-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RvWrvVa1BS1k2UYpoOTAPZb6Xwewt5bF99mjEQFPbOVAKhYc9A1Pf2BNd0EaHQdg m0LaeGdVdTum/xfEs0cJRg== /in/edgar/work/0000950123-00-010513/0000950123-00-010513.txt : 20001115 0000950123-00-010513.hdr.sgml : 20001115 ACCESSION NUMBER: 0000950123-00-010513 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20001114 GROUP MEMBERS: BRIAN SHERMAN GROUP MEMBERS: EQUITILINK LTD GROUP MEMBERS: EQUITILINK U.S.A., INC. GROUP MEMBERS: LAURENCE FREEDMAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST AUSTRALIA FUND INC CENTRAL INDEX KEY: 0000779336 STANDARD INDUSTRIAL CLASSIFICATION: [0000 ] IRS NUMBER: 133304681 STATE OF INCORPORATION: MD FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-55117 FILM NUMBER: 763141 BUSINESS ADDRESS: STREET 1: 100 MUDBERRY STREET CITY: NEW YORK STATE: NJ ZIP: 07102-4077 BUSINESS PHONE: 2122141250 MAIL ADDRESS: STREET 1: 100 MUDBERRY STREET CITY: NEWARK STATE: NJ ZIP: 07102-4077 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EQUITILINK LTD CENTRAL INDEX KEY: 0001083114 STANDARD INDUSTRIAL CLASSIFICATION: [ ] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 190 GEORGE STREET LEVEL 3 STREET 2: SYDNEY NSW 2000 AUSTRALIA BUSINESS PHONE: 01161299502888 MAIL ADDRESS: STREET 1: 190 GEORGE STREET LEVEL 3 STREET 2: SYDNEY NWS 2000 AUSTRALIA SC 13D/A 1 y42614sc13da.txt AMENDMENT NO. 7 TO SCHEDULE 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 7)* The First Australia Fund, Inc. ------------------------------- (Name of Issuer) Common Stock ($.01 par value) ------------------------------ (Title of Class of Securities) 318652104 ------------ (CUSIP Number) Meredith M. Brown, Esq. Debevoise & Plimpton 875 Third Avenue New York, NY 10022 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) November 10, 2000 ------------------ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Section 240.13d-1(e), (f) or (g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the Schedule, including all exhibits. See Section 240.13d-7(b) for other parties to whom copies are to be sent. The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Laurence Freedman I.R.S. No. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS AF, PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Australia 7 SOLE VOTING POWER NUMBER OF SHARES 4,000 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 2,751,908(1) REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 4,000 10 SHARED DISPOSITIVE POWER 2,751,908 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,751,908 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% 14 TYPE OF REPORTING PERSON IN
- ------------------ (1) An affiliate of Messrs. Freedman and Sherman has agreed to sell 2,742,461 shares. 2 3 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Brian Sherman I.R.S. No. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS AF, PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TOITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Australia 7 SOLE VOTING POWER NUMBER OF SHARES 4,000 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 2,751,908(2) REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 4,000 10 SHARED DISPOSITIVE POWER 2,751,908 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,751,908 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.0% 14 TYPE OF REPORTING PERSON IN
- ------------------- (2) An affiliate of Messrs. Freedman and Sherman has agreed to sell 2,742,461 shares. 3 4 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON EquitiLink Limited I.R.S. No. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS WC, BK 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION New South Wales, Australia 7 SOLE VOTING POWER NUMBER OF SHARES None BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,068,950(3) REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH None 10 SHARED DISPOSITIVE POWER 1,068,950 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,068,950 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.2% 14 TYPE OF REPORTING PERSON HC, CO
- ------------------- (3) An affiliate of Messrs. Freedman and Sherman have agreed to sell 2,742,461 shares. 4 5 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON EquitiLink U.S.A., Inc. I.R.S. No. 521635331 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER NUMBER OF SHARES None BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 1,624,627(4) REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH None 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,624,627 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.5% 14 TYPE OF REPORTING PERSON CO
- ---------------------- (4) An affiliate of Messrs. Freedman and Sherman have agreed to sell 2,742,461 shares. 5 6 Statement on Schedule 13D This Amendment No. 7 amends and supplements Items 4, 5, 6 and 7 of the Schedule 13D of the Reporting Persons with respect to the shares of common stock, par value $.01 per share, of The First Australia Fund, Inc. (the "Fund") as originally filed on April 1, 1999 and as amended by Amendment No. 1 thereto filed on July 9, 1999, Amendment No. 2 thereto filed on August 27, 1999, Amendment No. 3 thereto filed on September 30, 1999, Amendment No. 4 thereto filed on October 21, 1999, Amendment No. 5 thereto filed on November 4, 1999 and Amendment No. 6 thereto filed on December 7, 1999. 1. Items 4 and 6 of the Schedule 13D are hereby amended by adding thereto the following: On November 10, 2000, EquitiLink Holdings Limited, EquitiLink Limited, EquitiLink International Management Limited and EquitiLink U.S.A., Inc. (the "Sellers") entered into a Stock Purchase Agreement (the "Agreement") with Mira, L.P. ("Mira"), pursuant to which the Sellers agreed to sell to Mira 2,742,461 shares of Common Stock. The shares of Common Stock to be sold constitute all of the Common Stock beneficially owned by the Reporting Persons, except for 4,000 shares held by each of Laurence Freedman and Brian Sherman and 5,447 shares held by EquitiLink International Management Limited. Mira has also agreed that it will not solicit proxies in opposition to the proposal to approve a new management agreement and a new advisory agreement at the Fund's special meeting of shareholders scheduled for November 30, 2000, and that it will vote all shares of Common Stock beneficially owned by it in favor of the proposal. A copy of the Agreement is attached hereto as Exhibit 6 and is incorporated herein by reference. 2. Item 5 of the Schedule 13D is hereby amended by adding thereto the following: (a) The Reporting Persons beneficially own an aggregate of 2,755,908 shares of Common Stock, constituting approximately 16.0% of the 6 7 outstanding shares of Common Stock (computed on the basis of 17,189,998 shares of Common Stock outstanding as of April 30, 2000 as reported in the Fund's Semi-Annual Report to the SEC on Form N-30D for the six months ended April 30, 2000). In the aggregate, all persons named in Item 2 and Annex A to the Schedule 13D as originally filed on April 1, 1999, which is incorporated herein by reference, beneficially own 2,756,915.7907 shares of Common Stock, which represents approximately 16.0% of the outstanding shares of Common Stock. (b) Each of Laurence Freedman, Brian Sherman and Richard Strickler owns 4,000, 4,000 and 1,007.7907 shares of Common Stock, respectively, with sole voting and dispositive power for all such shares. (c) On November 10, 2000, EquitiLink Holdings Limited, EquitiLink Limited, EquitiLink International Management Limited, and EquitiLink U.S.A., Inc. entered into a Stock Purchase Agreement with Mira, L.P., pursuant to which the Sellers agreed to sell to Mira 2,742,461 shares of Common Stock. 3. Item 7 of the Schedule 13D is hereby amended and supplemented to add the following: Item 7. Materials to be Filed as Exhibits. EXHIBIT 6. Stock Purchase Agreement, dated as of November 10, 2000, among Mira, L.P. and EquitiLink Holdings Limited, EquitiLink Limited, EquitiLink International Management Limited, and EquitiLink U.S.A., Inc. 7 8 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement with respect to the undersigned is true, complete and correct. Date: November 10, 2000 Laurence Freedman /s/ Laurence Freedman --------------------------------------------- Brian Sherman /s/ Brian Sherman --------------------------------------------- EQUITILINK LIMITED By: /s/ Barry Sechos ----------------------------------------- Name: Barry Sechos Title: Director EQUITILINK U.S.A., INC. By: /s/ Richard P. ----------------- Strickler ------------------------------------ Name: Richard P. Strickler Title: Managing Director 8 EX-99.6 2 y42614ex99-6.txt STOCK PURCHASE AGREEMENT 1 STOCK PURCHASE AGREEMENT AGREEMENT, dated as of November 10, 2000 (the "Agreement"), among Mira, L.P. (the "Purchaser"), and EquitiLink Holdings Limited, EquitiLink Limited, EquitiLink International Management Limited and EquitiLink U.S.A., Inc. (the "Sellers"). 1. Purchase and Sale. (a) The Sellers agree to sell, or cause one of their affiliates to sell, to the Purchaser, and the Purchaser agrees to purchase from the Sellers or such affiliate, upon the terms and subject to the conditions set forth herein, 2,742,461 shares (the "Shares") of common stock, par value $.01 per share (the "Fund Common Stock"), of The First Australia Fund, Inc., a Maryland corporation (the "Fund"), at an aggregate price (the "Purchase Price") equal to the product of (a) 2,742,461 (as may be adjusted pursuant to Section 1(b)) and (b) the average of the daily volume-weighted average price per share of Fund Common Stock on the American Stock Exchange ("AMEX") over the Measuring Period. The "Measuring Period" shall be the ten trading days immediately following the earlier of (i) the fifth business day following the closing (the "Aberdeen Closing") of the transactions contemplated by the Share Sale Agreement, dated October 19, 2000, among Aberdeen Asset Management, PLC, the Seller, EIML Australia Pty Limited and the shareholders of EquitiLink International (Channel Islands) Limited (the "Aberdeen Agreement") and (ii) January 15, 2001. (b) If the number of outstanding shares of Fund Common Stock is increased or decreased as a result of any stock dividend, stock split, stock combination or other similar corporate action, the number of Shares subject to this Agreement shall be equitably adjusted to take into account such event. 2. Withdrawal of Proxy Statement. In consideration of the terms and conditions set forth herein, the Purchaser agrees promptly to make an appropriate filing under the U.S. federal proxy rules stating that it will not continue to solicit, and will not vote, proxies in opposition to the proposal to approve the Fund's new management agreement and the new advisory agreement at the special meeting of the Fund's stockholders scheduled to be held on November 30, 2000 (the "Proposal"), and that it will not solicit such proxies after the date hereof. 3. Purchaser's Representations and Warranties. The Purchaser represents and warrants to the Seller that (a) the Purchaser is duly authorized to execute and deliver this Agreement, (b) this Agreement is a valid and binding agreement, enforceable against the Purchaser in accordance with its terms and (c) the Purchaser has, or will have by Closing, the funds needed to pay for the Shares. 4. Sellers' Representations and Warranties. The Sellers jointly and severally represent and warrant to the Purchaser that (a) each Seller is duly authorized to execute and deliver this Agreement and that this Agreement is a valid and binding agreement, 2 enforceable against such Seller in accordance with its terms, (b) the sale and delivery of the Shares to Purchaser in accordance with the terms hereof will vest in Purchaser legal and valid title to the Shares, free and clear of all liens and encumbrances (other than any liens or encumbrances arising as a result of the ownership of the Shares by the Purchaser), (c) the Sellers currently anticipate that the Aberdeen Closing will occur prior to January 2001, and (d) as of the date hereof and as of the date of the Closing, the Sellers have aggregate net assets with a value of at least $80 million. 5. Closing. The closing of the purchase and sale of the Shares contemplated hereby (the "Closing") shall take place at the offices of Debevoise & Plimpton, 875 Third Avenue, New York, N.Y. 10022, at 10:00 a.m. on the first business day after the later of (a) the date that the conditions set forth in Section 6 shall be satisfied or waived and (b) the last day of the Measuring Period, or such other time, date or place as the parties may mutually agree. At the Closing: (i) the Sellers or one of their affiliates will sell, transfer and deliver the Shares, represented by certificates duly endorsed in blank or other instruments of transfer; and (ii) the Purchaser will purchase the Shares and deliver to the Sellers or one of their affiliates the Purchase Price by a wire transfer of immediately available funds to the previously designated account of the Sellers or one of their affiliates. 6. Conditions Precedent. The respective obligations of the Purchaser and the Sellers to consummate the purchase and sale of the Shares as provided herein (the "Transaction") is subject to (a) the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), having been terminated or expired; (b) there not being in effect any injunction or other order issued by a court of competent jurisdiction restraining or prohibiting the consummation of the Transaction; (c) the Aberdeen Closing having occurred; and (d) all consents and approvals from all governmental and self-regulatory authorities necessary for the consummation of the Transaction having been obtained. 7. Certain Covenants. (a) The Purchaser agrees to vote all shares of Fund Common Stock beneficially owned by the Purchaser in favor of the Proposal at the Special Meeting. (b) The Purchaser agrees that prior to the Closing it will not directly or indirectly seek or propose (i) to initiate, or join any person in initiating, any action to influence or control the Fund's management or policies (provided that this covenant shall not restrict the Purchaser from voting its shares of Fund Common Stock as it sees fit, except as otherwise provided in Sections 7(a) and 7(b)(ii)), or (ii) to take any action or support any 2 3 action by any other person that is in opposition to the Proposal or to shareholder approval of the Proposal. (c) The Purchaser agrees that it will not take any action intentionally to depress the trading price of the Fund Common Stock. (d) The Sellers and the Purchaser agree to use all commercially reasonable efforts to obtain as promptly as possible all regulatory approvals required for them to consummate the Transaction as provided herein, including, without limitation, approvals under the HSR Act. The Sellers will not intentionally take or omit to take any action to delay the Aberdeen Closing beyond December 2000. The Sellers will give the Purchaser reasonable advance notice, to the extent practicable, of the date of the Aberdeen Closing. (e) The Sellers agree to notify the Purchaser promptly if (i) they learn that the Aberdeen Closing will occur after December 2000, (ii) the Aberdeen Agreement is terminated, or (iii) they learn of any event that would result in a failure of the conditions set forth in Section 6 to be satisfied or that would constitute a breach of their representations, warranties or covenants hereunder. The Purchaser agrees to notify the Sellers promptly if it learns of any event that would result in a failure of the conditions set forth in Section 6 to be satisfied or that would constitute a breach of its representations, warranties or covenants hereunder. (f) The Purchaser acknowledges that the Sellers are affiliates of the Fund, within the meaning of Rule 405 under the Securities Act. The Purchaser agrees that it will not sell the Shares otherwise than in compliance with Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"), or otherwise in a transaction that does not require registration under the Securities Act. 8. Distributions. The Purchaser acknowledges and agrees that the Sellers shall be entitled to receive the distribution on the Fund Common Stock declared in December 2000 (the "December Distribution") with respect to the Shares, to the extent the December Distribution is in the ordinary course consistent with past practice. The Sellers agree that the Purchaser shall be entitled to receive any other distribution made or declared with respect to the Shares during the term of this Agreement. 9. Expenses. Each of the parties hereto shall pay its own expenses incurred in connection with this Agreement. 10. Survival. All representations, warranties and agreements made by the Sellers and by the Purchaser in this Agreement shall survive the Closing hereunder and any investigation at any time made by or on behalf of either party hereto. 3 4 11. Notices. All notices, claims, requests, demands and other communications hereunder will be in writing and will be deemed to have been duly given if delivered or mailed (registered or certified mail, postage prepaid, return receipt) as follows: (a) If to the Purchaser, to: Mira, L.P. C/o Zurich Capital Markets, Inc. One Chase Manhattan Plaza New York, NY 10005 Attention: Terence S. Leighton with a copy to: Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037 Attention: Matthew A. Chambers (b) If to the Sellers, to: EquitiLink Holdings Limited Level 3, 190 George Street Sydney, NSW, 2000 Australia Attention: Barry G. Sechos with a copy to: Debevoise & Plimpton 875 Third Avenue New York, N.Y. 10022 Attention: Meredith M. Brown or such other address as the person to whom notice is to be given may have previously furnished to the others in writing in the manner set forth above (provided that notice of any change of address shall be effective only upon receipt thereof). 12. Termination. This Agreement shall terminate without liability to any party if all conditions to the Closing shall not have been satisfied or waived on or prior to February 28, 2000, provided that such termination shall not relieve any 4 5 party from obligation for any breach of this Agreement prior to termination. 13. Miscellaneous. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto. No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other parties, except that the rights and obligations of the Purchaser may be assigned by the Purchaser to a third party, but no such transfer shall relieve the Purchaser of its obligations hereunder if such transferee does not perform such obligations. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (regardless of the laws that might otherwise govern under applicable New York principles of conflicts of law). The Sellers and the Purchaser agrees to use its commercially reasonable efforts to cause the conditions to Closing set forth herein to be satisfied and to cause the Closing to occur in accordance with the terms hereof. At any time or times from and after the Closing, the Sellers, on the one hand, and the Purchaser, on the other hand, shall, at the request of the other party, execute and deliver any further instruments and documents and take all such further action as such other may reasonably request in order to evidence or effect the consummation of the Transaction. 5 6 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the general partner of the Purchaser and by duly authorized officers of the Sellers as of the date first written above. MIRA, L.P. By: Zurich Capital Markets, Inc., its General Partner By: /s/Terence S. Leighton ------------------------------------- Name: Terence S. Leighton Title: Managing Director EQUITILINK HOLDINGS LIMITED By: /s/ Laurence Freedman ------------------------------------- Name: Laurence Freedman Title: Director EQUITILINK LIMITED By: /s/ Laurence Freedman ------------------------------------- Name: Laurence Freedman Title:Director EQUITILINK INVESTMENT MANAGEMENT LIMITED By: /s/ Laurence Freedman ------------------------------------- Name: Laurence Freedman Title:Director 6 7 EQUITLINK U.S.A., INC. By: /s/ Richard P. Strickler ----------------------------------- Name: Richard P. Strickler Title: Managing Director 7 -----END PRIVACY-ENHANCED MESSAGE-----