EX-2.1 2 tm229491d1_ex2-1.htm EXHIBIT 2.1

 

Exhibit 2.1

 

CERTAIN CONFIDENTIAL INFORMATION (MARKED BY BRACKETS AS “[***]”) HAS BEEN

EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD

BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

 

 

 

EXECUTION VERSION

  

CMPL

 

Share Sale Agreement

 

Dated

 

Glencore Operations Australia Pty Limited (ACN 128 115 140) (Seller

Metals Acquisition Corp. (Australia) Pty Ltd (ACN 657 799 758) (Buyer

Metals Acquisition Corp (Buyer Guarantor)

 

King & Wood Mallesons

Level 61

Governor Phillip Tower

1 Farrer Place

Sydney NSW 2000

Australia

T +61 2 9296 2000

F +61 2 9296 3999

DX 113 Sydney

www.kwm.com

 

 

 

 

Share Sale Agreement

Contents

 

Details 1
General terms 3
1       Definitions and interpretation 3
1.1    Definitions 3
1.2    General interpretation 19
1.3    Method for Payment 20
1.4    Payment of Final Adjustment Amount 20
2    Conditions Precedent 20
2.1    Conditions Precedent 20
2.2    Reasonable endeavours 21
2.3    Specific obligations of co-operation 21
2.4    Waiver 22
2.5    Termination of agreement 22
2.6    Effect of termination 22
3    Sale and purchase of Shares 22
3.1    Sale and purchase 22
3.2    Free from Encumbrances 22
3.3    Rights attaching to Shares 22
3.4    Seller CGT Declaration 22
4    Purchase Price 23
4.1    Purchase Price 23
4.2    Payment of Purchase Price 23
5    Prohibited Events 23
6    Pre-Completion 24
6.1    Conduct of Business 24
6.2    Exceptions 26
6.3    Access to business premises and Records 27
6.4    Confidentiality undertaking 28
6.5    Clear exit 28
6.6    Buyer to provide information prior to Completion 28
6.7    Seller to provide information prior to Completion 28
6.8    Exclusivity – Buyer Guarantor 28
6.9    Exploration Assets 29
6.10    Potential Re-domiciliation 30
6.11    Transitional Services Agreement 30
7    Estimated Purchase Price 31
7.1    Calculation of Estimated Purchase Price 31
8    Completion 32
8.1    Time and place of Completion 32
8.2    Seller obligations 32

 

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8.3    Buyer obligations 33
8.4    Buyer Guarantor’s obligations at Completion 34
8.5    Seller’s obligations in respect of Rollover Shares 34
8.6    Simultaneous actions at Completion 34
8.7    Post-Completion notices 34
8.8    Release of Financial Assurances 34
8.9    Notice to ASIC of release of class order guarantee 35
9    Conduct of business after Completion 35
9.1    Exclusion of officers from liability 35
9.2    Use of Seller intellectual property 36
9.3    Phase out of use of Seller name and marks 36
9.4    Payment of Intercompany Amounts 36
9.5    Compliance with Seller Group Member contracts 36
9.6    Seller Group Insurance Policies 36
9.7    Records 37
9.8    Wrong Pockets 37
9.9    Rollover elections 38
10    Final Adjustment Amount 38
10.1    Completion Statements 38
10.2    Calculation of Final Adjustment Amount 38
10.3    Access to information 39
10.4    Review of Completion Statements and dispute resolution procedure 39
10.5    Review of Tax Adjustment Statement 41
10.6    Payment of Final Adjustment Amount 41
11    Warranties and representations 41
11.1    Accuracy of Warranties 41
11.2    Separate Warranties 41
11.3    Matters disclosed 41
11.4    Buyer acknowledgements 43
11.5    Release 44
11.6    No knowledge of Warranty breach 45
11.7    Personal Liability 45
12    Limitations of Liability 45
12.1    Notice of Claims 45
12.2    Third Party Claims 46
12.3    Seller to defend Claim 46
12.4    Seller not liable 47
12.5    Other limitations 48
12.6    Recovery 49
12.7    Adjustment to Purchase Price 49
12.8    Time limit on Claim 49
12.9    Minimum amount of Claim 49
12.10    Maximum Liability 50
12.11    Exclusion of consequential liability 50
12.12    Insured Claim or loss 50
12.13    Later recoveries 51
12.14    Obligation to mitigate 51
12.15    Tax benefit 51
12.16    No double recovery 51

 

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12.18    Remedies for breach of Warranties 52
12.19    Knowledge and belief 52
12.20    Insurance 52
12.21    Independent limitations 52
13    Taxation 53
13.1    Tax Indemnity 53
13.2    Payment 53
13.3    Refund 53
13.4    Gross up 54
13.5    Pre-Effective Time Tax matters 54
14    Tax returns 55
14.1    Tax Returns before Effective Time 55
14.2    Tax Returns after Effective Time 55
14.3    Copy of Straddle Return 55
14.4    Review of Straddle Return 55
14.5    Incorporation of comments into Straddle Returns 56
14.6    Access and assistance 56
14.7    Costs 56
14.8    Tax Expert 56
15    Buyer and Buyer Guarantor warranties 57
15.1    Buyer and Buyer Guarantor warranties 57
15.2    Indemnity 60
16    Guarantee and indemnity 60
16.1    Consideration 60
16.2    Guarantee 60
16.3    Indemnity 60
16.4    Extent of guarantee and indemnity 61
16.5    Obligation to pay interest 61
16.6    Compounding 61
16.7    Payments 61
16.8    No merger 62
16.9    Rights of the Seller are protected 62
16.10    Buyer Guarantor’s rights are suspended 63
16.11    Reinstatement of rights 63
16.12    Costs 64
17    Default 64
17.1    Remedies of the Seller 64
17.2    Remedies of the Buyer 64
17.3    Termination for Material Adverse Change 65
17.4    No termination or rescission 65
18    Confidential Information 65
18.1    Confidential Information 65
18.2    Disclosure of Confidential Information 65
18.3    Public Filings 65
18.4    Use of Confidential Information 66
18.5    Excluded Information 66
18.6    Delivery of materials 66
18.7    Disclosure prior to the date of this document 66

 

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18.8    Use of Personal Information by the Seller after Completion 66
18.9    Tax reporting 66
18.10    Survival of termination 67
19    Announcements 67
19.1    Public announcements 67
19.2    Public announcements required by law 67
20    Costs and Duty 67
20.1    Legal costs 67
20.2    Duty 67
21    Notices and other communications 67
21.1    Form 67
21.2    Delivery 68
21.3    When effective 68
21.4    Receipt - post 68
21.5    Receipt - email 68
21.6    Receipt outside business hours 68
22    GST 68
22.1    Definitions and interpretation 68
22.2    GST exclusive 69
22.3    Payment of GST 69
22.4    Adjustment events 69
22.5    Reimbursements 69
23    General 69
23.1    Variation and waiver 69
23.2    Consents, approvals or waivers 69
23.3    Discretion in exercising rights 70
23.4    Partial exercising of rights 70
23.5    Conflict of interest 70
23.6    Remedies cumulative 70
23.7    Indemnities and reimbursement obligations 70
23.8    Inconsistent law 70
23.9    Supervening law 70
23.10    Counterparts 70
23.11    Representations and undertakings continue 71
23.12    Entire agreement 71
23.13    Further steps 71
23.14    Prompt performance 71
23.15    Assignment or other dealings 71
23.16    No liability for loss 71
23.17    Severability 71
23.18    Rules of construction 71
23.19    Payment with withholding or deduction 71
23.20    No Claims Against Trust Account 72
24    Governing law 74
24.1    Governing law and jurisdiction 74
24.2    Serving documents 74

 

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Schedule 1    Shares 75
Schedule 2    Mining Tenements 76
Schedule 3    Properties 77
Schedule 4    Prohibited Events 80
Schedule 5    Warranties 84
Schedule 6    Accounting Principles 92
Schedule 7    Completion Balance Sheet 94
Schedule 8    Completion Net Debt Statement 96
Schedule 9    Completion Working Capital Statement 97
Schedule 10    Issuance of Rollover Shares / Preparation of Proxy Statement / Extraordinary General Meeting 98
Schedule 11    Financial Assurances 102
Signing page 103
Annexure A    Transitional Services Agreement 103
Annexure B    Form of officer release 109
Annexure C    Going Concern Declaration 115
Annexure D    No Prohibited Events Declaration 116
Annexure E    Offtake Agreement 117
Annexure F    Registration Rights Agreement 118
Annexure G    Royalty Deed 119
Annexure H    Tenement Mortgage 120

 

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Share Sale Agreement

 

Details

 

Parties Seller, Buyer and Buyer Guarantor
Seller Name Glencore Operations Australia Pty Limited
  ACN 128 115 140
  Address

Level 44 Gateway

 

1 Macquarie Place

Sydney NSW 2000

  Attention

[***]

  Email

[***]

Buyer Name Metals Acquisition Corp. (Australia) Pty Ltd
  ACN 657 799 758
  Address Suite 400, 425 Houston St, Ft Worth, Texas, 76102
  Attention Michael McMullen (Director)
  Email [***]
Buyer Guarantor Name Metals Acquisition Corp
Cayman Islands Registration Number 372802
  Address Suite 400, 425 Houston St, Ft Worth, Texas, 76102
  Attention Michael McMullen (CEO and Director)
  Email [***]
Governing law New South Wales, Australia
Recitals A        Seller is the registered holder and beneficial owner of the Shares.

 

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B       Seller has agreed to sell, and the Buyer has agreed to buy, the Shares on the terms of this document.

 

C       The Buyer has made an offer (Rollover Offer) to acquire from the Seller the Shares for a combination of the issue of Rollover Shares and cash.

 

D       The Seller has accepted the Rollover Offer on the terms of this document.

 

E        The Buyer Guarantor has agreed to guarantee the obligations of the Buyer and acknowledges incurring obligations and giving rights under this document for valuable consideration received from the Seller.

 

F         In connection with Completion, each of Seller, Buyer and Buyer Guarantor after Completion will enter into an Amended and Restated Registration Rights Agreement substantially in the form set out in Annexure F (the “Registration Rights Agreement”).

 

 

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Share Sale Agreement

 

General terms

 

1Definitions and interpretation

 

1.1Definitions

 

Unless the contrary intention appears, these meanings apply:

 

Accounting Principles means the principles and methodology set out in Schedule 6.

 

Accounting Standards means:

 

(a)accounting standards as defined in the Corporations Act; and

 

(b)to the extent consistent with paragraph (a), other accounting standards, principles and practices generally accepted in Australia for a business similar to the Company, consistently applied.

 

Acelight means Acelight Pty. Limited (ACN 084 303 444).

 

Actual Net Debt Amount has the meaning given in clause 10.2.

 

Actual Tax Adjustment Amount means any Tax on income (including any net capital gain) that is or will become payable (applying the assumptions in paragraph (a) and (b) of this definition below) by the Seller Head Company that is referrable to any act, matter or transaction of the Company occurring on or (i) after the Effective Time and (ii) before Completion. For the avoidance of doubt:

 

(a)such an estimate will be expressed as a positive number and prepared ignoring any tax losses or other tax attributes (including capital losses) of the Seller Consolidated Group; and

 

(b)where (i) the Company sells or otherwise disposes of any property (including copper or silver) to another member of the Seller Consolidated Group (first sale) and (ii) that member (or another member of the Seller Consolidated Group) subsequently sells or disposes of that property to an entity that is not a member of the Seller Consolidated Group (second sale), then any Tax on income that is or will be payable (applying the assumption in paragraph (a) above) by the Seller Head Company as a result of that second sale will be taken to be referrable to the first sale by the Company, provided that such Tax will be calculated on the assumption that the purchase price for the second sale equals the purchase price for the first sale.

 

Actual Working Capital Amount has the meaning given in clause 10.2.

 

Actway means Actway Pty. Limited (ACN 090 165 174).

 

Affiliate means in respect of a person (Primary Person):

 

(a)a person Controlled directly or indirectly by the Primary Person;

 

(b)a person Controlling directly or indirectly the Primary Person;

 

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(c)a person directly or indirectly Controlled by a person who Controls the Primary Person (whether alone or with another person or persons); or

 

(d)a person directly or indirectly under the common Control of the Primary Person and another person or persons.

 

Annual Program and Budget means the annual program and budget in respect of the Mine.

 

Approval means any Licence, consent, certificate, notification, declaration or other authorisation required for the lawful conduct of the Business.

 

ASIC means the Australian Securities and Investments Commission.

 

Assets means all assets legally or beneficially owned by the Company in connection with the Business.

 

Authorised Officer means a director or secretary of a party or any other person nominated by a party to act as an Authorised Officer for the purposes of this document.

 

Back to Back Financial Assurance means, in respect of an Unreleased Financial Assurance, a bank guarantee, in favour of the Seller Group Member on whose behalf the Unreleased Financial Assurance was made, on terms satisfactory to the Seller acting reasonably.

 

Base Working Capital has the meaning given in clause 7.1(b).

 

Business means the business undertaken by the Company as at the date of this document comprising commercial actions undertaken to facilitate and enable mining activities at the Mine and product sales to be conducted by the Company.

 

Business Combination has the meaning ascribed to such term in the Buyer Guarantor’s Prospectus.

 

Business Day means any day, other than a Saturday or Sunday or public holiday in Sydney, New South Wales, on which banks are open for general banking business.

 

Business Warranty means each Warranty given in Part B of Schedule 5.

 

Buyer Group means the Buyer and any Related Body Corporate of the Buyer and Buyer Group Member means any one of them.

 

Buyer Guarantor means the person so described in the Details.

 

Buyer Guarantor Class A Shares means Class A ordinary shares, par value US$0.0001 per share, of Buyer Guarantor.

 

Buyer Guarantor Ordinary Shares means the (i) Class A ordinary shares, par value US$0.0001 per share, of Buyer Guarantor and (ii) Class B ordinary shares, par value US$0.0001 per share, of Buyer Guarantor.

 

Buyer Guarantor’s Prospectus means the Buyer Guarantor’s final prospectus dated July 28, 2021.

 

Buyer Guarantor Shareholder Approval means, assuming a quorum is present at the Extraordinary General Meeting, the approval of a majority of the issued and outstanding Buyer Guarantor Ordinary Shares of the Buyer Guarantor Shareholder Matters attending in person or by proxy.

 

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Buyer Guarantor Shareholder Matters has the meaning given in Schedule 10.

 

Buyer Guarantor Shareholder Redemptions has the meaning given in Schedule 10.

 

Buyer Guarantor Shareholders means the holders of Buyer Guarantor Ordinary Shares.

 

Buyer Guarantor Warrants means a warrant that entitles the holder to purchase one Buyer Guarantor Class A Share at a price of $11.50 per share.

 

Buyer’s Cure Notice has the meaning given in clause 17.1(a).

 

Cash Consideration means:

 

(a)the Estimated Purchase Price; minus

 

(b)the Rollover Aggregate Amount.

 

Claim means any allegation, debt, cause of action, action, dispute, Liability, claim, proceeding, investigation, inquiry, prosecution, litigation, arbitration, mediation, audit, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, and whether at law, in equity, under statute or otherwise.

 

Clear Exit Amount means the amount (if any) that the Company is required to pay to leave the Seller Consolidated Group clear of each Group Liability for the purposes of section 721-35 of the Tax Act.

 

Company means Cobar Management Pty. Limited (ACN 083 171 546).

 

Company Books means the minute books, statutory books and registers of the Company, or any of them as the context requires.

 

Completion means completion of the sale and purchase of the Shares in accordance with clause 8 and Complete has a corresponding meaning.

 

Completion Balance Sheet means the aggregated balance sheet of the Company as at the Effective Time prepared in accordance with the Accounting Principles and in the form set out in Schedule 7.

 

Completion Date means:

 

(a)the first Business Day of the month immediately following the month in which all of the Conditions Precedent have been satisfied or waived (or, if such Conditions Precedent have been satisfied or waived less than 2 Business Days before the last Business Day of a month, on the first Business Day of the second following month); or

 

(b)such other date as the Seller and the Buyer may agree in writing.

 

Completion Net Debt Statement means the statement setting out the Actual Net Debt Amount in the form set out in Schedule 8 as extracted from the Completion Balance Sheet.

 

Completion Statements means the Completion Balance Sheet, the Completion Net Debt Statement and the Completion Working Capital Statement.

 

Completion Working Capital Statement means the statement setting out the Actual Working Capital Amount in the form set out in Schedule 9 as extracted from the Completion Balance Sheet.

 

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Conditions Precedent means the conditions precedent set out in clause 2.

 

Confidential Information means all Information disclosed to the Receiving Party, any of its Related Bodies Corporate or any of their respective Representatives, in connection with this document, including:

 

(a)the existence and contents of this document and each draft document referred to in, or to be entered into in connection with, this document (including the Offtake Agreement and Royalty Deed);

 

(b)all discussions and correspondence between the parties and any of their respective Related Bodies Corporates or Representatives that have taken place, are taking place or will take place in relation to this document, each draft document referred to in, or to be entered into in connection with, this document, and the Transaction (including the fact that such discussions have taken place, are taking place or may in the future take place and their content);

 

(c)information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Disclosing Party or any of its Related Bodies Corporate;

 

(d)information derived or produced partly or wholly from the Information including any calculation, conclusion, summary or computer modelling; and

 

(e)trade secrets or information which is capable of protection at law or equity as confidential information,

 

whether the Information was disclosed:

 

(f)orally, in writing or in electronic or machine-readable form;

 

(g)before, on or after the date of this document;

 

(h)as a result of discussions between the parties relating to or arising out of the acquisition of the Business; or

 

(i)by the Disclosing Party or any of its Representatives, any of its Related Bodies Corporate, any Representatives of its Related Bodies Corporate or by any third person.

 

Consistent Policies has the meaning given in Schedule 6.

 

Consolidated Group has the meaning given to that expression in section 703-5 of the Tax Act and includes a “MEC Group” as defined in section 995-1 of the Tax Act.

 

Control of an entity includes the power to directly or indirectly:

 

(a)determine the management or policies of the entity;

 

(b)control the membership of the board or other governing body of the entity; or

 

(c)control the casting of more than one half of the maximum number of votes that may be cast at a general meeting of the entity,

 

regardless of whether the power is in writing or not, enforceable or unenforceable, expressed or implied, formal or informal or arises by means of trusts, agreements, arrangements, understandings, practices or otherwise.

 

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Controller has the meaning it has in the Corporations Act.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Costs means costs, charges and expenses, including those incurred in connection with advisers and any legal costs on a full indemnity basis.

 

Cut Off Time means the date which is 2 Business Days before the date of this document.

 

Data Room means the

 

(a)the Datasite Data Room; and

 

(b)online file sharing site “KWM Share Support” secured by kiteworks which was made available to the Buyer and its Representatives.

 

Datasite Data Room means electronic data room named “Project Chariot” established by or on behalf of the Seller and hosted by Datasite.

 

Deed of Cross Guarantee means the deed so entitled, dated 4 December 2018 between Glencore Investment Pty Limited (ACN 076 513 034), the Company and others, executed pursuant to ASIC Class Order 2016/785.

 

Details means the section of this document headed “Details”.

 

Disclosing Party means the party disclosing Confidential Information.

 

Disclosure Letter means the letter from the Seller addressed to the Buyer and dated and delivered to it before the date of this document and includes all of its schedules and annexures.

 

Disclosure Material means:

 

(a)all of the information and material contained in the Data Room as at the Cut Off Time; and

 

(b)the matters disclosed in the Disclosure Letter.

 

Dispute Notice has the meaning given in clause 10.4(a).

 

Due Diligence means the enquiries and investigations into the Company, the Business and the Assets carried out by the Buyer and its Representatives.

 

Duty means any stamp, transaction or registration duty or similar charge which is imposed by any Government Agency, together with any fines, penalties and interest in connection with them.

 

Duty Exemption Letter means the letter of exemption issued under section 273B(1) of the Duties Act 1997 (NSW) by NSW Government Department of Revenue, dated 14 May 2021.

 

Effective Time means 11.59pm Sydney, Australia time on the last day of the month immediately preceding the month in which Completion occurs.

 

Employees means the employees of the Company at Completion.

 

Encumbrance means any security for the payment of money or performance of obligations, including a mortgage, charge, lien, pledge, trust, power or title retention or flawed deposit arrangement and any “security interest” as defined in sections 12(1) or 12(2) of the PPSA, or any agreement to create any of them or allow them to exist, but excludes any Permitted Encumbrance.

 

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Environment means all of the physical surroundings of humans including:

 

(a)land, water, atmosphere, climate, sound, odour and taste;

 

(b)the biological factors of animals and plants; and

 

(c)the social factor of aesthetics affecting any human individually or in their social groupings.

 

Environmental Law means any law (including the laws of tort, negligence and nuisance) relating to the Environment.

 

Estimated Adjustment Amount has the meaning given in clause 7.1(b).

 

Estimated FX Rate has the meaning given in clause 7.1(b).

 

Estimated Net Debt Amount has the meaning given in clause 7.1(b).

 

Estimated Purchase Price means the amount determined in accordance with clause 7.1(c).

 

Estimated Statements has the meaning given in clause 7.1(a).

 

Estimated Tax Adjustment Amount has the meaning given in clause 7.1(b).

 

Estimated Working Capital Adjustment Amount has the meaning given in clause 7.1(b).

 

Estimated Working Capital Amount has the meaning given in clause 7.1(b).

 

Exchange Act means the Securities Exchange Act of 1934, as amended.

 

Excluded Information means Confidential Information which:

 

(a)is in or becomes part of the public domain other than through breach of this document or an obligation of confidence owed to the Disclosing Party or any Related Body Corporate of the Disclosing Party;

 

(b)the Receiving Party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the Disclosing Party or its Related Bodies Corporate or Representatives (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or

 

(c)the Receiving Party acquires from a source other than the Disclosing Party or any Related Body Corporate or Representative of the Disclosing Party where such source is entitled to disclose it.

 

Exploration JV Documents has the meaning given in clause 6.9(a)(iii).

 

Exploration Licences means each of the following exploration licences:

 

(a)EL 5693;

 

(b)EL 5983; and

 

(c)EL 6907,

 

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together with all renewals, extensions and amendments to those exploration licences (including exploration licences granted in substitution of them) and all rights and obligations arising from them.

 

Extraordinary General Meeting means an extraordinary general meeting of the holders of Buyer Guarantor Ordinary Shares to be held for the purpose of considering and if thought fit approving the Buyer Guarantor Shareholder Matters.

 

Final Adjustment Amount has the meaning given in clause 10.2.

 

Final Adjustment Interest Amount means simple interest paid on the absolute value of the Final Adjustment Amount from Completion until the date on which the Final Adjustment Amount is paid, calculated daily at the rate per annum equal to the Interest Rate as at Completion.

 

Final Net Debt Adjustment Amount has the meaning given in clause 10.2.

 

Final Working Capital Adjustment Amount has the meaning given in clause 10.2.

 

Financial Assurances means the bank guarantees or securities provided by or on behalf of the Company or its Related Bodies Corporate to the State in respect of the environmental Approvals for the Mining Tenements and in accordance with the Mining Act, which at the date of this document are set out in Schedule 11 and are for an aggregate amount of A$36,853,000.00.

 

FIRB means the Foreign Investment Review Board.

 

FIRB Act means the Foreign Acquisitions and Takeovers Act 1975 (Cth).

 

FIRB Application means a foreign investment application in respect of the proposed Transaction prepared and submitted (or to be submitted) by the Buyer in accordance with the requirements of the FIRB Act and any regulations made thereunder.

 

Forward Looking Information means:

 

(a)any statement of opinion or intent, estimate, business plan, forecast, projection or judgement as to future matters (that is, matters after the time at which the statement of opinion, estimate, business plan, forecast, projection or judgement was made);

 

(b)any information on the future financial performance or prospects of the Company, the Business or any part of it (including any opinions, estimates, projections, business plans, budget information or other forecasts in respect of the Company, the Business or any part of it); and

 

(c)any financial modelling relating to the Company, to the extent relating to periods after the date as at which the relevant financial modelling was prepared.

 

FX Adjustment has the meaning given in clause 10.2.

 

Glencore Investment means Glencore Investment Pty Limited (ACN 076 513 034).

 

Government Agency means any government, governmental, semi-governmental, administrative, fiscal or judicial body department, commission, authority, tribunal, agency or entity and includes any other person authorised by law to give consents or impose requirements in connection with the Environment.

 

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Group Liability means, in respect of the Company, a group liability (within the meaning given to that expression in section 721-10 of the Tax Act) of the Seller Head Company where the Company was a member of the Seller Consolidated Group for at least part of the period to which the group liability relates.

 

GST has the meaning given in the GST Act.

 

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

GST Group has the meaning given in section 195-1 of the GST Act.

 

Guarantee means the guarantee and indemnity in clause 16.

 

Head Company has the meaning given in section 995-1 of the Tax Act.

 

Incoming Officers means the persons nominated by the Buyer pursuant to clause 6.6(a) to be a director or the public officer of the Company from Completion.

 

Indemnified Person means the Seller and its Representatives and each other Seller Group Member and their Representatives.

 

Independent Expert means the independent expert appointed by the parties in accordance with the procedure set out in clause 10.

 

Indirect Tax Sharing Agreement means an indirect tax sharing agreement entered into in accordance with section 444-90 of the Tax Act.

 

Information means all information regardless of its Material Form relating to or developed in connection with:

 

(a)the business, technology or other affairs of the Disclosing Party or any Related Body Corporate of the Disclosing Party, or in the case of the Seller only, the Company; or

 

(b)any systems, technology, ideas, concepts, know-how, techniques, designs, specifications, plans, blueprints, tracings, diagrams, models, functions, capabilities and designs (including computer software, manufacturing processes or other information embodied in drawings or specifications), intellectual property or any other information which is marked “confidential” or is otherwise indicated to be subject to an obligation of confidence owned or used by or licensed to the Disclosing Party or a Related Body Corporate of the Disclosing Party, or in the case of the Seller only, the Company.

 

Insolvency Law means any law relating to liquidation, administration, insolvency or the protection of creditors.

 

A person is Insolvent if:

 

(a)it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or

 

(b)it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to any of its property; or

 

(c)it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this document); or

 

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(d)an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 14 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of the things described in paragraphs (a), (b) or (c), in each case in connection with that person, in respect of any of the things described in paragraphs (a), (b) or (c); or

 

(e)it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; or

 

(f)it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this document reasonably deduces it is so subject); or

 

(g)it is otherwise unable to pay its debts when they fall due; or

 

(h)something having a substantially similar effect to any of the things described in paragraphs (a) to (g) happens in connection with that person under the law of any jurisdiction.

 

Intercompany Debt means all amounts (including any accrued interest) outstanding from, or payable to, a Related Body Corporate of the Company and comprises Intercompany Payables and Intercompany Receivables.

 

Intercompany Payables means all Intercompany Debt payable to a Related Body Corporate of the Company by the Company. For the purpose of this definition, “Related Body Corporate” means a Related Body Corporate of the Company at the time immediately prior to Completion.

 

Intercompany Receivables means all Intercompany Debt outstanding from a Related Body Corporate of the Company to the Company. For the purpose of this definition, “Related Body Corporate” means a Related Body Corporate of the Company at the time immediately prior to Completion.

 

Interest Rate means the Australian Bank Bill Swap Reference Rate administered by ASX Benchmark Pty Limited (or any other person which takes over the administration of that rate) for the relevant period displayed on page BBSW of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate) at or about 10.30am (Sydney time) plus 5% per annum, provided that if the Australian Bank Bill Swap Reference Rate would be less than zero it will be deemed to be zero.

 

Isokind means Isokind Pty. Limited (ACN 081 732 498).

 

ITSA Deed of Release means a deed of release substantially in the form set out in Schedule 5 of the Seller Indirect Tax Sharing Agreement.

 

Last Accounts means the balance sheet included in the December-21 Monthly Report on the tab labelled “BS” located at folder 3.2.40 of the Datasite Data Room.

 

Leaving Indirect Tax Contribution Amount means the amount (if any) of the payment (as contemplated by section 444-90 of Schedule 1 to the Tax Act) to be made by the Company to the Seller Representative Member.

 

Liability means any liability or obligation (whether actual, contingent or prospective), including for any Loss irrespective of when the acts, events or things giving rise to the liability occurred but excluding liability for any consequential or indirect losses, economic losses or loss of profits.

 

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Licence means a statutory, municipal, contractual or other licence, consent, permission, permit, right or authority.

 

Loss means all damage, loss, cost and expense (including legal costs and expenses of whatsoever nature or description) but excluding any liability for consequential or indirect losses, economic losses or loss of profits.

 

Material Adverse Change means an event, change, condition, matter, circumstance or thing occurring on or after the date of this document and before Completion that is outside of the ordinary course of business and has a physical effect on the Assets (each a “Specified Event”) which, whether individually or when aggregated with all other Specified Events that have occurred or are reasonably likely to occur, has had, or would be considered reasonably likely to have, a physical effect on the Assets which reduces the operating cash flows of the Company by at least US$250,000,000 in any financial year against what it would reasonably be expected to have been but for such Specified Event. The following will not constitute a Specified Event and will not be factored into any calculation of reduction in operating cash flows of the Company:

 

(a)a pandemic;

 

(b)a government directive, sanction, order, ban, rule or guideline in relation to any event (including a pandemic);

 

(c)a strike or industrial dispute which has as its result a national or statewide application;

 

(d)changes in general economic, political or business conditions (including declared or undeclared acts of war, armed hostilities, terrorism, financial market fluctuations, changes in interest rates);

 

(e)the unavailability (at commercially reasonable prices) of critical inputs required for the operation of the Business supplied by third parties;

 

(f)any general applicable change in law (including subordinate legislation);

 

(g)any change or effect that is cured (including by payment of money) or ceases to exist on or before the date of Completion;

 

(h)changes that affect the copper mining industry generally;

 

(i)any change in foreign exchange rates, financial, securities, or other market conditions (including prevailing commodities prices) generally and any other changes to macroeconomic factors; and

 

(j)any fact, matter or circumstance disclosed in writing by or on behalf of the Seller Group to the Buyer Group or its Representatives prior to the date of this document.

 

Material Business Contract means:

 

(a)a contract entered into by the Company (in its own capacity and solely for its own benefit) establishing an obligation on the Company to pay in aggregate over the term of the contract in excess of $15,000,000;

 

(b)the document entitled “Supply Contract – Supply of PPX Parts, GET, Drilling Consumables, Services and Other Items” between Mount Isa Mines Limited (in its personal capacity and as agent for EHM and CSA) and Sandvik Mining and Construction Australia Pty Ltd; and

 

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(c)the document entitled “Mobile Equipment Supply Contract – Supply of Capital Equipment and Associated Services” between Mount Isa Mines Limited (in its personal capacity and as agent for EHM and CSA) and Sandvik Mining and Construction Australia Pty Ltd dated 30 June 2020.

 

Material Form includes any form (whether visible or not) of storage from which reproductions can be made.

 

Memorandum and Articles of Association means Buyer Guarantor’s Memorandum and Articles of Association, as amended, and in effect on the date hereof.

 

Mine means the CSA underground copper (silver by-product) mine located approximately 12km north of Cobar, New South Wales.

 

Minimum Working Cash Amount means $15,000,000 being available in cleared funds in an account or accounts in the name of and/or controlled by the Company.

 

Mining Act means the Mining Act 1992 (NSW).

 

Mining Tenements means the consolidated mining leases, mining purpose lease and exploration licences specified in Schedule 2 and any other mining tenements which may be granted to the Company, together with all renewals, extensions and amendments to those mining leases and other mining tenements (including mining tenements granted in substitution of them) and all rights and obligations arising from them.

 

Ministerial Approval has the meaning given in clause 6.9(a)(i).

 

Net Debt means the aggregate of the consolidated assets of the Company less the aggregate of the consolidated liabilities of the Company as recorded in the general ledger codes listed under the heading 'Net Debt' as set out in the Completion Balance Sheet (which may be a positive or negative number).

 

No Prohibited Events Declaration means a declaration substantially in the form set out in Annexure D.

 

Notice has the meaning given in clause 21.1(a).

 

Offtake Agreement means the offtake agreement to be entered into between Glencore International AG and the Company, effective from Completion, attached as Annexure E.

 

Payout Debt Amount means any promissory note(s) issued by the Company under clause 6.5(c) or clause 6.5(d) and outstanding immediately prior to Completion.

 

Permitted Encumbrance means:

 

(a)a charge or lien arising in favour of a Government Agency by operation of statute unless there is default in payment of money secured by that charge or lien;

 

(b)any mechanics’, workmen’s or other like lien arising in the ordinary course of business;

 

(c)any retention of title arrangement undertaken in the ordinary course of day-to-day trading;

 

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(d)any encumbrance in respect of deposits of money or property by way of security for the performance of any contractual or statutory obligations owing in the ordinary course of business (other than obligations for borrowed moneys on the deferred purchase price of goods or services);

 

(e)any banker’s lien arising by operation of law in respect of moneys lodged or deposited with a banker;

 

(f)any claim lodged over land under the Native Title Act 1993 (Cth) or at common law by a person or persons claiming to hold native title;

 

(g)any encumbrance granted by a Seller Group Member or the Company in favour of another joint venturer or party to the Exploration JV Documents or the Shuttleton Heads of Agreement; or

 

(h)an interest of the kind referred to in section 12(3) of the PPSA where the transaction concerned does not, in substance, secure payment or performance of an obligation.

 

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

 

PPSA means the Personal Property Securities Act 2009 (Cth).

 

PPSR means the personal properties securities register established under the PPSA.

 

Pre-Effective Time Return has the meaning given in clause 14.1.

 

Pre-Effective Time Tax Event has the meaning given in clause 13.5(a).

 

Prohibited Event means any fact, matter or circumstance that causes, or is reasonably likely to cause, any of the statements contained in Schedule 4 to be incorrect or inaccurate.

 

Prohibited Event Information means any documents and information, including “know-your-counterparty” statements, in relation to any Buyer Group Member or the Buyer Guarantor, in connection with bribery, corruption, money laundering, tax evasion, economic or financial sanctions or trade embargoes.

 

Properties means the real property titles specified in Schedule 3.

 

Proxy Statement has the meaning given in Schedule 10.

 

Purchase Price means the Unadjusted Purchase Price, as adjusted in accordance with clauses 7 and 10 (and any other relevant provisions of this document).

 

Re-Domiciliation has the meaning given in clause 6.10.

 

Re-Domiciled Buyer Guarantor has the meaning given in clause 6.10.

 

Receiving Party means the recipient of Confidential Information.

 

Records means originals and copies, in any Material Form, of all books, files, reports, records, correspondence, documents and other material of the Company, of or relating to or used in connection with a Business, including:

 

(a)Company Books;

 

(b)books of account;

 

(c)all trading and financial records; and

 

(d)lists of all regular suppliers and customers,

 

but, for the avoidance of doubt, excludes any records of the Company which do not relate exclusively to a Business, except to the extent that the Company is required by law to retain such records.

 

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Recovered Sum means the amount recovered by the Buyer under clause 12.6.

 

Registration Rights Agreement has the meaning given in the Recitals.

 

Related Body Corporate has the meaning it has in the Corporations Act.

 

Released Trust Claims has the meaning given in clause 23.20(c).

 

Replacement FA Guarantees means bank guarantees or securities, on behalf of the Buyer, in favour of the State and in compliance with the requirements of the State in respect of the Financial Assurances, in the relevant amounts of each Financial Assurance.

 

Representative of a party includes an employee, agent, officer, director, auditor, adviser, partner, consultant, joint venturer or sub-contractor of that party.

 

Resolution Institute means the means the dispute resolution organisation of that name in Australia.

 

Restructure means the corporate reconstruction involving the Company’s acquisition of the Properties, Western Lands Leases, Water Licences and Mining Tenements, mining information, plant and equipment, approvals, remits, licences, consents and authorisations, business contracts, inventory from certain Seller Group Members conducted under the terms of the Restructure Agreements.

 

Restructure Agreements means the Restructure ASA and Restructure Land Sale Contract.

 

Restructure ASA means the document entitled ‘Asset Sale and Purchase Agreement – Cobar’ between Isokind, Acelight and the Company dated 29 November 2021.

 

Restructure Land Sale Contract means the document entitled ‘Contract for Sale and Purchase of Land – Cobar’ between Isokind, Acelight and the Company dated 29 November 2021.

 

Retiring Officers means the existing directors, secretaries and public officer of the Company.

 

Rollover Aggregate Amount means the amount equal to the number of Rollover Shares issued in accordance with clause 8.4 multiplied by the Rollover Share Issue Price.

 

Rollover Shares means the Buyer Guarantor Class A Shares to be issued to the Seller under clause 8.4.

 

Rollover Share Issue Price means $10.00 per Rollover Share.

 

Rollover Shares Warranty means each Warranty given in Part C of Schedule 5.

 

Royalty Deed means the royalty deed to be entered into between the Seller, the Buyer Guarantor and the Company, effective from Completion, attached as Annexure G.

 

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SEC means the United States Securities and Exchange Commission.

 

Seller CGT Declaration means a valid declaration (or multiple declarations, if applicable) (in the ATO form NAT 74879-06.2016) from the Seller that either:

 

(a)the Seller is a resident of Australia as defined in the Tax Act; or

 

(b)the relevant Shares are not indirect Australian real property interests as defined in the Tax Act,

 

and that covers the time this document is entered into up to and including Completion.

 

Seller Consolidated Group means the Consolidated Group of which Glencore Investment is, as at the date of this document, the Head Company.

 

Seller Group means Glencore plc and each of its Related Bodies Corporate and Seller Group Member refers to any one of them.

 

Seller Group Insurance Policies means all insurance and/or reinsurance policies (whether under policies maintained with third party insurers or any Seller Group Member) maintained by the Seller Group (other than the Company) under which, immediately prior to the date of this document, the Company is entitled to any benefit.

 

Seller GST Group means the GST Group of which Glencore Operations Australia Pty Limited is, as at the date of this document, the Seller Representative Member and of which the Company is a member (as defined in the GST Act).

 

Seller Head Company means the head company (as defined in section 995-1 of the Tax Act) of the Seller Consolidated Group (from time to time).

 

Seller Indirect Tax Sharing Agreement means the Indirect Tax Sharing Agreement between the Seller Representative Member and members of the Seller GST Group dated 26 March 2021 (as amended from time to time).

 

Seller Representative Member means the representative member (as defined in section 195-1 of the GST Act) of the Seller GST Group (from time to time).

 

Seller Tax Funding Agreement means the Tax Funding Agreement between the Seller Head Company and members of the Seller Consolidated Group dated 1 December 2014 (as amended from time time).

 

Seller Tax Sharing Agreement means the Tax Sharing Agreement between the Seller Head Company and members of the Seller Consolidated Group dated 1 December 2014 (as amended from time time).

 

Seller’s Cure Notice has the meaning given in clause 17.2(a).

 

Shares means the issued shares in the capital of the Company agreed to be sold under this document, as set out in Schedule 1, and Share means any one of those shares.

 

Shuttleton Heads of Agreement means the document titled “Heads of Agreement NSW Exploration Joint Venture” dated May 2005 between the Company and AuriCula Mines Pty Limited (ACN 108 362 027).

 

Specific Policies has the meaning given in Schedule 6.

 

State means the State of New South Wales.

 

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Statutory Claim has the meaning given in clause 12.17.

 

Straddle Return has the meaning given in clause 14.2.

 

Straddle Tax Period has the meaning given in clause 13.3.

 

Sunset Date means 23 December 2022, or such later date agreed by the Seller and the Buyer in writing.

 

Tax means any tax, levy, impost, royalty, charge and Duty paid or payable to, or assessed as being payable by, any fiscal Government Agency, together with any associated fines, penalties and interest.

 

Tax Act means the Income Tax Assessment Act 1936 (Cth), the Income Tax Assessment Act 1997 (Cth) or the Taxation Administration Act 1953 (Cth), as the context requires.

 

Tax Adjustment Statement means the statement prepared by the Seller setting out the Actual Tax Adjustment Amount.

 

Tax Assessment means an assessment, notice or amended assessment issued or action by or on behalf of a fiscal Government Agency whether before or after the date of this document, to the extent to which it:

 

(a)relates to a Tax Period (or part period) up to and including the Effective Time; and

 

(b)relates to any act, transaction, event or omission occurring up to and including the Effective Time (including as a result of the Restructure).

 

Tax Assessment Amount means the amount of Tax that the Company is liable to pay under a Tax Assessment to the extent to which it relates to a Tax Period (or part period) up to and including the Effective Time.

 

Tax Claim means a Claim under the Tax Indemnity or for breach of a Tax Warranty.

 

Tax Expert means an individual with at least 20 years’ relevant experience in Tax and either:

 

(a)as agreed to by the Buyer and the Seller; or

 

(b)if the Buyer and the Seller are unable to agree within 10 Business Days of one party requesting the appointment, the person appointed by the President of the Law Society of New South Wales, at the request of either the Buyer or the Seller.

 

Tax Funding Agreement means any agreement where the Company may be required to pay an amount or be entitled to receive an amount calculated by reference to Tax as a result of it being a member of a Tax group.

 

Tax Indemnity means the indemnity provided in clause 13.1.

 

Tax Law means a law with respect to or imposing any Tax.

 

Tax Period means an income year, tax year, franking year or other period of time referable to the relevant Tax.

 

Tax Return means any return relating to Tax including any document which must be lodged with a Government Agency or which a taxpayer must prepare and retain under a Tax Law (such as an activity statement, amended return, schedule or election and any attachment).

 

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Tax Return Review Period has the meaning given in clause 14.4.

 

Tax Sharing Agreement means a tax sharing agreement entered into in accordance with section 721-25 of the Tax Act.

 

Tax Warranty means each Warranty given under paragraph 14 in Part B of Schedule 5.

 

Tenement Mortgage means the tenement mortgage to be entered into between the Company and the Seller, attached as Annexure H.

 

Third Party Claim has the meaning given in clause 12.2.

 

Title Warranty means each Warranty given in Part A of Schedule 5.

 

Title Warranty Claim means a Claim for breach of a Title Warranty.

 

TFA Deed of Release means a deed of release substantially in the form set out in Schedule 4 of the Seller Tax Funding Agreement.

 

Trading Day means a day on which shares of Buyer Guarantor Class A Shares are traded on the NYSE.

 

Transaction means the transactions the subject of this document including the sale and purchase of the Shares in accordance with this document.

 

Transaction Personal Information means Personal Information which:

 

(a)is in the possession or under the control of the Company;

 

(b)is collected, used or disclosed in connection with a Business; and

 

(c)is or has been disclosed by the Seller to the Buyer under or in connection with this document.

 

Transitional Services Agreement means the transitional services agreement to be negotiated and executed by the parties in accordance with clauses 6.11, 8.2(b)(viii) and 8.3(b)(vi) of this document.

 

TSA Deed of Release means a deed of release substantially in the form set out in Schedule 4 of the Seller Tax Sharing Agreement.

 

Treasurer means the Treasurer of the Commonwealth of Australia.

 

Trust Account has the meaning given in clause 23.20.

 

Trust Agreement has the meaning given in clause 23.20.

 

Unadjusted Purchase Price means US$1,100,000,000.

 

Unreleased Financial Assurance has the meaning given in clause 8.8(e).

 

Warranties means the Title Warranties, Business Warranties and Rollover Shares Warranties.

 

Water Licences means water licences WAL28539, WAL36334, WAL36335, WAL36336 and WAL36337 and any water allocation held in any water account in connection with the foregoing water licences as at Completion.

 

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Western Lands Leases means Western Lands Lease 731, Western Lands Lease 3667, Western Lands Lease 9565 and Western Lands Lease 14587.

 

Working Capital means the aggregate of the assets of the Company less the aggregate of the liabilities of the Company as recorded in the general ledger codes listed under the heading "Working Capital” as set out in the Completion Balance Sheet.

 

1.2General interpretation

 

Headings (including those in brackets at the beginning of a paragraph), and labels used for definitions, are for convenience only and do not affect interpretation. Unless the contrary intention appears, in this document:

 

(a)the singular includes the plural and vice versa;

 

(b)a reference to a document includes any agreement or other legally enforceable arrangement created by it (whether the document is in the form of an agreement, deed or otherwise);

 

(c)a reference to a document also includes any variation, replacement or novation of it;

 

(d)the meaning of general words is not limited by specific examples introduced by “including”, “for example”, “such as” or similar expressions;

 

(e)a reference to “person” includes an individual, a body corporate, a partnership, a joint venture, an unincorporated association and an authority or any other entity or organisation;

 

(f)a reference to a particular person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;

 

(g)a reference to a time of day is a reference to Sydney, Australia time;

 

(h)a reference to A$, AUD or Australian dollars is a reference to the currency of Australia;

 

(i)a reference to $, US$, USD or US Dollars, is a reference to the currency of the United States of America;

 

(j)a reference to “law” includes common law, principles of equity and legislation (including regulations);

 

(k)a reference to any legislation includes regulations under it and any consolidations, amendments, re-enactments or replacements of any of them;

 

(l)a reference to “regulations” includes instruments of a legislative character under legislation (such as regulations, rules, by-laws, ordinances and proclamations);

 

(m)a representation, warranty or indemnity given by two or more persons binds them jointly and severally;

 

(n)a reference to any thing (including an amount) is a reference to the whole and each part of it;

 

(o)a period of time starting from a given day or the day of an act or event, is to be calculated exclusive of that day;

 

(p)if a party must do something under this document on or by a given day and it is done after 5.00pm on that day, it is taken to be done on the next day; and

 

(q)if the day on which a party must do something under this document is not a Business Day, the party must do it on the next Business Day.

 

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1.3Method for Payment

 

Each payment required to be made to the Seller, or a Seller Group Member pursuant to this document must be made in US Dollars by direct deposit of immediately available cleared funds to the credit of an Australian bank account specified in writing by the Seller or Seller Group Member (as applicable) to the Buyer.

 

1.4Payment of Final Adjustment Amount

 

The parties acknowledge and agree that no Rollover Shares will be issued in respect of the Final Adjustment Amount. The Final Adjustment Amount, whether payable by the Buyer or by the Seller, is payable in cash.

 

2Conditions Precedent

 

2.1Conditions Precedent

 

Completion is conditional on each of the following Conditions Precedent being satisfied or waived in accordance with this document:

 

Item Condition Precedent Party entitled to benefit
     (a)     

(FIRB approval) Either:

 

(i) the Treasurer (or the Treasurer’s delegate) has provided a written no objections notification to the proposed Transaction, either without conditions or with conditions acceptable to the Buyer (acting reasonably), acknowledging that it will not be reasonable to determine the conditions are unacceptable if they are tax conditions published at the time of the no objections notification in Guidance Note 12 issued by the Foreign Investment Review Board must be accepted by the Buyer; or

 

(ii) following notice of the proposed Transaction having been given by the Buyer to the Treasurer via the FIRB Application, under the FIRB Act the Treasurer has ceased to be empowered to make any order under Part 3 of the FIRB Act because the applicable time limit on making orders and decisions under the FIRB Act has expired.

 

Buyer
     (b)       (de-SPAC Process) The Buyer Guarantor obtaining the Buyer Guarantor Shareholder Approval. Buyer
     (c)       (Net Tangible Assets) Buyer Guarantor shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) remaining after giving effect to any payments required to be made in connection with the Buyer Guarantor Shareholder Redemptions. Buyer & Seller
     (d)      

(NYSE) The Buyer Guarantor Class A Shares (A) meet the listing requirements of, and remain listed on, NYSE and (B) those to be issued to Seller shall have been approved for listing on the NYSE.

 

Buyer & Seller
     (e)      

(Ministerial Approval) the secretary or minister responsible for administering the Mining Act (or their delegate) gives approval under the Mining Act for and formally registers, subject to any conditions specified in such approval which are satisfactory to the Seller and Buyer (acting reasonably), the transfer to the Company of the Exploration Licences.

 

Buyer & Seller

 

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2.2

Reasonable endeavours

 

Each party must use its reasonable endeavours to obtain the satisfaction of the Conditions Precedent, including procuring performance by a third party. The parties must keep each other informed of any circumstances which may result in any Condition Precedent not being satisfied in accordance with its terms.

 

2.3Specific obligations of co-operation

 

Without limiting clause 2.2:

 

(a)each party must make all necessary and appropriate notifications, applications, filings and submissions which it is obliged to make and supply all necessary and appropriate information for the purpose of enabling the Conditions Precedent to be satisfied (including as required under Schedule 10);

 

(b)no party may take any action that would or would be likely to prevent or hinder the fulfilment of the Conditions Precedent;

 

(c)the Buyer must keep the Seller informed in a timely manner of the status of the satisfaction of the Conditions Precedent including the status of any discussions or negotiations with relevant third parties regarding the Conditions Precedent and, upon the request of the Seller or following the occurrence of any material development, will provide updates as to the status of any voting support and/or non-redemption agreements or PIPE commitments;

 

(d)the Seller must as soon as practicable provide any information reasonably requested by the Buyer in connection with the preparation and submission of the FIRB Application;

 

(e)each party must supply to the other copies of all information supplied for the purpose of enabling the Conditions Precedent to be fulfilled, provided that no party is obliged to provide confidential or commercially sensitive information to any other party;

 

(f)the parties must keep each other informed of any circumstances which may result in any Condition Precedent not being satisfied in accordance with its terms; and

 

(g)each party must notify the other parties within 1 Business Day after becoming aware of the satisfaction of each Condition Precedent or of a Condition Precedent becoming incapable of being fulfilled.

 

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2.4Waiver

 

If a Condition Precedent is expressed to be for the benefit of the Buyer or the Seller, then the relevant party that has the benefit of that Condition Precedent, or both the Seller and the Buyer where a Condition Precedent is expressed to be for the benefit of both the Buyer and the Seller, may waive that Condition Precedent by written notice given to the other party.

 

2.5Termination of agreement

 

If by the Sunset Date each Condition Precedent has not been duly satisfied or waived by the party or parties entitled to waive it in accordance with clause 2.4, this document may be terminated by either party at any time before Completion by notice given to the other party, provided the terminating party is not in default under this document and that it has complied with its obligations under clauses 2.2 and 2.3.

 

2.6Effect of termination

 

If this document is terminated, including under clauses 2.5, 5(a)(ii) or 17.1(b)(ii) or 17.3, then in addition to any other rights, powers or remedies provided by law:

 

(a)each party is released from its obligations under this document other than its obligations under clauses 2.6(c), 16, 17.1(c), 18, 20, 21, 23 and 24;

 

(b)each party retains the rights it has against any other party in connection with any breach or Claim that has arisen before termination (subject to the limitations in this document, including under clauses 11 and 12); and

 

(c)the Buyer must return to the Seller all documents and other materials in any medium in its possession, power or control which contain any information relating to the Company, including the Records.

 

3Sale and purchase of Shares

 

3.1Sale and purchase

 

The Seller agrees to sell the Shares to the Buyer and the Buyer agrees to buy those Shares, on the terms of this document.

 

3.2Free from Encumbrances

 

The Shares must be transferred to the Buyer free from any Encumbrance.

 

3.3Rights attaching to Shares

 

Subject to the terms of this document, the Seller shall retain all rights attached or accruing to the Shares on and from the date of this document until Completion.

 

3.4Seller CGT Declaration

 

(a)The Buyer acknowledges that it has received an executed Seller CGT Declaration from the Seller prior to the execution of this document.

 

(b)If Completion is to occur after the period covered by the declaration in clause 3.4(a), the Seller must provide the Buyer, at least two Business Days before Completion, with a further Seller CGT Declaration such that the Buyer will receive Seller CGT Declarations that covers the period
    from (and including) the date of this document until (and including) the Completion Date.

 

(c)The Buyer agrees that, on the basis of the receipt of the Seller CGT Declaration(s) referred to in this clause 3.4, no payment will be required to be made under Subdivision 14-D of Schedule 1 of the Tax Act.

 

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4Purchase Price

 

4.1Purchase Price

 

The total consideration payable for the Shares is the Purchase Price.

 

4.2Payment of Purchase Price

 

The Purchase Price will be paid as follows:

 

(a)by the Buyer paying the Cash Consideration on Completion in accordance with clause 8.3(a);

 

(b)by the issue of the Rollover Shares to the Seller, in accordance with clause 8.4;

 

(c)if payable by the Buyer to the Seller, by the Buyer paying the Final Adjustment Amount and Final Adjustment Interest Amount in accordance with clause 10.6; and

 

(d)any other adjustments to the Purchase Price are payable in accordance with this document.

 

5Prohibited Events

 

(a)Despite any other provision of this document, if any Prohibited Event exists at any time between the date of this document and Completion, then the Seller in its absolute discretion may, by notice in writing to the Buyer:

 

(i)waive the Buyer’s obligation to provide to the Seller a No Prohibited Events Declaration from each of the Buyer and the Buyer Guarantor under clause 8.3(b)(ii); or

 

(ii)terminate this document.

 

(b)The Buyer, within 2 Business Days after becoming aware of any Prohibited Event, must notify the Seller in writing of the Prohibited Event and each relevant statement contained in Schedule 4 that is, or is reasonably likely to be, incorrect or inaccurate.

 

(c)The Seller may reasonably request, and the Buyer must provide within 5 Business Days after such reasonable request, any Prohibited Event Information.

 

(d)If this document is terminated by the Seller under clause 5(a)(ii), then the Seller may sue the Buyer for damages for breach of this document and clause 2.6 will apply with the necessary changes.

 

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6Pre-Completion

 

6.1Conduct of Business

 

Subject to clause 6.2, the Seller must ensure that (except as permitted by this document or consented to after the date of this document by the Buyer in writing) from the date of this document until Completion:

 

(a)(related party contract) the Company, including as principal in connection with any agency relationship, will not enter into any new contract or arrangement in connection with the Business in which any Related Party of the Company is interested, directly or indirectly unless the same or a similar arrangement has existed in the two years preceding the date of this document or any such contract or arrangement is a non-material amendment of, or variation to, any existing arrangements;

 

(b)(conduct of business) the Company conducts the Business materially in its ordinary and usual course;

 

(c)(no material commitments) the Company does not enter into or vary any commitment or series of related commitments which will involve:

 

(i)capital expenditure or an obligation relating to the Business in excess of $10,000,000; and/or

 

(ii)other expenditure relating to the Business in excess of $10,000,000 in any year,

 

  other than where any proposed capital expenditure or expenditure on such items will be less than or equal to 110% of the corresponding cost reflected in the relevant Annual Program and Budget;

 

(d)(no compromise) the Company does not, except in the ordinary and usual course of the Business, settle, offer or propose to settle, compromise, assign or release any debts, obligations or other claims of the Business;

 

(e)(no external guarantees) the Company does not guarantee the obligations of any person, except in accordance with the Deed of Cross Guarantee;

 

(f)(Mining Tenements) the Company:

 

(i)complies in all material respects with the terms of the relevant Mining Tenements, keeps each relevant Mining Tenement in good standing, and renews each relevant Mining Tenement before its expiry date; and

 

(ii)does not surrender, relinquish or terminate any relevant Mining Tenement;

 

(g)(Approvals) the Company:

 

(i)complies in all material respects with the terms of Approvals which are material to the Business; and

 

(ii)does not surrender any material Approval;

 

  (h) (no disposals) except for the sale of copper, silver and gold (as ore, concentrate or metal) in the ordinary and usual course of business, there is no disposal of, agreement to dispose of, encumbrance or grant of an option over, or declaration of a trust in respect of, any Mining Tenement (regardless of its value), or any asset or series of related assets of the Business worth more than $10,000,000 (based on the greater of market value and book value) other than in accordance with the relevant Annual Program and Budget;

 

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(i)(insurances) the Company maintains in force insurance policies equivalent in nature (including conditions) and level of cover provided as the insurance policies maintained in force in respect of the Business as at 30 June 2021 and as disclosed in the Disclosure Material;

 

(j)(employees) the Company does not hire any person or dismisses any Employee whose annual aggregate compensation is in excess of $500,000, except:

 

(i)if necessary to comply with applicable laws, any budget or operating plan in respect of the Mine;

 

(ii)the termination of any Employee for cause in accordance with that Employee’s contract of employment;

 

(iii)the hiring of any person to fill an existing vacancy or to replace any Employee that has resigned or has been terminated for cause; or

 

(iv)if there is no material change to the terms of employment of any Employee;

 

(k)(industrial award) no state or federal industrial award or agreement in respect of any Employee is entered into or varied;

 

(l)(mergers, acquisitions and other transactions) the Company will not:

 

(i)merge or consolidate with any other corporation or acquire all or substantially all of the shares or the business or assets of any other person, firm, association, corporation or business organisation, or agree to do any of the foregoing; or

 

(ii)enter into any agreement with another person creating a joint venture, partnership, royalty, streaming transaction or other similar arrangement;

 

(m)(no Encumbrances) the Company does not encumber any Asset other than in the ordinary course of business;

 

(n)(Material Business Contracts) the Company does not enter into, amend in a material respect, or terminate, any Material Business Contract in each case other than in the ordinary course of the Business, or enters into (or make any binding offer to enter into) any other obligation which is not in the ordinary course of the Business;

 

(o)(Offtake) other than the Offtake Agreement, the Company does not enter into any agreement or arrangement for the sale, transfer or disposal of copper, silver and gold (as ore, concentrate or metal) that will apply or be binding on the Company on or at any time after Completion; and

 

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(p)(Share Capital) the Company does not:

 

(i)distribute or return any capital to its members or otherwise reduce its capital;

 

(ii)buy back any of its shares;

 

(iii)transfer any of the Shares; or

 

(iv)issues any shares, options or securities that are convertible into shares in the Company,

 

  provided that this clause 6.1(p) will not prevent the Company from reducing or increasing its share capital in order to settle any Intercompany Payables or Intercompany Receivables.

 

6.2Exceptions

 

(a)Notwithstanding the terms of clause 6.1, the Company may:

 

(i)(mandatory surrender) surrender, transfer, cancel or abandon mining tenements where the surrender, transfer, cancellation or abandonment is for the purpose of renewal, substitution, consolidation, conversion, minor tenement boundary adjustments or to meet mandatory surrender obligations;

 

(ii)(permitted transactions) do anything which is contemplated, authorised or required by this document or any other agreement, arrangement or material that is disclosed in the Disclosure Material;

 

(iii)(emergency) do anything which is reasonably required in order to respond to an emergency, including to protect the health and safety of any person;

 

(iv)(compliance with law) do anything which is required by law, regulations or a Government Agency;

 

(v)(distributions) other than to the extent it would result in the Company having less that the Minimum Working Cash Amount as at Completion, declare, determine or pay, on or before the Effective Time, any dividend or other distribution of profits, non-trade payables, non-trade receivables or assets (including any return of capital) to or for the benefit of any Seller Group Member;

 

(vi)(debt forgiveness) cancel, discount, waive, release or forgive (or agree to cancel, discount, waive, release or forgive), on or before the Effective Time, any indebtedness for money owed to the Company by any Seller Group Member or another company, or waive any claim or right against any Seller Group Member or another company;

 

(vii)(clear exit) do anything which is required under, or to give effect to, a Tax Sharing Agreement, Indirect Tax Sharing Agreement or Tax Funding Agreement, including anything to ensure that the Company obtains a clear exit, executing any releases, and doing anything else necessary or desirable to ensure that no amounts are owing to or from the Company under a Tax Sharing Agreement, Indirect Tax Sharing Agreement or Tax Funding Agreement at Completion; and

 

(viii)(debt forgiven) have any indebtedness for money owed from the Company to any Seller Group Member or another company cancelled, discounted, waived, released or forgiven (or agree to have cancelled, discounted, waived, released or forgiven), or have any claim or right against the Company waived, in each case on or before the Effective Time.

 

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(b)In complying with its obligations under clause 6.1, the Seller is not required to do, omit to do, or allow to be done, anything which in the Seller’s reasonable opinion would:

 

(i)unreasonably disrupt the Company or the operation of any aspect of the Business;

 

(ii)cause a breach of any obligation that the Seller or its Related Bodies Corporate owe to any third party; or

 

(iii)materially prejudice the likelihood of Completion occurring.

 

6.3Access to business premises and Records

 

(a)Subject to clause 6.3(b), the Seller agrees to allow the Buyer and its Representatives access to the Mine and the Records, on reasonable notice and at all reasonable times before the Completion Date, to familiarise itself with the Business.

 

(b)Access to the Mine under clause 6.3(a) is subject to the Seller receiving a written notice from the Buyer at least 5 Business Days in advance of a requested Mine visit during Business Hours and is limited to no more than two Mine visits per month during the period prior to Completion (unless otherwise agreed by the Seller, with such agreement not to be unreasonably withheld or delayed).

 

(c)The Buyer acknowledges and agrees that:

 

(i)subject to clause 2.6(c), the Buyer and its Representatives cannot copy or remove any Records before Completion, other than to the extent the Buyer is reasonably required to do so, directly or indirectly, for the purposes of satisfying Conditions Precedent 2.1(a) or 2.1(b);

 

(ii)the Seller or its Representatives may supervise any access to the Mine by the Buyer or its Representatives under this clause 6.3; and

 

(iii)the Buyer and its Representatives will not be permitted to consult with or otherwise maintain communications with any employees of the Company other than:

 

(A)for the purposes of ensuring continuity of the Company’s workforce post Completion provided this is conducted on the terms proposed by the Seller (acting reasonably) and under the supervision of the Seller’s Representatives; or

 

(B)unless expressly permitted by the Seller in writing.

 

  (d) In exercising its rights under this clause 6.3, the Buyer and its Representatives must not cause disruption to, or have an adverse effect on, the day to day conduct of the Business and must strictly comply with all instructions and procedures of the Company and the Seller (including any site or safety requirements).

 

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6.4Confidentiality undertaking

 

Before any of its Representatives obtains access under clause 6.3, the Buyer must ensure that each Representative enters into a confidentiality agreement with the Seller which includes an undertaking similar to that contained in clause 18.1.

 

6.5Clear exit

 

(a)The Seller must, no less than 5 Business Days before the Completion Date, provide the Buyer with a copy of all exit calculations in relation to the Clear Exit Amount and Leaving Indirect Tax Contribution Amount for the Buyer’s review.

 

(b)The Seller must consider, in good faith, any comments or objections from the Buyer in relation to any exit calculations made in accordance with clause 6.5(a).

 

(c)The Seller must procure that the Company pays the Clear Exit Amount (by promissory note or otherwise) prior to Completion.

 

(d)The Seller must procure that the Company pays the Leaving Indirect Tax Contribution Amount (by promissory note or otherwise) prior to Completion.

 

6.6Buyer to provide information prior to Completion

 

The Buyer must provide to the Seller no later than 10 Business Days before the Completion Date:

 

(a)the full name of each proposed Incoming Officer;

 

(b)the address of the proposed registered office of the Company;

 

(c)details of any changes proposed to the authorities for the bank accounts of the Company; and

 

(d)copies of the draft form of Replacement FA Guarantees which the Buyer intends on providing at Completion under clause 8.3(b)(iii) such that the Seller can provide reasonable comments on the terms of those proposed Replacement FA Guarantees, which the Seller must consider and incorporate to the extent it is reasonably practicable to do so.

 

6.7Seller to provide information prior to Completion

 

The Seller must provide to the Buyer, no later than 2 Business Days before the Completion Date, a notice containing the amount of the Payout Debt Amount and the relevant details to enable the Buyer to pay the Payout Debt Amount to the persons to whom those amounts are due.

 

6.8Exclusivity – Buyer Guarantor

 

During the period following the date of this document and prior to Completion, Buyer Guarantor shall not take, nor shall it permit any of its respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than Seller and/or any of its Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination as defined in Buyer Guarantor’s organizational documents (a “Business Combination Proposal”) other than with Seller and its Affiliates and Representatives. Buyer Guarantor shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.

 

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6.9Exploration Assets

 

(a)The Seller must procure that each of Acelight, Isokind and Actway (as applicable):

 

(i)take all reasonable steps to promptly seek a waiver of a minor procedural matter under section 387C(a) of the Mining Act in respect of a previous approval of the minister to transfer the Exploration Licences to the Company and/or promptly apply for ministerial approval to transfer the Exploration Licences to the Company in accordance with the relevant provisions of the Mining Act (Ministerial Approval);

 

(ii)upon receiving the relevant waiver under paragraph (i) above and/or Ministerial Approval, promptly, and by not later than 5 Business Days after the date the relevant waiver or Ministerial Approval is received, prepare and lodge all relevant tenement transfer forms to effect the registration of the transfer of the Exploration Licences to the Company; and

 

(iii)use all reasonable endeavours to assign all of their respective rights and interests (as applicable) in the following documents to the Company prior to Completion:

 

(A)Termination and Royalty Deed Isokind Projects (EL6140, EL6501, EL6739) originally entered into by Isokind, Oxley Exploration Pty Ltd, Helix Resources Ltd and Glencore International AG dated on or around 8 February 2022; and

 

(B)‘Mt Hope’ Joint Venture between the Company, Actway Pty Ltd (ACN 090 165 174) and AuriCula Mines Pty Ltd (ACN 108 362 027);

 

  (together, the “Exploration JV Documents”).

 

(b)The Seller must procure that the Company uses all reasonable endeavours to:

 

(i)apply for and register the transfer of the Exploration Licences to the Company in accordance with clause 6.9(a)(ii);

 

(ii)accept any assignment to it under clause 6.9(a)(iii) and assume all obligations and Liabilities of Isokind and Actway (as applicable) under or in connection with the Exploration JV Documents; and

 

  (iii) if required under an Exploration JV Document, enter into any deed of covenant with any third parties to the Exploration JV Document in order to give effective to the assignment under clause 6.9(a)(iii) and not agree to any variation to the current terms of the Exploration JV Document, other than with the Buyer’s prior written consent (acting reasonably).

 

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(c)In the event that any obligations under clauses 6.9(a)(iii) and 6.9(b) are not satisfied prior to Completion, then, on and from Completion:

 

(i)the Seller must continue and use its reasonable endeavours to procure performance by each of Acelight, Isokind and Actway under clause 6.9(a);

 

(ii)the Seller will no longer be responsible for its obligations under clauses 6.9(b)(ii) and 6.9(b)(iii);

 

(iii)the Buyer must immediately assume the Seller’s performance of any obligations under clauses 6.9(b)(ii) and 6.9(b)(iii) and cooperate in good faith with the Seller and the Seller will use its reasonable endeavours to give effect to the assignment of and assumption of the Isokind and Actway interests under the Exploration JV Documents, unless and until such time as the Buyer and the Seller agree (at their absolute discretion) in writing that it is unfeasible to do so at which point their obligations under this clause will cease.

 

6.10Potential Re-domiciliation

 

(a)The Seller acknowledges that, prior to Completion, the Buyer Guarantor may, with the consent of the Seller (such consent not to be unreasonably withheld or delayed), undertake a re-domiciliation of the Buyer Guarantor by way of an amalgamation, merger, scheme of arrangement or other form of business combination as permitted under applicable law (the “Re-Domiciliation”), the surviving entity of which will be the ultimate holding company of the Buyer (the “Re-Domiciled Buyer Guarantor”), provided that in no event shall such Re-Domiciliation result in a delay to Completion and the Buyer Guarantor shall determine the terms of such Re-Domiciliation as promptly as practicable following the date of this document and disclose such terms to the Seller in connection with seeking the Seller’s consent. If required by the Seller, the Re-Domiciled Buyer Guarantor must enter into a deed of covenant with the Seller (on terms acceptable to the Seller, acting reasonably) under which the Re-Domiciled Buyer Guarantor covenants to be bound by, observe and duly perform the terms and conditions of this document as though it was the Buyer Guarantor.

 

(b)Upon any Re-Domiciliation occurring:

 

(i)all provisions of this document and any other document related to the Transaction will continue in full force and effect;

 

(ii)the Re-Domiciled Buyer Guarantor will assume all of the rights and obligations of the Buyer Guarantor under this document; and

 

(iii)references in this document, and all other documents entered into in connection with the Transaction, to the Buyer Guarantor will be a reference to the Re-Domiciled Buyer Guarantor.

 

6.11Transitional Services Agreement

 

The Buyer and the Seller must each, acting reasonably and in good faith, promptly negotiate and finalise the terms of the Transitional Services Agreement which is to generally take the form of the document set out in Annexure A (subject to necessary changes to give effect to the nature of the services sought by or on behalf of the Buyer).

 

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7Estimated Purchase Price

 

7.1Calculation of Estimated Purchase Price

 

(a)The Seller must, acting reasonably, at least 2 Business Days prior to the Completion Date, provide the Buyer with a statement setting out the Estimated Net Debt Amount, the Estimated Working Capital Amount and the Estimated Tax Adjustment Amount (the “Estimated Statements”). The Estimated Statements will be used by the Seller to determine the Estimated Adjustment Amount and will be prepared in accordance with the Accounting Principles.

 

(b)The Estimated Net Debt Amount, the Estimated Working Capital Amount, the Estimated Tax Adjustment Amount and the Estimated Adjustment Amount must be calculated as follows:

 

Estimated Adjustment Amount means the amount calculated in accordance with the following formula:

 

A + B + C

 

Whereby:

 

A means the Estimated Net Debt Amount;

 

B means the Estimated Working Capital Adjustment Amount; and

 

C means the Estimated Tax Adjustment Amount.

 

Estimated Net Debt Amount means the Seller’s estimate of the Actual Net Debt Amount (in US$) provided to the Buyer in accordance with clause 7.1(a).

 

Estimated Working Capital Adjustment Amount means the amount (in US$) (which may be positive or negative) equal to the Estimated Working Capital Amount less the Base Working Capital.

 

Estimated Working Capital Amount means the Seller’s estimate (in US$) of the Actual Working Capital Amount provided to the Buyer in accordance with clause 7.1(a).

 

Estimated Tax Adjustment Amount means the Seller’s estimate of the Actual Tax Adjustment Amount as at Completion provided to the Buyer in accordance with clause 7.1(a).

 

Base Working Capital means AUD -$7,158,431, which is to be converted to US$ in accordance with paragraph 2.2 of the Accounting Principles on the basis of the Seller’s estimate of the relevant AUD to USD foreign exchange rate as at the Effective Time (Estimated FX Rate).

 

(c)If the Seller’s assessment of the Estimated Adjustment Amount is:

 

(i)positive, the Estimated Purchase Price will be an amount (in US$) equal to the Unadjusted Purchase Price for the Shares plus the Estimated Adjustment Amount;

 

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(ii)zero, the Estimated Purchase Price will be an amount (in US$) equal to the Unadjusted Purchase Price for the Shares; and

 

(iii)negative, the Estimated Purchase Price will be an amount (in US$) equal to the sum of Unadjusted Purchase Price for the Shares and the negative Estimated Adjustment Amount (which will mean the Estimated Purchase Price is lower than the Unadjusted Purchase Price for the Shares).

 

8Completion

 

8.1Time and place of Completion

 

Completion will take place at 11am (Sydney time) on the Completion Date at the offices of King & Wood Mallesons in Sydney or any other time and place agreed between the Seller and the Buyer.

 

8.2Seller obligations

 

On Completion, the Seller must:

 

(a)(repayment of debt) subject to the Buyer complying with its obligations under clause 8.3(a)(ii), procure that any Payout Debt Amount is applied such that the relevant Payout Debt Amount is paid in full;

 

(b)deliver to the Buyer:

 

(i)(Share certificates and transfers) the share certificate(s) for the Shares, and the share transfer form(s), duly executed by the Seller, in favour of the Buyer for of all Shares;

 

(ii)(Company Books and common seal) the Company Books and the common seal (if any) of the Company, except that if the Seller is legally required to retain any of the documents, the Seller may deliver copies of those documents to the Buyer;

 

(iii)(resignations) written resignations of the Retiring Officers, effective on Completion;

 

(iv)(directors’ resolution) a copy of a resolution of the directors of the Company resolving with effect from Completion that:

 

(A)the transfer(s) of the relevant Shares be duly registered (subject only to payment of any applicable Duty);

 

(B)each Incoming Officer be appointed to the board of directors (or as the public officer, as applicable) of the Company;

 

(C)the resignation of each Retiring Officer be accepted (but so that a properly constituted board of directors of the Company is in existence at all times);

 

(D)the registered office of the Company be changed to that notified by the Buyer pursuant to clause 6.6(b); and

 

(E)the authorities for the bank accounts of the Company be changed in accordance with the changes notified by the Buyer pursuant to clause 6.6(c).

 

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(v)(release in favour of Retiring Officers) a release executed by the Company in favour of the relevant Retiring Officers substantially in the form set out in Annexure B;

 

(vi)(TFA Deed of Release and TSA Deed of Release) a copy of the TFA Deed of Release and the TSA Deed of Release executed by the Company and the Seller Head Company;

 

(vii)(ITSA Deed of Release) a copy of the ITSA Deed of Release executed by the Company and the Seller Representative Member;

 

(viii)(Transitional Services Agreement) a counterpart of the Transitional Services Agreement duly executed by all relevant Seller Group Members and the Company;

 

(ix)(Clear Exit Payment) evidence that any Clear Exit Amount and Leaving Indirect Tax Contribution Amount has been paid (whether by the issue of a promissory note or otherwise) by the Company (if a payment is required to be made);

 

(x)(release of class order guarantee) a copy of a certificate of the directors of Glencore Investment certifying that the sale of the relevant Shares to the Buyer under this document is a bona fide sale and that the consideration for the sale is fair and reasonable pursuant to clause 4.2(c)(i) of the Deed of Cross Guarantee;

 

(xi)(Registration Rights Agreement) a counterpart of the Registration Rights Agreement duly executed by all relevant Seller Group Members;

 

(xii)(Offtake Agreement) a counterpart of the Offtake Agreement duly executed by the Company and all relevant Seller Group Members; and

 

(xiii)(Royalty Deed) a counterpart of the Royalty Deed and Tenement Mortgage duly executed by the Company and all relevant Seller Group Members.

 

8.3Buyer obligations

 

On Completion the Buyer must:

 

(a)(payment) pay:

 

(i)the Seller the Cash Consideration; and

 

(ii)as directed by the Seller, any Payout Debt Amount pursuant to clause 6.7 (as required and which will give rise to commensurate amounts owing by the Company the Buyer); and

 

(b)deliver to the Seller:

 

(i)(going concern declaration) an executed declaration of intention to operate the Company as a going concern to the directors of the Company in the form set out in Annexure C;

 

(ii)(No Prohibited Events Declarations) executed No Prohibited Events Declarations from each of the Buyer and the Buyer Guarantor;

 

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(iii)(replacement Financial Assurances) the Replacement FA Guarantees, in each case on terms and in a form satisfactory to the Seller (acting reasonably), which the Seller considers necessary or desirable to replace the Financial Assurances together with a valid and duly executed power of attorney granting the Seller with the power to effect and lodge such Replacement FA Guarantees on behalf of the Buyer with the State;

 

(iv)(consents to act) executed consents to act of each Incoming Officer;

 

(v)(Registration Rights Agreement) a counterpart of the Registration Rights Agreement duly executed by all relevant Buyer Group Members;

 

(vi)(Transitional Services Agreement) a counterpart of the Transitional Services Agreement duly executed by all relevant Buyer Group Members; and

 

(vii)(Royalty Deed) a counterpart of the Royalty Deed duly executed by the Buyer Guarantor and all relevant Buyer Group Members.

 

8.4Buyer Guarantor’s obligations at Completion

 

At Completion, Buyer Guarantor must issue to the Seller 5,000,000 Rollover Shares in accordance with Schedule 10.

 

8.5Seller’s obligations in respect of Rollover Shares

 

The Seller:

 

(a)agrees to accept the issue of the Rollover Shares, and to become a member of Buyer Guarantor; and

 

(b)agrees to execute the Registration Rights Agreement to constitute the Seller as holder of the Rollover Shares.

 

8.6Simultaneous actions at Completion

 

In respect of Completion:

 

(a)the obligations of the parties under this document are interdependent; and

 

(b)unless otherwise stated, all actions required to be performed by a party at Completion are taken to have occurred simultaneously on Completion.

 

8.7Post-Completion notices

 

Each party will immediately give to the other parties all payments, notices, correspondence, information or enquiries in relation to the Company which it receives after Completion and which belong to the other parties.

 

8.8Release of Financial Assurances

 

  (a) On and from Completion, the Seller and the Buyer must use all reasonable endeavours to procure the full release of each Financial Assurance (including by lodging the Replacement FA Guarantees with the State within 5 Business Days after Completion).

 

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(b)The Buyer must promptly do everything reasonably necessary to assist the Seller with the release of the Financial Assurances including:

 

(i)lodging duly completed and executed forms as may be required by the State; and

 

(ii)providing the State with any further financial assurance amount in relation to the Mining Tenements and related environmental Approvals if required by the State.

 

(c)If any amount is drawn against the Financial Assurances after Completion the Buyer must immediately on demand pay to the Seller an amount equal to the amount drawn.

 

(d)Without limiting clause 8.8(c), on and from Completion the Buyer agrees to indemnify and hold harmless the Seller and its Related Bodies Corporate from and against any Liability the Seller or its Related Bodies Corporate may incur or sustain in relation to the Financial Assurances (including any amount drawn down on such Financial Assurances).

 

(e)If, despite the Buyer and/or the Seller (as applicable) using all of their respective reasonable endeavours to lodge the Replacement FA Guarantees with the State, any Financial Assurance has not been duly released by the State within 20 Business Days after Completion (Unreleased Financial Assurance), the Buyer must immediately provide to the Seller a Back to Back Financial Assurance. Drafts of all such Back to Back Financial Assurances must be provided to the Seller by no later than 5 Business Days prior to the aforementioned date.

 

(f)If any Unreleased Financial Assurance is subsequently released, the Seller agrees to immediately release, to the same extent, any corresponding Back to Back Financial Assurance.

 

8.9Notice to ASIC of release of class order guarantee

 

(a)No later than the next Business Day after Completion:

 

(i)the Seller must procure that Glencore Investment lodges with ASIC the certificate referred to in clause 8.2(b)(x) in accordance with clause 4.2(c)(ii) of the Deed of Cross Guarantee; and

 

(ii)the Buyer must procure that the Company lodges with ASIC a copy of the certificate referred to in clause 8.9(a)(i) and a notice of disposal of the Company, in accordance with clause 4.2(c)(ii) and (iii) of the Deed of Cross Guarantee.

 

9Conduct of business after Completion

 

9.1Exclusion of officers from liability

 

(a)From Completion, the Buyer, to the maximum extent permitted by law, will ensure that the Company does not take any action or proceeding or make any Claim or demand against any of the present or former officers, including directors and secretaries, of the Company.

 

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(b)The Buyer acknowledges that this clause 9.1 is for the benefit of those officers and is held on trust for them by the Seller.

 

9.2Use of Seller intellectual property

 

Except as permitted by clause 9.3, the Buyer must not and must ensure that the Company does not, after Completion use any name, intellectual property or trade mark which is substantially identical or deceptively similar to a name, intellectual property or trade mark owned by the Seller or any of its Related Bodies Corporate.

 

9.3Phase out of use of Seller name and marks

 

The Buyer must use its best endeavours to ensure that, no later than two months after Completion, no sign on, or related to, any of the premises or assets used in connection with the Business displays any name or trade mark owned by the Seller or a Related Body Corporate of the Seller including the name “Glencore” or any words which may be similar to or likely to be confused with the name “Glencore”.

 

9.4Payment of Intercompany Amounts

 

(a)On and from Completion, the Buyer must pay (or ensure that the Company pays) the Intercompany Payables to the Seller Group Member, or as the Seller otherwise directs, when they fall due in the ordinary course of business and in no event later than 30 days after Completion.

 

(b)On and from Completion, the Seller must pay (or ensure that a Seller Group Member pays) to the Company, or as directed by the Buyer, the Intercompany Receivables when they fall due in the ordinary course of business and in no event later than 30 days after Completion.

 

9.5Compliance with Seller Group Member contracts

 

The Buyer must procure that, on and from Completion, the Company complies with its obligations under any contract between the Company (which for the avoidance of doubt includes any contract that is entered into on the Company’s behalf by an agent) and a Seller Group Member.

 

9.6Seller Group Insurance Policies

 

(a)The Buyer acknowledges and agrees that as at the date of this document, all insurances in relation to the Company and the Business exist under group insurance policies arranged by the Seller Group and that:

 

(i)other than in respect of any Claim arising as a result of any fact, matter or circumstance occurring prior to Completion, such insurances will cease to apply to the Company and the Business on and from Completion; and

 

(ii)from Completion, the Buyer will be responsible for arranging any insurances that are necessary, or which it considers are desirable, in relation to the Company and the Business.

 

(b)Subject to clause 9.6(c), in the period before, on or after Completion:

 

  (i) the Seller must make any property damage Claim in connection with the Company or the Business under the Seller Group’s property damage insurance policy for an insurable event occurring in the period prior to Completion, where appropriate or necessary (in the reasonable opinion of the Seller); and

 

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(ii)except for proceeds relating to a property damage Claim to the extent that the damaged property has been repaired or reinstated prior to Completion, the Seller must ensure and procure that, any proceeds received (net of deductibles) on account of a property damage claim arising out of property damage insurance policy of a Seller Group Member in connection with the Company or the Business are held for the benefit of the Buyer or the Company and are:

 

(A)before Completion, utilised for the purposes of repair or reinstatement of the damaged property; or

 

(B)on or after Completion, paid to the Buyer or the Company in respect of the relevant loss (or other third parties as required by the policy), within 10 Business Days after receipt.

 

(c)For the avoidance of doubt:

 

(i)to the extent that there is any Claim or potential Claim under any Seller Group Insurance Policy other than a Claim under a property damage policy as set out in clause 9.6(b) (for example, a Claim under a business interruption policy or public liability policy), the Buyer, and the Company after the Effective Time, have no rights in relation to such Claim including to commence, continue or recover under such Claim; and

 

(ii)where an insurance policy is a combined policy which covers property damage and another component of loss (e.g. a property damage and business interruption policy), clause 9.6(b) will only apply to the property damage component of such policy and will not apply to any other component and/or loss under that policy.

 

(d)The Buyer agrees to provide all co-operation reasonably required by the Seller Group after Completion with respect to outstanding insurance claims in connection with the Company or the Business.

 

9.7Records

 

(a)For 12 years after the Completion Date the Buyer will keep and preserve the Company Books, any Records and other documents delivered to it on Completion.

 

(b)After Completion the Buyer, upon written request, will permit the Seller to have access to those Company Books, Records and documents during Business Hours as the Seller reasonably requires and at the Seller’s Cost. The Buyer permits the Seller to keep a copy of all Company Books, Records, files and documents on and from Completion and permits the use, and disclosure to a court or third party, of those documents in connection with the conduct or defence of any Claim.

 

9.8Wrong Pockets

 

If, after Completion, the Buyer is or becomes aware that any material asset, Approval, authorisation, tenure or other property that, before the date of this document, is or has been used by the Seller or any of its Related Bodies Corporate for the purposes of conducting the Business, and which is required in order for the Company to operate the Business following Completion, is not effectively held and vested in the Company as at Completion (Further Asset), then the Buyer must promptly notify the Seller in writing and the Seller must, and must procure that its Related Bodies Corporate must, if required by the Buyer, at the Seller’s sole cost (including any Tax):

 

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(a)acknowledge the Company’s title to that Further Asset and hold the Further Asset on trust for the Company and at the Buyer’s direction; and

 

(b)within 10 Business Days of notice being given under this clause, execute all further documents and do all things necessary to transfer, or procure the transfer of, the relevant Further Asset to the Company for the aggregate consideration of $1.00.

 

9.9Rollover elections

 

(a)The parties acknowledge that the Seller intends to make all necessary elections to ensure that the Seller obtains the capital gains tax rollover relief on disposal of the Shares to the Buyer contained in Subdivision 124-M of the Tax Act.

 

(b)The Buyer Guarantor must not, at any time, make a choice under section 124-795(4) of the Tax Act to prevent the Seller from choosing rollover relief under subdivision 124-M of the Tax Act.

 

(c)The Buyer Guarantor will, if requested by the Seller, make a choice to obtain the roll-over in subdivision 124-M of the Tax Act with respect to the Shares for the purposes of section 124-780(3)(d) of the Tax Act.

 

10Final Adjustment Amount

 

10.1Completion Statements

 

The Seller must, as soon as reasonably practicable after Completion (and, in any event, within 90 days after that date), prepare and deliver to the Buyer drafts of the Completion Statements and the Tax Adjustment Statement together with their draft calculation of the Final Adjustment Amount.

 

10.2Calculation of Final Adjustment Amount

 

The Final Adjustment Amount is to be calculated as follows:

 

Final Adjustment Amount means the amount (in US$) calculated in accordance with the following formula:

 

D + E + F + G

 

Whereby:

 

D means the Final Net Debt Adjustment Amount (in US$);

 

E means the Final Working Capital Adjustment Amount (in US$);

 

F means the Final Tax Adjustment Amount (in US$); and

 

G means the FX Adjustment.

 

Final Net Debt Adjustment Amount means the amount (in US$ and which may be positive or negative) equal to the Actual Net Debt Amount less the Estimated Net Debt Amount.

 

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Actual Net Debt Amount means Net Debt (in US$) as at the Effective Time as set out in the Completion Net Debt Statement and calculated in accordance with the Accounting Principles.

 

Final Working Capital Adjustment Amount means the amount (in US$ and which may be positive or negative) equal to the Actual Working Capital Amount less the Estimated Working Capital Amount.

 

Actual Working Capital Amount means Working Capital (in US$) as at the Effective Time as set out in the Completion Working Capital Statement and calculated in accordance with the Accounting Principles.

 

Final Tax Adjustment Amount means the amount (which may be positive or negative) equal to the Actual Tax Adjustment Amount less the Estimated Tax Adjustment Amount.

 

FX Adjustment means the amount (in US$ and which may be positive or negative) equal to the Estimated Adjustment Amount calculated in the same way as set out in clause 7.1, except that the Base Working Capital will be converted to US$ in accordance with paragraph 2.2 of the Accounting Principles on the basis of the actual AUD to USD foreign exchange rate as at the Effective Time (instead of the Estimated FX Rate) less the Estimated Adjustment Amount.

 

10.3Access to information

 

After Completion, the Buyer shall provide the Seller and its Representatives with reasonable and free access during normal business hours to such personnel, properties, books, records and work papers of the Business which relate to the period prior to Completion as the Seller may reasonably request from time to time, which access shall be provided until the Completion Statements have become final and binding on the Buyer and the Seller.

 

10.4Review of Completion Statements and dispute resolution procedure

 

(a)The Completion Statements shall become final and binding upon the Buyer and the Seller 30 Business Days following the Buyer’s receipt thereof (including relevant supporting calculations, schedules, analyses and related working papers) unless the Buyer gives written notice of its disagreement with any component of the Completion Statements to the Seller prior to such date, setting out:

 

(i)reasonable details of each of the matters in dispute; and

 

(ii)a separate Australian Dollar value for each of those matters,

 

(Dispute Notice).

 

(b)If a Dispute Notice is received by the Seller in accordance with clause 10.4(a), then the Completion Statements shall become final and binding upon the earlier of:

 

(i)the date on which any disputes with respect to the matters specified in the Dispute Notice are resolved in writing by agreement of the Seller and the Buyer; or

 

(ii)the date on which the relevant disputes are finally resolved in writing by the Independent Expert.

 

  (c) If the Buyer issues a Dispute Notice under clause 10.4(a), the Buyer and the Seller must negotiate in good faith and use commercially reasonable endeavours to resolve the matters the subject of the Dispute Notice and agree upon the form and content of the Completion Statements, within 10 Business Days after the issue of the Dispute Notice (or any longer period agreed in writing between the parties).

 

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(d)If any of the matters the subject of the Dispute Notice are not resolved and the form and content of the Completion Statements are not agreed in the period referred to in clause 10.4(c), the Seller and the Buyer must within 2 Business Days request the Resolution Institute to appoint an Independent Expert to resolve the unresolved matters the subject of the Dispute Notice.

 

(e)The Independent Expert shall consider only such matters that remain in dispute. For the avoidance of doubt, to the extent the Independent Expert's written statement purports to make any determination with respect to anything other than the disputed items and amounts submitted to the Independent Expert, it shall be disregarded by the Buyer and the Seller.

 

(f)The Independent Expert shall determine any disputed items based solely on the provisions of this document, the application of the Accounting Principles and the written submissions of the Seller and the Buyer and the responses to those submissions, and shall not conduct an independent review of any related financial statements.

 

(g)In no event may the Independent Expert assign a value to any item greater than the greatest value for such item claimed by either the Seller in the applicable Completion Statement or the Buyer in the Dispute Notice or less than the smallest value for such item claimed by either the Seller in the applicable Completion Statement or the Buyer in the Dispute Notice.

 

(h)The Independent Expert shall afford the Seller and the Buyer a reasonable opportunity to make a written submission in support of their respective positions and require that each of the Seller and the Buyer supply the other with a copy of any written submission made to the Independent Expert. The Independent Expert shall provide the Seller and the Buyer a reasonable opportunity to submit a written response to the other's submission. Unless otherwise agreed by the Independent Expert, all submissions must be provided to the Independent Expert no later than 10 Business Days after the appointment of the Independent Expert.

 

(i)The Seller and the Buyer shall use their respective good faith efforts to cause the Independent Expert to render a decision resolving the matters in dispute within 15 Business Days following the submission of such matters to the Independent Expert.

 

(j)The Independent Expert must act as an expert and not as an arbitrator. The Independent Expert's determination shall be set forth in a written statement delivered to the Seller and the Buyer and shall include reasons for each relevant determination unless otherwise agreed to by the Seller and the Buyer and shall be final, binding and non-appealable absent manifest error or fraud.

 

(k)All fees and expenses of the Independent Expert shall be shared equally by the Seller, on the one hand, and the Buyer, on the other. Each of the Seller and the Buyer must bear their own costs of any dispute under this clause 10.4.

 

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10.5Review of Tax Adjustment Statement

 

Clause 10.4 shall apply, with all necessary changes, to the Tax Adjustment Statement as if the references to Completion Statements were references to the Tax Adjustment Statement and the references to Independent Expert were references to the Tax Expert (unless the Seller and the Buyer agree in writing that an Independent Expert should be appointed, in which case the references to Independent Expert should be to that Independent Expert).

 

10.6Payment of Final Adjustment Amount

 

The absolute value of the:

 

(a)Final Adjustment Amount; and

 

(b)Final Adjustment Interest Amount,

 

must be paid:

 

(c)if the Final Adjustment Amount is positive, by the Buyer to the Seller; or

 

(d)if the Final Adjustment Amount is negative, by the Seller to the Buyer,

 

within five Business Days after the Completion Statements and the Tax Adjustment Statement become final and binding pursuant to clause 10.4 and clause 10.5.

 

11Warranties and representations

 

11.1Accuracy of Warranties

 

(a)The Seller warrants to the Buyer that each Warranty is true and correct on the date of this document (except where a Warranty is expressed to be given at a particular time, in which case it is given at that time only).

 

(b)The Seller warrants to the Buyer that the Title Warranties, Rollover Shares Warranties and the following Business Warranties are also given as at the time immediately before Completion, Business Warranty 5.2, 7, 8.2, 9.1, 10.1, 11, 12, 14, 15, 17 and 18.

 

11.2Separate Warranties

 

Each Warranty is to be treated as a separate warranty. The interpretation of any statement made may not be restricted by reference to or inference from any other statement.

 

11.3Matters disclosed

 

Each Warranty is to be read down and qualified by any information:

 

(a)provided for in this document or any agreement entered into pursuant to this document;

 

(b)which is otherwise within the actual knowledge of the Buyer, its Related Bodies Corporate or Representatives of the Buyer or its Related Bodies Corporate (except in relation to any adviser, to the extent that the adviser had a bona fide duty of confidence to a third party in respect of the fact, matter or circumstance and could not disclose the fact, matter or circumstance to the Buyer or any employee of the Buyer) as at the date of this document, or which ought reasonably to have been known by any of them having regard to their knowledge of the copper, silver and gold industries generally;

 

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(c)fairly disclosed in writing to the Buyer by the Seller;

 

(d)that would have been disclosed to the Buyer had the Buyer conducted searches prior to the Cut Off Time of records open to public inspection maintained by:

 

(i)ASIC,

 

(ii)the Fair Work Commission;

 

(iii)IP Australia;

 

(iv)the PPSR;

 

(v)the Australian Government Department of Agriculture, Water and the Environment;

 

(vi)the Australian Government Department of Industry, Science, Energy and Resources;

 

(vii)the High Court, the Federal Court, the New South Wales Supreme Court and the New South Wales Land and Environment Court,

 

(viii)New South Wales Department of Industry – Resources and Energy Division;

 

(ix)New South Wales Department of Planning, Industry and Environment;

 

(x)New South Wales Environment Protection Authority;

 

(xi)New South Wales Land Registry Services, New South Wales Department of Primary Industries – Water;

 

(xii)the relevant local governments via applications for planning certificates identifying matters relating to land under sections 149(2) and (5) of the Environmental Planning and Assessment Act 1979 (NSW) and any other relevant Government Agency or utilities;

 

(xiii)Commonwealth Department of the Environment;

 

(xiv)National Native Title Tribunal; and

 

(xv)Office of the Registrar of the Aboriginal Land Rights Act 1983 (NSW);

 

(e)fairly disclosed in, or is otherwise reasonably identifiable or determinable from, the Disclosure Material; and

 

(f)all other written information and data provided or communicated to the Buyer, its Related Bodies Corporate or any of their Representatives by the Seller or their Representatives on or before the date of this document in connection with the Transaction, including all written information and data provided or communicated as part of or during:

 

(i)management presentations conducted by employees or Representatives of the Seller (to the extent identified in any written summary of those management presentations prepared by the Representatives of the Seller);

 

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(ii)visits by the Buyer to the sites, including the Mine, at which the Company conducts the Business (to the extent identified in any written summary of those site visits prepared by the Representatives of the Seller and provided to the Buyer or its Representatives); and

 

(iii)any formal information request process conducted by or on behalf of the Seller in conjunction with the review by the Buyer of the Disclosure Material,

 

which is or may be inconsistent with that Warranty and, to the extent that any Warranty is incorrect or misleading having regard to any such information, that Warranty is deemed not to have been given. No amount will be recoverable by the Buyer in respect of any breach of Warranty to the extent that the breach arises by reason of or in relation to any such information.

 

In this clause 11.3, ‘otherwise reasonably identifiable or determinable’ in relation to a fact, matter or circumstance or Liability means reasonably likely to result in a prudent prospective Buyer for value of the business of the type conducted by the Company, that has performed a thorough examination of the Disclosure Material by or through its Representatives and other suitably qualified legal, accounting, financial and other professional advisers and consultants, including industry consultants, acting competently, professionally and collaboratively, becoming aware of, or being put on notice of, the relevant fact, matter, circumstance or Liability.

 

11.4Buyer acknowledgements

 

The Buyer acknowledges and agrees that, notwithstanding any other provision of this document:

 

(a)in relation to Forward Looking Information:

 

(i)the Seller Group is under no obligation to provide Forward-Looking Information but may do so for illustrative purposes or to assist the Buyer in forming its own views;

 

(ii)there are uncertainties inherent in Forward-Looking Information given that different opinions may be held in respect of Forward-Looking Information;

 

(iii)the Buyer takes full responsibility for making its own independent evaluation of the adequacy and accuracy of Forward-Looking Information provided to it and the Buyer warrants and represents that it is capable of so doing; and

 

(iv)the Seller Group gives no warranty or representation, express or implied, in relation to Forward-Looking Information and is not liable under any Claim arising out of or relating to any Forward-Looking Information;

 

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(b)the Seller Group gives no warranty or representation, express or implied, in relation to:

 

(i)any economic, fiscal or other similar interpretations or evaluations by the Seller or any person acting on behalf of or associated with the Seller or any other person;

 

(ii)the principles to be applied by Government Agencies with respect to the regulation of the mining industry or any part of it and, in particular, matters affecting production, revenue, labour costs, prices and changes and service levels; and

 

(iii)the regulation of the mining industry (including any act or omission by any Government Agency) and other industries (and the relationship of such other industry regulation to the regulation of the mining industry);

 

(c)it has received and understood the contents of the Disclosure Materials;

 

(d)it has had the opportunity to conduct due diligence and has satisfied itself in relation to matters arising from the Due Diligence;

 

(e)irrespective of whether or not the Due Diligence was as full or exhaustive as the Buyer would have wished, it has nevertheless independently and without the benefit of any inducement, representations or warranty (other than the Warranties) from the Seller Group, its officers, employees, advisors or agents, decided to enter into, and agreed to the terms under, this document;

 

(f)the disclosures regarding the Company and the Business including, the information, forecasts and statements of intent contained in material provided to the Buyer and made in management presentations are accepted by the Buyer and that neither the Seller Group nor any of its agents, directors, officers, employees or advisers has made or makes any representation or warranty as to the accuracy or completeness of those disclosures or that information;

 

(g)other than for fraud, neither the Seller Group nor any of its agents, directors, officers or employees:

 

(i)accepts any duty of care in relation to the Buyer in respect of any disclosure or the provision of any information referred to in clause 11.4(f); or

 

(ii)is to be liable to the Buyer or its Related Bodies Corporate if, for whatever reason, any such information is or becomes inaccurate, incomplete or misleading in any particular way; and

 

(h)subject to any law to the contrary and except as expressly provided in the Warranties, all terms, conditions, representations, warranties and statements, whether express, implied, written, oral, collateral, statutory or otherwise, are excluded, and, other than for fraud, the Seller (on behalf of itself and the Seller Group) disclaims all Liability in relation to them, to the maximum extent permitted by law.

 

11.5Release

 

To the maximum extent permitted by law, other than for fraud, the Buyer releases each Indemnified Person from, and agrees not to make, and waives any right it might have to make, any Claim against any Indemnified Person in relation to anything referred to in clause 11.4.

 

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11.6No knowledge of Warranty breach

 

(a)The Buyer represents and warrants that, on the basis of the Due Diligence and other information of which it is aware as at the date of this document, it does not have knowledge or belief of any matter which is, or would with the passage of time be reasonably likely to become, a breach of any Warranty other than any potential breaches of a Warranty disclosed in the Disclosure Material.

 

(b)The Seller acknowledges that the representation and warranty given by the Buyer in clause 11.6(a) does not give the Seller a cause of action against the Buyer and may only be raised by the Seller as a defence to any Claim by the Buyer.

 

11.7Personal Liability

 

The Buyer acknowledges and agrees that, other than for fraud:

 

(a)no natural person will bear any Liability to the Buyer or its Related Bodies Corporate under or in connection with this document or the Transaction;

 

(b)no existing or former Representative of the Seller or its Related Bodies Corporate, acting in that capacity in relation to the Transaction, will bear any Liability to the Buyer or its Related Bodies Corporate in respect of any act, matter, or thing which occurred before, on or after Completion;

 

(c)neither it nor any of its Related Bodies Corporate may commence any proceeding or make any claim or allegation in connection with the Business or the Transaction against the persons referred to in clauses 11.7(a) and 11.7(b); and

 

(d)the persons referred to in clauses 11.7(a) and 11.7(b) are entitled to the benefit of this clause 11.7 and the Seller holds such benefit on trust for those persons and the Seller is entitled to enforce this clause 11.7 on behalf of those persons.

 

12Limitations of Liability

 

12.1Notice of Claims

 

If the Buyer becomes aware of any matter or circumstance that may give rise to a Claim under or in connection with this document:

 

(a)the Buyer must promptly and without delay give notice of the Claim to the Seller; and

 

(b)the notice must contain full details of:

 

(i)the facts, matters or circumstances that may give rise to the Claim;

 

(ii)if it is alleged that the facts, matters or circumstances referred to in paragraph (i) constitute a breach of this document, the basis for that allegation; and

 

(iii)an estimate of the amount of the Loss, if any, arising out of or resulting from the Claim or the facts, matters or circumstances that may give rise to the Claim.

 

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12.2Third Party Claims

 

If the matter or circumstance that may give rise to a Claim against the Seller under or in connection with this document, is a result of or in connection with a Claim (including a potential Claim) by or liability to a third party (Third Party Claim) (which, for the avoidance of doubt, includes a Tax Assessment) then:

 

(a)the Buyer must promptly and without delay give notice of the Third Party Claim to the Seller;

 

(b)the notice must contain full details of:

 

(i)the facts, matters or circumstances that may give rise to the Third Party Claim;

 

(ii)if it is alleged that the facts, matters or circumstances referred to in sub-clause (i) constitute a breach of this document, the basis for that allegation; and

 

(iii)an estimate of the amount of the Loss, if any, arising out of or resulting from the Third Party Claim or the facts, matters or circumstances that may give rise to the Third Party Claim;

 

(c)at the expense and direction of the Seller, the Buyer must:

 

(i)take such action (including legal proceedings or making claims under any insurance policies) as the Seller may reasonably require to avoid, dispute, resist, defend, appeal, compromise or mitigate the Third Party Claim; and

 

(ii)offer the Seller the option to assume defence of the Third Party Claim for and on behalf and in the name of the Company at any time; and

 

(d)the Buyer must not settle, make any admission of liability or compromise any Third Party Claim, or any matter which gives or may give rise to a Third Party Claim, without the prior consent of the Seller, such consent may be withheld or delayed by the Seller (at their absolute discretion), and must at all times act reasonably and in good faith, having regard to the likelihood of success and not take or persist in any course that might reasonably be regarded as harmful to the goodwill, reputations, affairs or operation of any Seller Group Member.

 

12.3Seller to defend Claim

 

If the Seller exercises the option in clause 12.2(c)(ii), then:

 

(a)the Buyer agrees to co-operate with the Seller and do all things reasonably requested by the Seller in respect of the Third Party Claim to enable the Seller to assume defence of the Third Party Claim on behalf of and in the name of the Company;

 

(b)the Seller agrees, at its own expense, to defend the Third Party Claim;

 

(c)the Seller may settle or compromise the Third Party Claim with the consent of the Buyer, such consent not to be unreasonably withheld; and

 

(d)the Seller agrees to consult with the Buyer in relation to the conduct of the Third Party Claim and not take or persist in any course that might reasonably be regarded as harmful to the goodwill or reputation of the Buyer or the Company.

 

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12.4Seller not liable

 

The Seller is not liable to the Buyer (or any person deriving title from the Buyer) for any Claim under or in connection with this document or the Transaction:

 

(a)if the Buyer fails to comply strictly with clause 12.1 or clause 12.2 as the case may be;

 

(b)if the Buyer has ceased after Completion to own or Control the Company;

 

(c)if the Claim is as a result of or in consequence of any voluntary act, omission, transaction or arrangement of or on behalf of any Buyer Group Member or Company after Completion;

 

(d)if the Claim is in relation to any liability which is contingent, prospective, not ascertained or ascertainable, unless and until such liability becomes an actual liability and is due and payable;

 

(e)the Claim related to an amount on account of legal costs which were not reasonably incurred by the Buyer;

 

(f)arising out of or in connection with Forward Looking Information;

 

(g)to the extent the Claim arises or is increased as a result of an increase in the rates, method of calculation or scope of Tax after the date of this document;

 

(h)to the extent the Claim could only have been avoided by a member of the Seller Group breaching its obligations at law or under this document or an agreement entered into pursuant to this document;

 

(i)to the extent the Claim arises or is increased as a result of any change in Accounting Standards (or the adoption of a different accounting group policy or position than was previously adopted by the Company prior to Completion) after the date of this document;

 

(j)if the Claim arises or is increased as a result of action taken or not taken by the Seller after consultation with and the prior approval of the Buyer;

 

(k)to the extent an allowance, note, reserve, accrual or provision has been made for any fact, matter or circumstance giving rise to a Claim in the Last Accounts;

 

(l)to the extent an allowance, reserve, accrual or provision has been made for any fact, matter or circumstance giving rise to a Claim in the Completion Net Debt Statement and/or Completion Working Capital Statement;

 

(m)if the Buyer was aware on or before the date of this document of any fact, matter or circumstance, which gives rise to or forms the basis of the Claim; or

 

(n)if the Claim arises from, or to the extent the Claim is increased as a result of or in consequence of, as applicable:

 

(i)any change to, or the announcement, introduction or enactment of, any legislation, regulation, order or rule; or

 

(ii)any change in the interpretation of any legislation, regulation, order or rule by any Government Agency or judicial body, or of any practice or policy of any Government Agency or judicial body, as the case may be,

 

after the date of this document (including where such change takes effect retrospectively).

 

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12.5Other limitations

 

In addition to the exclusions in clause 12.4, the Seller is not liable to the Buyer (or any person deriving title from the Buyer) for any Tax Claim to the extent that the Tax Claim arises from, or is increased as a result of or in consequence of, as applicable:

 

(a)the failure by the Company or a Buyer Group Member after Completion, in a timely manner, to:

 

(i)lodge any return, notice, objection or other document;

 

(ii)claim all or any portion of any allowance, deduction, credit, rebate or refund;

 

(iii)disclose or correctly describe in any return, notice, objection or other document any fact, matter or thing;

 

(iv)make any rollover or other election, claim or application to any Government Agency; or

 

(v)take any other action which the Company or a Buyer Group Member is required or permitted to take under this document or any Tax Law;

 

(b)any Tax that has been paid or discharged;

 

(c)an act, omission or occurrence occurring (including any income recognised) on or after the Effective Time or any Tax that relates to any Tax Period (or part thereof) after the Effective Time (for clarity, Tax can relate to a Tax Period in circumstances where the Tax is not assessed by reference to a period (e.g. Duty));

 

(d)the failure by the Buyer to supply to the Seller, on a timely basis, information which is reasonably requested by the Seller in relation to the particular Claim;

 

(e)the Buyer, a Buyer Group Member or any Related Body Corporate of the Buyer taking a position in relation to the application of a Tax Law that is inconsistent with the position adopted before Completion (including any position adopted in relation to the calculation of any reserve or provision relating to Tax in the Last Accounts) unless that position is required under a Tax Law;

 

(f)a matter that is timing in nature, to the extent that a benefit (including the non-inclusion of an amount in assessable income) is actually received by the Company or a Buyer Group Member in a different period;

 

(g)the Company joining a new group for Tax purposes on or after Completion; or

 

(h)a failure by the Company or a Buyer Group Member to:

 

(i)recover GST from the recipient of a supply after Completion; or

 

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(ii)claim an input tax credit that is available after Completion to be claimed by the Company or a Buyer Group Member.

 

The Buyer must notify the Seller of any change described in clause 12.5(e) describing the circumstances of the inconsistent position at least 15 Business Days before the relevant Buyer Group Member adopts it.

 

12.6Recovery

 

Where a Buyer Group Member or the Company is or may be entitled to recover from some other person any sum in respect of any matter or event which could give rise to a Claim, the Buyer will:

 

(a)use its reasonable endeavours to recover (or procure the Company or Buyer Group Member recovers) that sum before making the Claim;

 

(b)keep the Seller at all times fully and promptly informed of the conduct of such recovery; and

 

(c)reduce the amount of the Claim by the amount of the recovered sum.

 

If the recovery is delayed until after the Claim has been paid by the Seller to the Buyer, clause 12.13 will apply.

 

12.7Adjustment to Purchase Price

 

Excluding payments made as part of Completion:

 

(a)if payment is made by the Seller to the Buyer under this document, the payment is to be treated as a reduction in the purchase price; and

 

(b)if payment is made by the Buyer to the Seller under this document, the payment is to be treated as an increase in the purchase price.

 

12.8Time limit on Claim

 

The Buyer may not make any Claim under this document or otherwise relating to or in connection with the matters dealt with in this document (including for breach of a Warranty or under the Tax Indemnity) unless full details of the Claim have been notified to the Seller in accordance with clause 12.1 or clause 12.2 within:

 

(a)for Tax Claims – 5 years after Completion; and

 

(b)for all other Claims – 18 months after Completion.

 

A Claim will not be enforceable against the Seller and is to be taken for all purposes to have been withdrawn unless any legal proceedings in connection with the Claim are commenced within 6 months after written notice of the Claim is served on the Seller in accordance with clause 12.1 or clause 12.2.

 

12.9Minimum amount of Claim

 

The Buyer may not make any Claim under this document or otherwise relating to or in connection with the matters dealt with in this document (including for breach of a Warranty):

 

(a)if the amount of the Claim is less than $10,000,000; and

 

(b)unless and until the aggregate amount of all Claims properly made under this document exceeds $25,000,000.

 

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12.10Maximum Liability

 

(a)Subject to clause 12.10(b), the Seller’s total liability for loss or damage of any kind not excluded by clause 12.11 however caused, in contract, tort, (including negligence), under any statute or otherwise under or in connection with this document or its subject matter is limited in respect of:

 

(i)a Title Warranty Claim – 100% of the Purchase Price; and

 

(ii)any and all other Claims in aggregate (except for those specified in clause 12.10(a)(i)) made under or in connection with this document – 20% of the Purchase Price.

 

(b)The maximum aggregate liability of the Seller for loss or damage of any kind in respect of any and all Claims under or connection with this document, whenever made, is limited to 100% of the Purchase Price.

 

12.11Exclusion of consequential liability

 

Notwithstanding any other provisions of this document, the Seller excludes all liability for any economic loss, indirect and consequential loss or damage which includes any:

 

(a)loss of income, profits or business;

 

(b)any failure to achieve any anticipated savings;

 

(c)damage to goodwill or reputation;

 

(d)loss of opportunity; and

 

(e)punitive or exemplary damages that may otherwise be awarded against it,

 

whether arising in contract, tort (including negligence), under any statute or otherwise arising under or in connection with this document or its subject matter.

 

12.12Insured Claim or loss

 

(a)The Seller will not be liable for any Claim under or in connection with this document, unless the Buyer has first caused the Company to make a Claim under any insurance policy held by that Company which may cover that Claim and that Claim has been denied in whole or in part by the relevant insurer. If the Buyer has still incurred some damage or Loss, that remaining amount will be the amount of the Buyer’s Loss for the purposes of this document.

 

(b)On Completion, the Buyer must, or must procure that the Company, takes out insurance policies with reputable insurers:

 

(i)on terms and coverage no less favourable than the Seller Group Insurance Policies which are in existence as at the date of this document; and

 

(ii)which provide coverage for the Company, the Business and the Assets in respect of the period on and from Completion.

 

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12.13Later recoveries

 

If, after the Seller has made a payment to the Buyer pursuant to a Claim under or in connection with this document, the Buyer, the Company or any Buyer Group Member receives a payment or benefit (including any benefit in relation to Tax not otherwise taken into account under clause 12.15) in relation to the fact, matter or circumstance to which the Claim related, then the Buyer must repay to the Seller the amount of the payment or benefit received or, if less, the amount of the payment or benefit which was received by the Company or Buyer Group Member (as the case may be).

 

12.14Obligation to mitigate

 

Nothing in this clause 12 in any way restricts or limits the general obligation at law of the Buyer to mitigate any Loss or damage which it or the Company may incur in consequence of any breach by the Seller of the terms of this document including breach of a Warranty.

 

12.15Tax benefit

 

In calculating the Liability of the Seller for a Claim arising under or in connection with this document, there must be taken into account any benefit accruing to the Company or a Buyer Group Member, including any amount by which any Tax for which the Company or a Buyer Group Member is, or may be liable to be, assessed or accountable is reduced or extinguished in the income year in which the Seller is required to pay any monies in relation to the Claim or any earlier income year (including any amount of any relief, allowance, exemption, exclusion, set off, deduction, loss, rebate, refund, right to repayment or credit granted or available in respect of Tax under any law obtained or obtainable by the Company or a Buyer Group Member), arising directly or indirectly from the matter that gives rise to that Claim.

 

12.16No double recovery

 

The Buyer is not entitled to recover any Liability or obtain payment, reimbursement, restitution, indemnity or damages more than once in respect of any one Liability, shortfall, deficiency or other set of circumstances which gives rise to more than one Claim by the Buyer under or in connection with this document.

 

12.17Statutory actions

 

(a)To the maximum extent permitted by law, the Buyer agrees not to make, and releases any right it may have to make, against the Seller, each Seller Group Member or any of their Representatives, any Claim based on:

 

(i)Part 7.10 (including section 1041H) of the Corporations Act;

 

(ii)Part 2 Division 2 (including section 12DA or 12DB) of the Australian Securities and Investments Commission Act 2001 (Cth);

 

(iii)the Australian Consumer Law (as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or the corresponding provision of any Australian State or Territory legislation); or

 

(iv)a corresponding or similar provision under any Australian State or Territory legislation or any similar provision of any legislation in any relevant jurisdiction or any other applicable laws, (each a “Statutory Claim”), for any act or omission in respect of the Company, the Business or the Assets or for any statement or representation about any of those things which is not expressly contained in this document.

 

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(b)The Buyer indemnifies and agrees to hold harmless each Indemnified Person from and against all Liability arising directly or indirectly from or in connection with a Statutory Claim made against any Seller Group Member by the Buyer under or in connection with this document. The Seller holds the benefit of this clause 12.17 on trust for each other Indemnified Person to the extent that this clause 12.17 applies to those Indemnified Persons, and the Seller is entitled to enforce this clause 12.17 on behalf of those other Indemnified Persons.

 

12.18Remedies for breach of Warranties

 

Notwithstanding any other provision of this document, the Buyer acknowledges and agrees that:

 

(a)the Buyer is the only person entitled to make a Claim for breach of a Warranty; and

 

(b)its sole remedy for breach of a Warranty is damages.

 

12.19Knowledge and belief

 

Where a Warranty is given to the Seller’s awareness, knowledge or belief, including to the best of its knowledge, awareness or belief or so far as the Seller is aware, the Seller will be deemed to know or be aware of a particular fact, matter or circumstance only if one or more of:

 

(a)

[***];

 

(b)

[***];

 

(c)[***]; and

 

(d)[***],

 

is actually aware of that fact, matter or circumstance as at the date of this document or ought to have been aware as at the date of this document after having made reasonable enquiries of their direct reports. No other knowledge will be imputed to the Seller. The Buyer acknowledges and agrees that each individual referred to in this clause 12.19 is not in any way personally responsible for the accuracy of the Warranties and will not be personally liable for any Claim.

 

12.20Insurance

 

The Seller will not be liable for any Claim under or in connection with this document if and to the extent that the Loss in respect of which the Claim is made: (i) is covered by a policy of insurance, or (ii) would have been covered if the policies of insurance for the benefit of the Company in force as at Completion had been maintained after Completion on no less favourable terms.

 

12.21Independent limitations

 

Each qualification and limitation in this clause 12 is to be construed independently of the others and is not limited by any other qualification or limitation.

 

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13Taxation

 

13.1Tax Indemnity

 

(a)Subject to Completion occurring, the Seller agrees that, if at any time the Company receives or suffers a Tax Assessment, then the Seller must pay the Buyer, an amount equal to the Tax Assessment Amount for that Tax Assessment, except to the extent that the Seller’s liability is limited or qualified under this document.

 

(b)No Claim may be made in respect of Tax other than a Tax Claim.

 

13.2Payment

 

No amount is payable under clause 13.1 or in relation to a breach of a Tax Warranty to the Buyer until the later of:

 

(a)5 Business Days before the latest date on which the Tax Assessment Amount may lawfully be made without incurring any penalty or additional tax for late payment;

 

(b)10 Business Days after receiving notice of the relevant Tax Claim under clause 12.1;

 

(c)if a Government Agency has agreed to defer recovery of some or all of the Tax Assessment Amount, 5 Business Days before the last date (taking into account any extensions) on which the Government Agency may commence recovery of that Tax Assessment Amount; and

 

(d)if bona fide discussions are being conducted with a Government Agency in relation to deferring the recovery of some or all of any Tax, 5 Business Days following the date on which the Government Agency confirms in writing that it will not defer the recovery of that Tax.

 

13.3Refund

 

If:

 

(a)following payment by the Seller of an amount in connection with a Tax Claim, an amount of Tax which is referable to the Tax Claim is refunded either in cash or by credit to a Buyer Group Member or the Company (including any amount or credit received following a successful objection or appeal); or

 

(b)a Buyer Group Member or the Company receives (whether in cash or by way of credit or offset against an amount owed to a Government Agency) or would be entitled to receive a refund of all or part of an amount of Tax that was paid by the Company or the Seller, or a payment in relation to Tax in respect of a period prior to the Effective Time,

 

then the Buyer must immediately pay:

 

(c)in the case of clause 13.3(a), notify the Seller (in writing) of the amount of the refund and pay an amount to the Seller, equal to the lesser of the refund and the amount of the payment made by the Seller with respect to the particular Tax Claim; and/or

 

(d)in the case of clause 13.3(b), notify the Seller (in writing) of the amount of the refund or payment and pay an amount to the Seller equal to the refund.

 

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For the purposes of clause 13.3(b), in determining whether a Buyer Group Member or the Company receives or would be entitled to receive a refund of an amount of Tax, treat the Tax Period in which the Effective Time occurs (“Straddle Tax Period”) as two distinct Tax Periods with the first commencing at the beginning of the Straddle Tax Period and ending on the Effective Time and the second commencing immediately after the Effective Time and ending at the end of the Straddle Tax Period.

 

13.4Gross up

 

(a)If a party (the “payor”) is liable to pay an amount to another party (the “recipient”) under a Claim, and as a consequence of the payment, an amount of assessable income arises for the recipient under a Tax Law then the payment must be grossed up by such an amount as is necessary to ensure that the net amount retained by the recipient after any such payment of Tax equals the amount the recipient would have retained had the Tax not been payable.

 

(b)For the purposes of this clause 13.4 an amount of assessable income will be taken to arise for the recipient to the extent that an amount of assessable income arises for a member of a Consolidated Group of which the recipient is a member.

 

13.5Pre-Effective Time Tax matters

 

(a)Except in relation to the preparation and lodgement of a Pre-Effective Time Tax Return or a Straddle Return (to which clause 14.1 or clause 14.2 applies), the parties agree that without limiting the Seller’s rights or Buyer’s obligations under this document, the Buyer must keep the Seller informed of any disclosures made to any Government Agency which relate to any event, act, matter or transaction or amount derived (or deemed to be derived) by the Company or expenditure incurred by the Company before, on, or as a result of, the Effective Time (Pre-Effective Time Tax Event).

 

(b)The Buyer agrees that it will (and will procure that, from Completion, the Company will):

 

(i)not disclose any information to a Government Agency to the extent to which it relates to a Pre-Effective Time Tax Event without the prior written consent of the Seller (not to be unreasonably withheld), except as required by law (in which case notice must be provided to Seller at least 10 Business Days prior to such disclosure, unless such notice is prohibited by law or it is impossible to provide notice at least 10 Business Days prior to such disclosure, in which case the Seller will give notice as soon as possible);

 

(ii)not file, or cause to be filed, any amended Tax Return or seek any advice from a Government Agency (including seeking a ruling) for the Company which relates to a Tax Period (or part thereof) ending on or before the Effective Time without the prior written consent of the Seller;

 

(iii)promptly provide the Seller with copies of any correspondence with, or material provided to or by, a Government Agency and keep the Seller informed of any communications with any Government Agency in relation to any Pre-Effective Time Tax Event. In the case of correspondence or material provided to a Government Agency, such copies must be provided at least 10 Business Days prior to the provision of the correspondence or material to the Government Agency; and

 

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(iv)in the event that a Government Agency commences an audit or investigation of the Company which relates (whether in whole or in part) to a Tax Period which commenced before the Effective Time:

 

(A)the Buyer must allow the Seller, at its own expense, to participate in any dealings with the Government Agency with respect to the audit or investigation; and

 

(B)the Buyer must not enter into any settlement with respect to the audit or investigation without the Seller’s written consent.

 

If, as a result of an audit or investigation to which this clause 13.5(b)(iv) applies, the Buyer notifies the Seller of a Claim in accordance with clause 12.1 or clause 12.2, clause 12.3 will thereafter apply with respect to the conduct of the audit or investigation and not clause 13.5(b).

 

14Tax returns

 

14.1Tax Returns before Effective Time

 

The Seller must prepare and the Buyer must lodge all Tax Returns for the Company for any Tax Period that ends on or before the Effective Time and which have not been lodged before the Effective Time (Pre-Effective Time Return). For the avoidance of doubt this clause 14.1 does not apply to the consolidated income Tax Return of the Seller Consolidated Group.

 

14.2Tax Returns after Effective Time

 

The Buyer must prepare and lodge all Tax Returns for the Company for any:

 

(a)Tax Period commencing before the Effective Time but ending after the Effective Time (Straddle Return); or

 

(b)Tax Period commencing on or after the Effective Time.

 

14.3Copy of Straddle Return

 

The Buyer must provide a copy of any Straddle Return to the Seller together with any work papers relating to the Straddle Return no less than 20 Business Days (or 10 Business Days if it is a GST return) prior to its due date for lodgement with a Government Agency.

 

14.4Review of Straddle Return

 

The Seller will have a period of 15 Business Days (or a period of 7 Business Days if a GST return) from receipt of a Straddle Return (Tax Return Review Period) in which to review the Straddle Return and provide the Buyer with any comments that relate to the period before the Effective Time. If the Seller does not provide comments to the Buyer within the relevant Tax Return Review Period, the Seller is deemed to agree with the manner in which the Straddle Return has been prepared.

 

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14.5Incorporation of comments into Straddle Returns

 

(a)The Buyer must give the Seller notice in writing within 3 Business Days of receiving the Seller’s comments advising whether all of the Seller’s comments have been incorporated into the Straddle Return and to the extent that the Seller's comments have not been incorporated into the Straddle Return, detailed reasons why those comments were not incorporated (Confirmation Notice).

 

(b)If the Buyer does not incorporate all of the Seller’s comments, the Seller may provide the Buyer with a notice of dispute within 3 Business Days of receipt of the Confirmation Notice (Tax Dispute Notice).

