorp Shareholders than would result from implementation of the Transaction.
	Takeovers Panel means the Takeovers Panel constituted under the Australian Securities and Investments Commission Act 2001 (Cth).
	Target’s Statement means the target’s statement to be issued by GrainCorp under section 638 of the Corporations Act in response to the Bid.
	Termination Notice means the notice which may be given to GrainCorp by ADM in the circumstances contemplated in clause 2(d).
	Termination Notice Deadline means 5:00pm on the date that is seven days after the Due Diligence Commencement Date.
	Third Party means a person other than ADM or an Associate of ADM.
	Transaction means the acquisition by ADM (acting through ADM Australia) of all the GrainCorp Shares which ADM Australia does not already own under the Bid.
	Treasurer has the meaning given in paragraph (a) of Condition 1.
	USA means the United States of America.

 

 

 

---

The consideration offered under the Bid will be $12.20 for each GrainCorp Share.

 

The consideration will not be reduced by the amount of any Permitted Dividend or by the value of any franking credits attaching to any such dividend.

The Offer will be made subject to the conditions set out below.

 

 

 

 

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	Number of GrainCorp Shares on issue	Number of GrainCorp Shares referable to GrainCorp Share and Performance Rights
	228,855,628	●	Long term incentive plan – 491,493 (216,042 GrainCorp Share and Performance Rights scheduled to vest on 30 Sep 2013 and 275,451 GrainCorp Share and Performance Rights scheduled to vest on 30 Sep 2014
		●	Deferred equity plan – 241,061 (241,061 GrainCorp Share and Performance Rights scheduled to vest on 30 Sep 2013)
		●	Retention share plan – 171,903 (171,903 GrainCorp Share and Performance Rights scheduled to vest on 30 Sep 2013)
		●	Deferred employee share plan – 15,613 (15,613 GrainCorp Share and Performance Rights have vested)
		●	Non-executive directors share plan – 25,136 (25,136 GrainCorp Share and Performance Rights have vested)
		●	Gift plan – 3,376 (3,376 GrainCorp Share and Performance Rights have vested)
		●	Performance share rights plan – 0

 

 

 

  

---

 

 

 

Signed, sealed and delivered by Archer Daniels Midland Company:     /s/ Joseph D. Taets
Signature of authorised officer     Joseph D. Taets
Name of authorised officer (print)

 

 

 

Signed, sealed and delivered by GrainCorp Limited:     /s/ Alison Watkins		/s/ Andrew Horne
Signature of director     Alison Watkins		Signature of company secretary     Andrew Horne
Name of director (print)		Name of company secretary

 

 

 

NEWS RELEASE GrainCorp Limited (ASX: GNC)

26 April 2013

 

 

 

GrainCorp Limited (“GrainCorp”) advises that it has entered into a takeover bid implementation deed (“Implementation Deed”) with ADM under which ADM, subject to the satisfactory completion of limited confirmatory due diligence, will make an off-market takeover offer to acquire all the outstanding shares in GrainCorp not already held by ADM (“ADM Offer”).

 

If the ADM Offer proceeds, shareholders will receive $13.20 per share, comprising a cash payment of $12.20 per share under the ADM Offer and a dividend of $1.00 per share1. The dividend is expected to be fully franked, providing up to an additional $0.43 per share for those shareholders who can capture the full benefit from franking on the GrainCorp dividend. In the event regulatory approvals are not achieved by 1 October 2013 an additional fully franked dividend of 3.5 cents per share will be payable for each full month for the period between 1 October 2013 and the date the regulatory conditions have been satisfied or waived, subject to GrainCorp being profitable over that relevant period. Shareholders have also received a fully franked dividend of $0.35 per share since ADM’s initial approach was first announced on 22 October 2012.

 

If the ADM Offer proceeds, each GrainCorp Director has indicated that they would recommend the ADM Offer subject to:

 

 

 

 

 

 

__________________

1 Relates to dividends declared or determined by the Geelong Board on or after the date of this announcement.

 

 

 

 

Under the Implementation Deed, GrainCorp has permitted ADM to undertake a limited scope of confirmatory due diligence from 25 April 2013 to 2 May 2013. Subject to satisfactory completion of this due diligence on or before 2 May 2013, ADM will make a takeover offer on the terms described below.

 

Under the Implementation Deed, if ADM satisfactorily completes its limited due diligence, shareholders will receive $13.20 per share, comprising a cash payment of $12.20 per share under the ADM Offer and dividends totalling $1.00 per share.

 

The $13.20 payable to shareholders would represent a premium to the trading price of GrainCorp’s shares as indicated below:

 

 

If the ADM Offer is successfully completed, the total payments GrainCorp shareholders will receive from the time of ADM’s initial approach in October 2012 is $13.55 per share (a 15% increase on ADM’s initial proposal) plus up to an additional $0.58 per share for those shareholders who can capture the full benefit from franking on the GrainCorp dividends.

 

Key conditions to the ADM Offer include: