DEED OF RELEASE, TERMINATION AND SETTLEMENT

 

 

 

 

 

 

 

 

 

 

 

Fortescue Metals Group Ltd (ABN 57 002 594 872) of Level 2, 87 Adelaide Terrace, East Perth, WA 6004 (Fortescue);

Chichester Metals Pty Ltd (ABN 83 109 264 262) of Level 2, 87 Adelaide Terrace, East Perth, WA 6004 (Chichester);

John Andrew Henry Forrest of Level 2, 87 Adelaide Terrace, East Perth, WA 6004 (Forrest);

Leucadia National Corporation of 315 Park Avenue South, New York, NY 10010 United States of America (Leucadia); and

Baldwin Enterprises Inc of 315 Park Avenue South, New York, NY 10010 United States of America (Baldwin).

(A)  

By a subscription agreement executed on or about 15 July 2006 between Fortescue, Chichester and Leucadia (Subscription Agreement) amongst other things, Leucadia agreed that it or one of its Related Entities would subscribe for certain shares in Fortescue and Notes to be issued in accordance with the Note Deed Poll.

(B)  

On or about 18 July 2006 Baldwin, a Related Entity of Leucadia, subscribed for and was issued Notes together with Note Certificates for a principal amount of US$100 million and was entered in the Register as the holder of those Notes (Baldwin Notes).

(C)  

The Baldwin Notes are repayable in full on 18 August 2019.

(D)  

The parties hereto now desire

(i)  

to effect the early redemption of the Baldwin Notes in accordance with this deed;

(ii)  

to release each other absolutely from all claims in relation to the Baldwin Notes, the Note Deed Poll and Subscription Agreement;

(iii)  

to settle the Court Proceedings in accordance with the terms of this Deed;

(iv)  

to release each other absolutely from all Released Claims.

1.1  

Capitalised terms defined or incorporated in the Note Deed Poll have, unless expressly defined in this Deed, the same meaning in this Deed.  In this Deed:

(a)  

the definition of "Related Entity" as defined or incorporated in the Note Deed Poll;

(b)  

the present and former directors, officers, servants, contractors and agents of each Related Entity jointly and severally; and

(c)  

the present and former directors, officers, servants, contractors and agents of each of Fortescue, Chichester, Forrest, Leucadia and Baldwin jointly and severally.

1.2  

The provisions of clause 1.2 (Interpretation) of the Note Conditions apply to this Deed as though they were set out in full in this Deed except that references to the Note Conditions are to be construed as references to this Deed.

(a)  

The parties agree that the Condition is for the benefit of Fortescue and Chichester and can only be waived by Fortescue and Chichester by notice in writing to the other parties.

(b)  

Where the Condition is waived in accordance with this clause 2.3, the Condition will be taken to have been satisfied by such waiver.

(a)  

except for this clause 2.4, clause 12 and clauses 14 through 17, all the provisions of this agreement will lapse and cease to have effect; and

(b)  

neither the lapsing of those provisions nor their ceasing to have effect will affect any accrued rights or liabilities of either party in respect of specific performance or damages for non-performance of any obligation under this agreement falling due for performance before such lapse and cessation.

(a)  

that party has given at least 3 Business Days' notice to the other party of its intention to terminate this Deed; and

(b)  

the Condition has not been waived in accordance with clause 2.3 prior to the termination of this Deed.

(a)  

Settlement of the Notes is conditional on each of Leucadia, Baldwin, Fortescue and Chichester complying with all of their respective obligations under this clause 4.

(b)  

If a party (Defaulting Party) fails to satisfy its obligations under this clause 4 on the day and at the place and time for Settlement then any other party (Notifying Party) may give the Defaulting Party a notice requiring the Defaulting Party to satisfy those obligations within a period of 3 Business Days from the date of the notice and declaring time to be of the essence.

(c)  

If the Defaulting Party fails to satisfy those obligations within those 3 Business Days the Notifying Party may, without limitation to any other rights it may have, terminate this agreement by giving written notice to the Defaulting Party.

(a)  

there is no obligation on any party to undertake or perform any of the other actions;

(b)  

to the extent that such actions have already been undertaken, the parties must do everything reasonably required to reverse those actions; and

(c)  

each party must return to the other all documents delivered to it under this clause 4, and must each repay to the other all payments received by it under this clause 4, without prejudice to any other rights any party may have in respect of that failure.