 

(c)If the Seller does not provide a Tax Dispute Notice in relation to a Straddle Return in accordance with clause 14.5(b), the Seller is deemed to have agreed to the content of the Straddle Return.

 

(d)If the Seller provides a Tax Dispute Notice in accordance with clause 14.5(b), the parties agree to work together to resolve the dispute (Tax Return Dispute) as soon as reasonably possible. If the dispute remains unresolved 3 Business Days following receipt of the Tax Dispute Notice, the parties agree to refer the dispute to a Tax Expert in accordance with clause 14.8.

 

(e)The Buyer must, subject to clause 14.5(f), amend any Straddle Return which is the subject of a Tax Dispute Notice in accordance with the Tax Expert’s decision prior to lodgement.

 

(f)If a Straddle Return is due for lodgement before the process in this clause 14.5 completed, the Buyer must, to the extent it will not be a breach of applicable law, delay lodgement of the Straddle Return until such time that the Tax Expert has made a decision, unless otherwise agreed with the Seller.

 

14.6Access and assistance

 

The parties agree to provide each other with all reasonable assistance and access to records and documents (including all electronic records and documents) required to comply with this clause 14. The parties must also provide reasonable access to any Representative or other person who has information relating to the Company which is necessary to comply with this clause.

 

For the avoidance of doubt, nothing in this clause 14.6 requires the Seller to provide access to or copies of any Tax Returns, work papers or other documentation of the Seller Consolidated Group.

 

14.7Costs

 

Each party must pay its own costs in connection with this clause 14.

 

14.8Tax Expert

 

(a)The Seller and the Buyer may make submissions to the Tax Expert in relation to the Tax Return Dispute.

 

(b)The Tax Expert is appointed as an expert and not an arbitrator and will determine the procedures for settling the Tax Return Dispute.

 

(c)The Tax Expert must provide written notice of its decision on the Tax Return Dispute to the Seller and the Buyer and the decision of the Tax Expert is conclusive and binding on the parties in the absence of manifest error.

 

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(d)The Seller will pay one half of the Tax Expert’s costs and expenses in relation to the Tax Return Dispute and the Buyer will pay one half of the Tax Expert’s costs and expenses in relation to the Tax Return Dispute.

 

15Buyer and Buyer Guarantor warranties

 

15.1Buyer and Buyer Guarantor warranties

 

Each of the Buyer and Buyer Guarantor warrants and represents to the Seller that each of the following statements is correct, and not misleading in any material respect, on the date of this document (unless otherwise stated) and will be correct and not misleading as at Completion as if made on and as at each of those dates:

 

(a)it has been incorporated or formed in accordance with the laws of its place of incorporation or formation, is validly existing under those laws and has power and authority to own its assets and carry on its business as its business is now being conducted;

 

(b)it has the power to enter into and, subject to clause 2.1, perform this document and, subject to clause 2.1, has obtained all necessary consents and authorisations to enable it to do so;

 

(c)the entry into and performance of this document by it does not constitute a breach of any obligation (including any statutory, contractual or fiduciary obligation), or default under any agreement or undertaking by which it is bound;

 

(d)this document constitutes valid and binding obligations upon it enforceable in accordance with its terms by appropriate legal remedy;

 

(e)this document and Completion do not conflict with or result in a breach of or default under any applicable law, any provision of its constitution or any material term or provision of its constitution or any material term or provision of any agreement or deed or writ, order or injunction, judgment, law, rule or regulation to which it is party or is subject or by which it is bound;

 

(f)it is not Insolvent;

 

(g)the Buyer is a wholly-owned subsidiary of the Buyer Guarantor;

 

(h)on issue, the Rollover Shares issued to the Seller will be:

 

(i)validly issued, fully paid and non-assessable; and

 

(ii)free from all Encumbrances except for any such Encumbrances under the constitution of Buyer Guarantor;

 

(i)all of the Rollover Shares issued to the Seller will be issued at the Rollover Share Issue Price;

 

(j)all holders of Buyer Guarantor Class B Shares have irrevocably waived any anti-dilution adjustment as to the ratio by which Buyer Guarantor Class B Shares convert into Buyer Guarantor Class A Shares or any other measure with an anti-dilutive effect, in any case, that results from or is related to the Business Combination, including, but not limited to those anti-dilution protections in Article 17 of the Memorandum and Articles of Association;

 

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(k)the Buyer Guarantor has dealt with the Sellers on an arm’s length basis with respect to the acquisition of the Shares;

 

(l)the Buyer Guarantor is the ultimate holding company (as defined in the Tax Act) of a wholly-owned group (as defined in the Tax Act) that includes the Buyer as a member;

 

(m)it has not, and will not, make a choice to deny rollover relief for the Seller and nothing has happened which would deny rollover relief under section 124-780(3)(f) of the Tax Act;

 

(n)the Buyer has sufficient financial and technical resources to enable it to procure compliance by the Company, post-Completion, with the conditions of all Mining Tenements;

 

(o)it has not caused the Seller to incur any Liability by virtue of section 16C of the Privacy Act 1988 (Cth);

 

(p)the board of directors of Buyer Guarantor has: (i) determined that the fair market value of the Company is equal to at least 80% of the amount held in the Trust Account (less any deferred underwriting commissions and taxes payable on interest earned) as of the date hereof; (ii) approved the transactions contemplated by this document as a Business Combination; (iii) determined that this document is in the best interests of Buyer Guarantor and the shareholders of Buyer Guarantor, and declared it advisable, to enter into this document and each of the Transactions, (iv) approved this document and the Transactions, in each case, on the terms and subject to the conditions of this document, and (v) adopted a resolution recommending that this document be adopted by the shareholders of Buyer Guarantor (the “Buyer Guarantor Board Recommendation”);

 

(q)as of the date hereof, there is at least $250,000,000 invested in a trust account (the “Trust Account”), maintained by Continental Stock Transfer & Trust Company, a New York corporation, acting as trustee (the “Trustee”), pursuant to the Investment Management Trust Agreement, dated July 28, 2021, by and between Buyer Guarantor and the Trustee (the “Trust Agreement”);

 

(r)as of the date hereof, there are no claims or proceedings pending with respect to the Trust Account and since July 29, 2021, Buyer Guarantor has not released any money from the Trust Account (other than interest income earned on the principal held in the Trust Account as permitted by the Trust Agreement);

 

(s)as of the date hereof, following the Completion, no shareholder of Buyer Guarantor shall be entitled to receive any amount from the Trust Account except to the extent such shareholder shall have elected to tender its Buyer Guarantor Class A Shares for redemption pursuant to the Buyer Guarantor Shareholder Redemption.

 

(t)the Trust Agreement is in full force and effect and is a legal, valid and binding obligation of Buyer Guarantor and the Trustee, enforceable in accordance with its terms;

 

(u)there are no side letters and there are no contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would entitle any Person (other than shareholders of Buyer Guarantor who shall have elected to redeem their Buyer Guarantor Class A Shares pursuant to the Buyer Guarantor Shareholder Redemption or the underwriters of Buyer Guarantor’s initial public offering in respect of their Deferred Discount (as defined in the Trust Agreement)) to any portion of the proceeds in the Trust Account;

 

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(v)the share capital of Buyer Guarantor consists of 221,000,000, including (i) 200,000,000 Buyer Guarantor Class A Shares, (ii) 20,000,000 Buyer Guarantor Class B ordinary shares with a par value of US$0.0001 each (Buyer Guarantor Class B Shares) and (iii) 1,000,000 preference shares, with a par value of US$0.0001 each (Buyer Guarantor Preference Shares), of which (A) 26,514,780 Buyer Guarantor Class A Shares are issued and outstanding as of the date of this document, (B) 6,628,695 Buyer Guarantor Class B Shares are issued and outstanding as of the date of this document and (C) no Buyer Guarantor Preference Shares are issued and outstanding as of the date of this document. Buyer Guarantor has issued 14,373,564 Buyer Guarantor Warrants that entitle the holders to purchase Buyer Guarantor Class A Shares at an exercise price of $11.50 per share on the terms and conditions set forth in the applicable warrant agreement. All of the issued and outstanding Buyer Guarantor Ordinary Shares and Buyer Guarantor Warrants (i) have been duly authorized and validly issued and are fully paid and non-assessable, (ii) were issued in compliance in all material respects with applicable law, and (iii) were not issued in breach or violation of any pre-emptive rights or contract;

 

(w)except for this document and the transactions contemplated hereby (including the financing arrangements for the transactions contemplated in this agreement) and the Buyer Guarantor Warrants, as of the date hereof, there are (i) no subscriptions, calls, options, warrants, rights or other securities convertible into or exchangeable or exercisable for Buyer Guarantor Ordinary Shares or the equity interests of Buyer Guarantor, or any other contracts to which Buyer Guarantor is a party or by which Buyer Guarantor is bound obligating Buyer Guarantor to issue or sell any shares of capital stock of, other equity interests in or debt securities of, Buyer Guarantor, and (ii) no equity equivalents, stock appreciation rights, phantom stock ownership interests or other compensatory or incentive equity rights in Buyer Guarantor;

 

(x)there are no outstanding bonds, debentures, notes or other indebtedness of Buyer Guarantor having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which Buyer Guarantor’s shareholders may vote;

 

(y)the Rollover Shares, when issued in accordance with this document, will be duly authorized and validly issued, and will be fully paid and non-assessable and free of pre-emptive rights, subscription rights or any similar right under any provision of Law, Buyer Guarantor’s organizational documents or any contract to which Buyer Guarantor is a party or by which Buyer Guarantor is bound; and

 

(z)the issued and outstanding units of Buyer Guarantor, each such unit comprised of one Buyer Guarantor Class A Share and one-third of one Buyer Guarantor Warrant, are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “MTAL-U”. The issued and outstanding Buyer Guarantor Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “MTAL”. The issued and outstanding Buyer Guarantor Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “MTAL-WS”. There is no action pending or, to the knowledge of Buyer Guarantor, threatened against Buyer Guarantor by the SEC with respect to any intention by such entity to deregister the Buyer Guarantor Class A Shares or Buyer Guarantor Warrants. None of Buyer Guarantor or its Affiliates has taken any action in an attempt to terminate the registration of the Buyer Guarantor Class A Shares or Buyer Guarantor Warrants under the Exchange Act except as contemplated by this document;

 

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(aa)on Completion, all Buyer Guarantor Class B Shares will convert to Buyer Guarantor Class A Shares on a one-for-one basis without any anti-dilution adjustment; and

 

(bb)the Proxy Statement (and any amendment or supplement thereto) shall comply in all material respects with the applicable requirements of the Exchange Act and the Securities Act of 1933 (the “Securities Act”). On the date the Proxy Statement is first mailed to the Buyer Guarantor shareholders, and at the time of the Extraordinary General Meeting, none of the information relating to Buyer Guarantor supplied or to be supplied by Buyer Guarantor or its Related Bodies Corporate, Affiliates or Representatives in the Proxy Statement (together with any amendments or supplements thereto), will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; provided, however, that Buyer Guarantor makes no representations or warranties as to the information contained in or omitted from the Proxy Statement in reliance upon and in conformity with information furnished in writing to Buyer Guarantor by or on behalf of Seller specifically for inclusion in the Proxy Statement.

 

15.2Indemnity

 

The Buyer and the Buyer Guarantor indemnify the Seller against any Loss that the Seller may incur to the extent caused by any breach of the warranties and representations in clause 15.1.

 

16Guarantee and indemnity

 

16.1Consideration

 

The Buyer Guarantor acknowledges that the Seller is acting in reliance on the Buyer Guarantor incurring obligations and giving rights under this Guarantee.

 

16.2Guarantee

 

(a)The Buyer Guarantor unconditionally and irrevocably guarantees to the Seller the Buyer’s compliance with the Buyer’s obligations in connection with this document, including each obligation to pay money.

 

(b)If the Buyer does not comply with those obligations on time and in accordance with this document, then the Buyer Guarantor agrees to comply with those obligations on demand from the Seller. A demand may be made whether or not the Seller has made demand on the Buyer.

 

16.3Indemnity

 

The Buyer Guarantor indemnifies the Seller against any liability or loss arising from, and any Costs it incurs, if:

 

(a)the Buyer does not, or is unable to, comply with an obligation it has (including any obligation to pay money) in connection with this document; or

 

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(b)an obligation the Buyer would otherwise have under this document (including an obligation pay money) is found to be void, voidable or unenforceable; or

 

(c)an obligation the Buyer Guarantor would otherwise have under clause 16.2 is found to be void, voidable or unenforceable; or

 

(d)a representation or warranty by the Buyer in this document is found to have been incorrect or misleading when made or taken to be made.

 

The Buyer Guarantor agrees to pay amounts due under this clause on demand from the Seller.

 

The Seller need not incur expense or make payment before enforcing this right of indemnity.

 

16.4Extent of guarantee and indemnity

 

Each of the Guarantee in clause 16.2 and the indemnity in clause 16.3 is a continuing obligation despite any intervening payment, settlement or other thing and extends to all of the Buyer’s obligations in connection with this document. The Buyer Guarantor waives any right it has of first requiring the Seller to commence proceedings or enforce any other right against the Buyer or any other person before claiming from the Buyer Guarantor under this Guarantee.

 

16.5Obligation to pay interest

 

The Buyer Guarantor agrees to pay interest at the Interest Rate on any amount under this Guarantee which is not paid on the due date for payment and is not otherwise incurring interest.

 

The interest accrues daily from (and including) the due date to (but excluding) the date of actual payment and is calculated on actual days elapsed and a year of 365 days.

 

The Buyer Guarantor agrees to pay interest under this clause on demand from the Seller.

 

16.6Compounding

 

Interest payable under clause 16.5 which is not paid when due for payment may be added to the overdue amount by the Buyer at intervals which the Seller determines from time to time or, if no determination is made, every 30 days. Interest is payable on the increased overdue amount at the Interest Rate and in the manner set out in clause 16.5.

 

16.7Payments

 

(a)The Buyer Guarantor agrees to make payments under this Guarantee:

 

(i)in full without set-off or counterclaim, and without any withholding or deduction in respect of Taxes unless required by law; and

 

(ii)in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.

 

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(b)If the Buyer Guarantor is required to make any withholding, deduction or payment for or on account of Tax or by any Government Agency, the Buyer Guarantor:

 

(i)must pay or procure the payment of the full amount of the withholding or deduction, or make or procure the making of the payment, to the appropriate Government Agency under applicable law; and

 

(ii)at the same time as the relevant deduction, withholding or payment, pay such additional amount to the Seller as is required to ensure the net amount received by the Seller is equal to the full amount which would have been received by the Seller had no such deduction, withholding or payment been required to be made.

 

16.8No merger

 

This Guarantee does not merge with or adversely affect, and is not adversely affected by, any of the following:

 

(a)any other guarantee, indemnity, mortgage, charge or other encumbrance, or other right or remedy to which the Seller is entitled; or

 

(b)a judgment which the Seller obtains against the Buyer Guarantor, the Buyer or any other person in connection with this document.

 

The Seller may still exercise its rights under this Guarantee as well as under the judgment, mortgage, charge or other encumbrance or the right or remedy.

 

16.9Rights of the Seller are protected

 

The rights given to the Seller under this Guarantee, and the Buyer Guarantor’s liabilities under it, are not affected by any act or omission or any other thing which might otherwise affect them under law or otherwise. For example, those rights and liabilities are not affected by:

 

(a)any act or omission:

 

(i)varying or replacing in any way and for any reason any agreement or arrangement under which the obligations guaranteed under clause 16.2 are expressed to be owing;

 

(ii)releasing the Buyer or giving the Buyer a concession (such as more time to pay);

 

(iii)releasing any person who gives a guarantee or indemnity in connection with any of the Buyer’s obligations;

 

(iv)by which the obligations of any person who guarantees any of the Buyer’s obligations (including obligations under this Guarantee) may become unenforceable;

 

(v)by which any person who was intended to guarantee any of the Buyer’s obligations does not do so, or does not do so effectively; or

 

(vi)by which a person who is co-surety or co-indemnifier is discharged under an agreement or by operation of law;

 

(b)a person dealing in any way with this document or this Guarantee;

 

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(c)the death, mental or physical disability, or liquidation, administration or insolvency of any person, including the Buyer Guarantor or the Buyer;

 

(d)changes in the membership, name or business of any person; or

 

(e)acquiescence or delay by the Buyer or any other person.

 

16.10Buyer Guarantor’s rights are suspended

 

As long as any obligation is required, or may be required, to be complied with in connection with this Guarantee, the Buyer Guarantor may not, without the Seller’s consent:

 

(a)reduce its liability under this Guarantee by claiming that it or the Buyer or any other person has a right of set-off or counterclaim against the Seller; or

 

(b)claim, or exercise any right to claim to be entitled (whether by way of subrogation or otherwise) to the benefit of another guarantee, indemnity, mortgage, charge or other encumbrance:

 

(i)in connection with this document or any other amount payable under this Guarantee; or

 

(ii)in favour of a person other than the Seller in connection with any obligations of, or any other amounts payable, by the Buyer to, or for the account of, that other person; or

 

(c)claim an amount from the Buyer, or another guarantor (including a person who has signed this Guarantee as “Buyer Guarantor”), under a right of indemnity or contribution; or

 

(d)claim an amount in the liquidation, administration or insolvency of the Buyer or of another guarantor of any of the Buyer’s obligations (including a person who has signed this Guarantee as “Buyer Guarantor”).

 

If the Seller requests, the Buyer Guarantor agrees to notify any relevant person of the terms of this clause and other parts of this Guarantee that may be relevant. The Buyer Guarantor also authorises the Seller to do so at any time in its discretion and without first asking the Buyer Guarantor to do it. This applies despite anything else in this Guarantee.

 

This clause continues after this Guarantee ends.

 

16.11Reinstatement of rights

 

Under any Insolvency Law, a person may claim that a transaction (including a payment) in connection with this Guarantee or this document is void or voidable. If a claim is made and upheld, conceded or compromised, then:

 

(a)the Seller is immediately entitled as against the Buyer Guarantor to the rights in connection with this Guarantee or this document to which it was entitled immediately before the transaction; and

 

(b)on request from the Seller, the Buyer Guarantor agrees to do anything (including signing any document) to restore to the Seller any mortgage, charge or other encumbrance (including this Guarantee) held by it from the Buyer Guarantor immediately before the transaction.

 

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The Buyer Guarantor’s obligations under this clause are continuing obligations, independent of the Buyer Guarantor’s other obligations under this Guarantee and continue after this Guarantee ends.

 

16.12Costs

 

The Buyer Guarantor agrees to pay or reimburse the Seller on demand for:

 

(a)the Seller’s Costs in making, enforcing and doing anything in connection with this Guarantee including legal Costs in accordance with any written agreement as to legal costs or, if no agreement, on whichever is the higher of a full indemnity basis or solicitor and own client basis; and

 

(b)all duties, fees, Taxes (other than tax on income) and charges which are incurred by a Seller Group Member and are payable in connection with this Guarantee or a payment or receipt or other transaction contemplated by it.

 

17Default

 

17.1Remedies of the Seller

 

(a)If the Buyer does not Complete, other than as a result of a default of the Seller, the Seller may give the Buyer a notice of default requiring the Buyer to Complete (Buyer’s Cure Notice).

 

(b)If the Buyer does not Complete within 5 Business Days after receipt of the Buyer’s Cure Notice, without limiting the remedies available to the Seller at law or in equity, the Seller may sue the Buyer for breach, seek damages for breach of this document and, in addition, do any or all of the following:

 

(i)elect to seek specific performance of this document by the Buyer; or

 

(ii)terminate this document.

 

(c)If this document is terminated by the Seller under this clause 17.1 then clause 2.6 will apply with necessary changes.

 

17.2Remedies of the Buyer

 

(a)If the Seller does not Complete, other than as a result of a default of the Buyer, the Buyer may give the Seller a notice of default requiring the Seller to Complete (Seller’s Cure Notice).

 

(b)If the Seller does not Complete within 5 Business Days after receipt of the Seller’s Cure Notice, the Buyer may sue the Seller for breach and, in addition, do any or all of the following:

 

(i)elect to seek specific performance of this document by the Seller; or

 

(ii)seek damages for breach of this document.

 

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17.3Termination for Material Adverse Change

 

(a)If before Completion a Material Adverse Change occurs, then the Buyer may immediately terminate this document by giving notice in writing to the Seller.

 

(b)Termination of this document in accordance with clause 17.3(a) does not affect any accrued rights or remedies of either party.

 

(c)Clauses 1, 2.6, 12, 17.1(c), 18, 20, 21, 22, 23 and 24 of this document as well as any other term by its nature intended to survive termination of this document, survive and continue to apply after termination of this document in accordance with clause 17.3(a).

 

17.4No termination or rescission

 

(a)Except in accordance with the express terms of this document, no party is entitled to terminate this document for any reason.

 

(b)No party is entitled to rescind this document in any circumstances.

 

18Confidential Information

 

18.1Confidential Information

 

Subject to clause 18.3, clause 18.7, clause 18.8 and clause 18.9, no Confidential Information may be disclosed by the Receiving Party to any person except:

 

(a)to Representatives of the Receiving Party or its Related Bodies Corporate requiring the information for the purposes of this document;

 

(b)in the case of the Buyer or Buyer Guarantor, to any bona fide senior lenders to the Buyer Group for the purposes of obtaining finance in connection with the Transaction;

 

(c)with the consent of the Disclosing Party;

 

(d)if the Receiving Party is required to do so by law, a stock exchange or any regulatory authority; or

 

(e)if the Receiving Party is required to do so in connection with legal proceedings relating to this document except that this paragraph does not permit the disclosure of any information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies.

 

18.2Disclosure of Confidential Information

 

If the Receiving Party discloses information under clause 18.1(a) or 18.1(b) the Receiving Party must use its reasonable endeavours to ensure that recipients of the Confidential Information do not disclose the Confidential Information except in the circumstances permitted in clause 18.1.

 

18.3Public Filings

 

(a)The parties acknowledge that the Buyer Group may be required to prepare and file a Proxy Statement and/or other filings required by the SEC or under the rules of any securities exchange or regulatory authority (Public Filings).

 

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(b)To the maximum extent permitted by law and/or the rules of any relevant securities exchange, the Buyer and Buyer Guarantor must:

 

(i)promptly give notice of the intended disclosure to, and consult with, the Seller in respect of the form and content of the Public Filings; and

 

(ii)use its reasonable endeavours to minimise the disclosure of any Confidential Information in connection with the preparation, filing and distribution of any Public Filings (including through seeking confidential treatment from the SEC or any other relevant securities exchanges or regulatory authorities and applying appropriate redactions where practicable, in each case, in respect of commercially sensitive information of the Seller Group set forth in this document, the Royalty Deed and/or the Offtake Agreement, whether disclosed in agreed form or final executed copy).

 

18.4Use of Confidential Information

 

Except for Confidential Information of the Business, the Buyer or its Related Bodies Corporate must not use any Confidential Information except for the purpose of performing its obligations under this document.

 

18.5Excluded Information

 

Clauses 18.1, 18.2 and 18.3 do not apply to Excluded Information.

 

18.6Delivery of materials

 

The Receiving Party must, on request of the Disclosing Party, immediately deliver to the Disclosing Party or otherwise destroy all documents or other materials containing or referring to Confidential Information of the Disclosing Party which are in the possession, power or control of:

 

(a)the Receiving Party; or

 

(b)persons who have received Confidential Information under clause 18.1(a) or 18.1(b).

 

18.7Disclosure prior to the date of this document

 

The Buyer acknowledges that the Seller and its Related Bodies Corporate have disclosed information prior to the date of this document which may be of a confidential nature and that clause 18.1 does not apply to any such disclosure prior to the date of this document.

 

18.8Use of Personal Information by the Seller after Completion

 

If the Seller is required or authorised under this document or by law to retain any Transaction Personal Information which is part of the Confidential Information, the Seller may use and disclose that Transaction Personal Information for the purpose for which it is required or authorised to be retained under this document or by law.

 

18.9Tax reporting

 

Notwithstanding anything else in this document, the Buyer and the Seller may disclose the transactions under this document to the Australian Taxation Office.

 

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18.10Survival of termination

 

This clause 18 will survive termination of this document.

 

19Announcements

 

19.1Public announcements

 

Subject to clause 19.2, no party may, before, on, or after Completion, make or send a public announcement, communication or circular relating to the Transaction unless it has first obtained the written consent of the Buyer and the Seller which consent is not to be unreasonably withheld or delayed.

 

19.2Public announcements required by law

 

Clauses 18.1 and 19.1 do not apply to a public announcement, communication or circular required by law or a regulation of a stock exchange, if the party required to make or send it has:

 

(a)provided the other parties with sufficient notice to enable them to seek a protective order or other remedy; and

 

(b)provided all assistance and co-operation that the other parties consider necessary to prevent or minimise that disclosure.

 

20Costs and Duty

 

20.1Legal costs

 

The Seller and the Buyer agree to pay their own Costs in connection with the preparation, negotiation, execution and completion of this document, except for amounts covered by clause 20.2.

 

20.2Duty

 

The Buyer:

 

(a)agrees to pay or reimburse all Duty chargeable, payable or assessed as being payable in relation to the execution or performance of this document and any transaction contemplated by this document (including any fees, fines, penalties and interest in connection with any of those amounts); and

 

(b)indemnifies the Seller against, and agrees to reimburse and compensate the Seller for, any liability incurred by the Seller as a result of the Buyer not complying with clause 20.2(a).

 

The Buyer agrees to pay amounts due to the Seller under this clause 20.2 within 3 Business Days of demand from the Seller.

 

21Notices and other communications

 

21.1Form

 

(a)Unless this document expressly states otherwise, all notices, demands, certificates, consents, approvals, waivers and other communications (Notices) in connection with this document must be in writing and signed by the sender (if an individual) or an Authorised Officer of the sender.

  

(b)All Notices must also be marked for the attention of the person referred to in the Details (or, if the recipient has notified otherwise, then marked for attention in the way last notified).

 

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21.2Delivery

 

Notices must be:

 

(a)left at the address referred to in the Details;

 

(b)sent by express post (airmail if appropriate) to the address referred to in the Details; or

 

(c)sent by email to the email address set out or referred to in the Details.

 

However, if the intended recipient has notified changed contact details, then Notices must be sent to the changed contact details.

 

21.3When effective

 

Notices take effect from the time they are received or taken to be received under clauses 21.4 or 21.5 (whichever happens first) unless a later time is specified in the Notice.

 

21.4Receipt - post

 

If sent by express post, Notices are taken to have been received seven days after posting (or fourteen days after posting if posted to or from a place outside Australia).

 

21.5Receipt - email

 

If sent by email, Notices are taken to have been received:

 

(a)when the sender receives an automated message confirming delivery; or

 

(b)4 hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that delivery failed.

 

21.6Receipt outside business hours

 

Despite anything else in this clause 21, if Notices are received or taken to be received under clauses 21.4 or 21.5 after 5.00pm on a Business Day or on a non-Business Day, they are taken to be received at 9.00am on the next Business Day.  For the purposes of this clause, the place in the definition of Business Day is taken to be the place specified in the Details as the address of the recipient and the time of receipt is the time in that place.

 

22GST

 

22.1Definitions and interpretation

 

For the purposes of this clause 22:

 

(a)words and phrases which have a defined meaning in the GST Act have the same meaning when used in this clause 22, unless the contrary intention appears; and

 

(b)each periodic or progressive component of a supply to which section 156-5(1) of the GST Act applies is to be treated as if it were a separate supply.

 

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22.2GST exclusive

 

Unless expressly stated otherwise, all consideration to be provided under this document is exclusive of GST.

 

22.3Payment of GST

 

(a)If GST is payable, or notionally payable, on a supply made in connection with this document, the party providing the consideration for the supply agrees to pay to the supplier an additional amount equal to the amount of GST payable on that supply (GST Amount).

 

(b)Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time as the GST-exclusive consideration for the supply, or the first part of the GST-exclusive consideration for the supply (as the case may be), is payable or is to be provided.

 

(c)This clause does not apply to the extent that the consideration for the supply is expressly stated to include GST or the supply is subject to a reverse-charge.

 

22.4Adjustment events

 

If an adjustment event arises for a supply made in connection with this document, the GST Amount (or the GST component of any consideration expressed to be inclusive of GST) must be recalculated to reflect that adjustment. The supplier or the party providing the consideration for the supply (as the case may be) agrees to make any payments necessary to reflect the adjustment and the supplier agrees to issue an adjustment note.

 

22.5Reimbursements

 

Any payment, indemnity, reimbursement or similar obligation that is required to be made in connection with this document which is calculated by reference to an amount paid by another party must be reduced by the amount of any Input Tax Credits which the other party (or the representative member of any GST group of which the other party is a member) is entitled. If the reduced payment is consideration for a taxable supply, clause 22.3 applies to the reduced payment.

 

23General

 

23.1Variation and waiver

 

A provision of this document, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party to be bound.

 

23.2Consents, approvals or waivers

 

By giving any approval, consent or waiver a party does not give any representation or warranty as to any circumstance in connection with the subject matter of the consent, approval or waiver.

 

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23.3Discretion in exercising rights

 

Unless this document expressly states otherwise, a party may exercise a right, power or remedy or give or refuse its consent, approval or a waiver in connection with this document in its absolute discretion (including by imposing conditions).

 

23.4Partial exercising of rights

 

Unless this document expressly states otherwise, if a party does not exercise a right, power or remedy in connection with this document fully or at a given time, it may still exercise that right, power or remedy later.

 

23.5Conflict of interest

 

Each party may exercise its rights, powers and remedies in connection with this document even if this involves a conflict of duty or it has a personal interest in the exercise of those rights, powers or remedies.

 

23.6Remedies cumulative

 

The rights, powers and remedies in connection with this document are in addition to other rights, powers and remedies given in any other document or by law independently of this document.

 

23.7Indemnities and reimbursement obligations

 

Unless specified otherwise, any indemnity, reimbursement or similar obligation in this document:

 

(a)is a continuing obligation despite the satisfaction of any payment or other obligation in connection with this document, any settlement or any other thing, including Completion;

 

(b)is independent of any other obligations under this document or any other document; and

 

(c)continues after this document, or any obligation arising under it, ends.

 

It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity in connection with this document.

 

23.8Inconsistent law

 

To the extent the law permits, this document prevails to the extent it is inconsistent with any law.

 

23.9Supervening law

 

Any present or future law which operates to vary the obligations of a party in connection with this document with the result that another party’s rights, powers or remedies are adversely affected (including, by way of delay or postponement) is excluded except to the extent its exclusion is prohibited or rendered ineffective by law.

 

23.10Counterparts

 

This document may consist of a number of copies, each signed by one or more parties to it. If so, the signed copies are treated as making up a single document and the date on which the last counterpart is executed is the date of the document.

 

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23.11Representations and undertakings continue

 

Each representation, warranty and undertaking in this document is a continuing obligation despite Completion.

 

23.12Entire agreement

 

This document constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

 

23.13Further steps

 

The parties agree to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed), which another party asks and considers necessary to:

 

(a)bind the parties and any other person intended to be bound under this document; or

 

(b)show whether the parties are complying with this document.

 

23.14Prompt performance

 

Each party agrees to perform its obligations under this document promptly, unless a specific time for performance is expressly stated in this document. Time is of the essence in this document in respect of an obligation of a party to pay money.

 

23.15Assignment or other dealings

 

No party may assign or otherwise deal with its rights under this document or allow any interest in its rights to arise or be varied, in each case without the consent of the other parties, which consent must not be unreasonably withheld.

 

23.16No liability for loss

 

Unless this document expressly states otherwise, a party is not liable for any loss, liability or Costs arising in connection with the exercise or attempted exercise of, failure to exercise, or delay in exercising, a right, power or remedy in connection with this document.

 

23.17Severability

 

If the whole or any part of a provision of this document is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this document has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this document or is contrary to public policy.

 

23.18Rules of construction

 

No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of or seeks to rely on this document or any part of it.

 

23.19Payment with withholding or deduction

 

(a)The Buyer agrees to make all payments under this document:

 

(i)in full without set-off or counterclaim, and without any deduction in respect of Tax unless such deduction is required by law; and

 

(ii)unless otherwise agreed in writing between the relevant payer(s) and payee(s), in Australian dollars in immediately available funds.

 

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(b)If the Buyer is required to make any withholding, deduction or payment for or on account of Tax or by any Government Agency, the Buyer:

 

(i)must pay or procure the payment of the full amount of the withholding or deduction, or make or procure the making of the payment, to the appropriate Government Agency under applicable law; and

 

(ii)at the same time as the relevant deduction, withholding or payment, pay such additional amount to the Seller as is required to ensure that the net amount received by the Seller is equal to the full amount which would have been received by the Seller had no such deduction, withholding or payment been required to be made.

 

(c)If:

 

(i)the Buyer:

 

(A)pays, or procures the payment of, an amount to a Government Agency in accordance with clause 23.19(b)(i) (Tax Payment); and

 

(B)pays an additional amount to the Seller in accordance with clause 23.19(b)(ii); and

 

(ii)a Seller Group Member obtains and utilises a credit against Tax that is attributable to the Tax Payment,

 

then the Seller shall pay an amount to the Buyer equal to the amount of such credit against Tax.

 

(d)A Seller Group Member will take reasonable steps to utilise such a credit against Tax (Relevant Tax Credit). For the avoidance of doubt, this does not require a Seller Group Member to utilise a Relevant Tax Credit in priority to any other Tax credits or relief.

 

23.20No Claims Against Trust Account

 

(a)The Seller acknowledges that it has read the Buyer Guarantor’s Prospectus and all other registration statements and reports filed by the Buyer Guarantor with the SEC since July 28, 2021 and the Trust Agreement and understands that the Buyer Guarantor has established the Trust Account for the benefit of the Buyer Guarantor’s public shareholders and that disbursements from the Trust Account are available only in the limited circumstances set forth in the Trust Agreement.

 

(b)Each such party further acknowledges that, if the Transaction, or, in the event of a termination of this document, another Business Combination, is not consummated by July 28, 2023 or such later date as approved by the Buyer Guarantor Shareholders to complete a Business Combination, the Buyer Guarantor will be obligated to return to its shareholders the amounts being held in the Trust Account.

 

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(c)For and in consideration of the Buyer Guarantor entering into this document and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each such party hereby agrees on behalf of itself and its Related Parties that, notwithstanding anything to the contrary in this document:

 

(i)neither such party, nor any of its Related Parties do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or shall make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this document or any proposed or actual business relationship between the Buyer Guarantor or its Representatives, on the one hand, and the Seller or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, “Released Trust Claims”) provided, however, that nothing herein shall serve to limit or prohibit the Seller’s right to pursue a claim against Buyer Guarantor or any of its Affiliates or for legal relief against assets held outside the Trust Account (including from and after the consummation of a Business Combination other than as contemplated by this document) or for specific performance, injunctive or other equitable relief in connection with the consummation of the Transactions so long as such claim would not affect Buyer Guarantor’s ability to fulfil its obligation to effectuate the Buyer Guarantor Shareholder Redemptions;

 

(ii)the Seller on behalf of itself and its Related Parties hereby irrevocably waives any Released Trust Claims that it or any of its Related Parties may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Buyer Guarantor or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with the Buyer Guarantor or its Related Parties);

 

(iii)the Seller agrees and acknowledges that such irrevocable waiver is material to this document and specifically relied upon by the Buyer Guarantor and its Related Parties to induce the Buyer Guarantor to enter into this document, and such party further intends and understands such waiver to be valid, binding and enforceable against it and each of its Related Parties under applicable law;

 

(iv)to the extent the Seller or any of its Related Parties commence any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Buyer Guarantor or its Representatives, which proceeding seeks, in whole or in part, monetary relief against the Buyer Guarantor or its Representatives, the Seller hereby acknowledges and agrees that it and its Related Parties’ sole remedy shall be against funds held by the Buyer Guarantor outside of the Trust Account and that such claim shall not permit the Seller or its Related Parties (or claimant on any of their behalves or in lieu of any of them) to have any claim against the Trust Account.

 

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24Governing law

 

24.1Governing law and jurisdiction

 

The law in force in the place specified in the Details governs this document. The parties submit to the non-exclusive jurisdiction of the courts of that place.

 

24.2Serving documents

 

Without preventing any other method of service, any document in an action in connection with this document may be served on a party by being delivered or left at that party’s address for services of notices under clause 21.2 or, in respect of the Buyer Guarantor, in accordance with clause 24.3.

 

24.3Appointment of process agent

 

(a)The Buyer Guarantor irrevocably appoints Squire Patton Boggs (AU) of Level 21, 300 Murray Street, Perth WA 6000, as its agent to accept service of process in Australia in any legal action or proceedings arising out of this document, service upon which shall be deemed completed whether or not forwarded to or received by the Buyer Guarantor. The Buyer Guarantor acknowledges that it has provided the Seller with a copy of a written acceptance of appointment by that process agent.

 

(b)The Buyer Guarantor agrees to inform the Seller in writing of any change of address of such process agent within 5 Business Days of such change.

 

(c)If such process agent ceases to be able to act as such or to have an address in Australia, the Buyer Guarantor irrevocably agrees to appoint promptly a new process agent in Australia acceptable to Seller (acting reasonably) and to deliver to the Seller within 10 Business Days a copy of a written acceptance of appointment by the process agent. In the event that the Buyer Guarantor fails to appoint a new process agent, it shall be effective service to serve the process upon the last known address in Australia of the last known process agent for the Buyer Guarantor under this clause 24.3 notwithstanding that such process agent is no longer found at such address or has ceased to act, provided that the Buyer Guarantor is also notified in accordance with clause 21.

  

EXECUTED as an agreement

 

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Schedule 1Shares

 

 

Seller  Class of shares  Number of shares  Percentage of share class   Beneficial owner  Fully paid?
Glencore Operations Australia Pty Limited (ACN 128 115 140)  Ordinary  1   100%  Yes  Yes

 

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Schedule 2Mining Tenements

 

1             PART A – Company Tenements

 

Mining Tenement  Registered Permit holder  Legal interest of Company   Beneficial interest of Company 
CML 5  Company   100%   100%
MPL 1093  Company   100%   100%
MPL 1094  Company   100%   100%
EL6223  AuriCula Mines Pty Ltd   0%   90%

 

2             PART B – Exploration Licences

 

Exploration Licence  Registered permit
holder as at date
of this document
  Legal interest as at
date of this
document
  Beneficial interest as
at date of this
document
EL 5693  Isokind  Isokind – 100%  Isokind – 60% Acelight – 40%
EL 5983  Isokind  Isokind – 100%  Isokind – 60% Acelight – 40%
EL 6907  Actway  Actway – 100%  Actway – 90%

 

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Schedule 3         Properties

 

Lot Title Reference Tenure Registered Holder
Lot 10 in Deposited Plan 792294 10/792294 Freehold Company
Lot 10 in Deposited Plan 860711 10/860711 Freehold Company
Lot 10 in Deposited Plan 793808 10/1115073 Freehold Company
Lot 13 in Deposited Plan 793808 13/793808 Freehold Company
Lot 16 in Deposited Plan 792294 16/792294 Freehold Company
Lot 16 in Deposited Plan 806636 16/806636 Freehold Company
Lot 22 in Deposited Plan 806636 22/806636 Freehold Company
Lot 31 in Deposited Plan 1115073 31/1115073 Freehold Company
Lot 32 in Deposited Plan 1115073 32/1115073 Freehold Company
Lot 33 in Deposited Plan 129492 33/129492 Freehold Company
Lot 33 in Deposited Plan 1115073 33/1115073 Freehold Company
Lot 35 in Deposited Plan 261594 35/261594 Freehold Company
Lot 36 in Deposited Plan 1115073 36/1115073 Freehold Company

 

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Lot Title Reference Tenure Registered Holder
Lot 38 in Deposited Plan 220704 38/220704 Freehold Company
Lot 41 in Deposited Plan 847169 41/847169 Freehold Company
Lot 42 in Deposited Plan 792294 42/792294 Freehold Company
Lot 42 in Deposited Plan 860711 42/860711 Freehold Company
Lot 43 in Deposited Plan 860711 43/860711 Freehold Company
Lot 46 in Deposited Plan 1115073 46/1115073 Freehold Company
Lot 48 in Deposited Plan 220704 48/220704 Freehold Company
Lot 49 in Deposited Plan 220704 49/220704 Freehold Company
Lot 56 in Deposited Plan 863149 56/863149 Freehold Company
Lot 60 in Deposited Plan 860711 60/860711 Freehold Company
Lot 70 in Deposited Plan 860711 70/860711 Freehold Company
Lot 122 in Deposited Plan 1057930 122/1057930