(a)  

the financial accommodation which was the subject of the Note Certificate having been repaid in full, the Baldwin Note, Note Deed Poll and Note Conditions are each terminated and each party releases each other party from all liability and obligations in connection with or arising under the Baldwin Note, Note Deed Poll and Note Conditions;

(b)  

the Subscription Agreement is terminated and each party releases each other party from all liability and obligations in connection with or arising under the Subscription Agreement.

(a)  

the Disputes;

(b)  

the underlying facts relating to the Disputes;

(c)  

the Court Proceedings;

(d)  

the Baldwin Note, Note Deed Poll and the Subscription Agreement;

(e)  

the circumstances relating to Baldwin's subscription for the Baldwin Notes; and

(f)  

Any other matters regarding the relationships between the parties or the investments by Leucadia and Baldwin in Fortescue or Chichester.

(a)  

With effect from the Settlement Time, each party hereby agrees, on behalf of itself and on behalf of its Related Entities not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against the other party or its Related Entities any action, suit or other proceeding arising out of or in connection with or concerning the Released Claims, in this jurisdiction or any other, except for the sole purpose of enforcing the terms of this Deed.

(b)  

This Deed may be pleaded as a full and complete defence by any party to this Deed or their Related Entities to any action arising out of or in connection with or concerning the Released Claims commenced by any other party to this Deed or their Related Entities.

(a)  

This deed is entered into in connection with the compromise of disputed matters and in the light of other considerations. It is not, and shall not be represented or construed by any party as, an admission of liability or wrongdoing on the part of any party to this deed or any other person or entity.

(b)  

Each of Leucadia and Baldwin, on the one hand, and Fortescue, Chichester and Forrest, on the other hand, hereby agree to issue, at the Settlement Time, a public retraction of any and all previous disparaging, accusatory and negative statements and comments made publicly or privately regarding the conduct or good character of the other party with respect to the entry into the Subscription Agreement, the Note Deed Poll and the matters subject of the Disputes and Court Proceedings, and each party hereby agrees that the other may make a public statement regarding such retraction after the Settlement Time.

(a)  

other than Forrest, it is a corporation registered (or taken to be registered) and validly existing under the laws of its place of incorporation;

(b)  

it has the power and authority to enter into and perform its obligations under this Deed;

(c)  

it has taken all necessary action to authorise the execution, delivery and performance of this Deed; and

(d)  

the execution, delivery and performance by it of this Deed does not and will not violate, breach, or result in a contravention of any law, regulation or authorisation, or its constitution.

EXECUTED by FORTESCUE METALS GROUP LIMITED in accordance with section 127 of the Corporations Act 2001 (Cth):

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Neville J. Power

 

 

Mark Thomas

Name of director

Name of company secretary

 

 

/s/ Neville J. Power

 

 

/s/ Mark Thomas

Signature of director

Signature of company secretary

EXECUTED by CHICHESTER METALS PTY LIMITED in accordance with section 127 of the Corporations Act 2001 (Cth):

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Neville Power

 

 

Mark Thomas

Name of director

Name of company secretary

 

 

/s/ Neville Power

 

 

/s/ Mark Thomas

Signature of director

Signature of company secretary

EXECUTED by JOHN ANDREW HENRY FORREST in the presence of:

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/s/ Christine Nicolau

 

 

/s/ John Andrew Henry Forrest

Signature of witness

John Andrew Henry Forrest

 

 

Christine Nicolau

Name of witness

SIGNED for and on behalf of LEUCADIA NATIONAL CORPORATION by its duly authorised officer in the presence of:

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/s/ Laura Ulbrandt DiPierro

 

 

/s/ Joseph A. Orlando

Signature of witness

Signature of authorised officer

 

 

Laura Ulbrandt DiPierro

 

 

Joseph A. Orlando

Name of witness

Name of authorised officer

SIGNED for and on behalf of BALDWIN ENTERPRISES INC by its duly authorised officer in the presence of:

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/s/ Laura Ulbrandt DiPierro

 

 

/s/ Joseph A. Orlando

Signature of witness

Signature of authorised officer

 

 

Laura Ulbrandt DiPierro

 

 

Joseph A. Orlando

Name of witness

Name of authorised officer