Wrap Text
Scheme Implementation agreement
Tawana Resources NL
(Incorporated in Australia)
(Registration number ACN 085 166 721)
Share code on the JSE Limited: TAW
JSE ISIN: AU0000TAWDA9
Share code on the Australian Securities Exchange Limited: TAW
ASX ISIN: AU000000TAW7
(“the Company” or “Tawana”)
Scheme Implementation Agreement
Tawana shareholders are referred to the announcement released today, 5 May 2018 relating to the Alliance
Mineral Assets Limited merge.
Below please find the scheme implementation agreement, which formed part of the above-mentioned
announcement.
5 April 2018
Sponsor
PricewaterhouseCoopers Corporate Finance (Pty) Ltd
Schedule 1
KING&WOOD
MALLESONS
Conformed copy
Scheme Implementation
Agreement
Alliance Mineral Assets Limited (AMAL)
Tawana Resources NL (Tawana)
King & Wood Mallesons
Level 30
QV1 Building
250 St Georges Terrace
Perth WA 6000
Australia
T +61 8 9269 7000
F +61 8 9269 7999
DX 210 Perth
www.kwm.com
Scheme Implementation Agreement
Contents
Details 1
General terms 2
1 Definitions and interpretation 2
1.1 Definitions 2
1.2 References to certain general terms 15
1.3 Next day 16
1.4 Next Business Day 16
1.5 Headings 16
2 Agreement to propose and implement Scheme 17
2.1 Tawana to propose Scheme 17
2.2 Agreement to implement Transaction 17
3 Conditions Precedent 17
3.1 Conditions Precedent 17
3.2 Benefit of certain Conditions Precedent 17
3.3 Waiver of Conditions Precedent 17
3.4 Reasonable endeavours 18
3.5 FIRB application 18
3.6 Regulatory matters 18
3.7 Notices in relation to Conditions Precedent 19
3.8 Effect of waiver or non-fulfilment 19
3.9 Consultation on failure of Conditions Precedent 19
3.10 Failure to agree 20
3.11 Regulatory Approval 20
3.12 Scheme voted down 20
4 Outline of Scheme 21
4.1 Scheme 21
4.2 Scheme Consideration 21
4.3 Undertakings held as trustee 21
4.4 Ineligible Shareholders 21
4.5 Consideration shares 22
5 Options 22
5.1 Optionholder offers 22
5.2 Option Consideration 22
5.3 ASX waiver 23
5.4 ASIC relief 23
6 Co-operation and timing 23
6.1 General obligations 23
6.2 Access to people and information 23
6.3 Right to separate representation 24
7 Implementation obligations of the parties 24
7.1 Tawana's obligations 24
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7.2 AMAL’s obligations 24
8 AMAL Shareholder Resolutions 24
8.1 AMAL’s obligations 24
8.2 Tawana’s obligations 25
8.3 AMAL Board recommendation 25
8.4 SGX approval 25
9 Scheme Booklet 26
9.1 Preparation 26
9.2 Content of the Scheme Booklet 26
9.3 AMAL Information 27
9.4 Disagreement on content 27
9.5 Verification 28
10 Conduct of business 28
10.1 Overview 28
10.2 Specific obligations 28
10.3 Prohibited actions 29
10.4 Exceptions to conduct of business restrictions 30
11 Spin-out Transaction 30
11.1 Spin-out Transaction 30
11.2 No adjustment to Exchange Ratio etc 32
12 Interim funding 33
12.1 Capital Raisings 33
12.2 AMAL's obligation 34
12.3 Future capital requirements 34
12.4 Proposed Facility 34
13 Corporate matters 35
13.1 AMAL Board composition 35
13.2 Tawana Board composition 35
14 Releases 35
14.1 Tawana and Tawana Indemnified Parties 35
14.2 AMAL and AMAL Indemnified Parties 36
14.3 Deeds of access, indemnity and insurance for Tawana 36
14.4 Insurance for AMAL 37
14.5 Bald Hill Manager Claims 37
14.6 AMAL JVA Claims 38
15 Exclusivity 39
15.1 No continuing discussions 39
15.2 No-shop 39
15.3 No-talk 39
15.4 No due diligence 40
15.5 Notice of approaches 40
15.6 Exceptions to no-talk and no due diligence 40
15.7 Matching right 41
15.8 Legal advice 41
16 Break Fee 42
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16.1 Background 42
16.2 Payment by Tawana to AMAL 42
16.3 No amount payable if Scheme becomes Effective 43
16.4 Timing of payment 43
16.5 Nature of payment 43
16.6 Tawana’s limitation of liability 43
16.7 Compliance with law 44
16.8 Survival 44
17 Reverse Break Fee 44
17.1 Background 44
17.2 Payment by AMAL to Tawana 44
17.3 No amount payable if Scheme becomes Effective 45
17.4 Timing of payment 45
17.5 Nature of payment 46
17.6 AMAL's limitation of liability 46
17.7 Compliance with law 46
17.8 Survival 46
18 Representations and warranties 46
18.1 Tawana's representations and warranties 46
18.2 Tawana's indemnity 47
18.3 Tawana warranty certificate 47
18.4 Qualifications to Tawana’s representations and warranties 47
18.5 AMAL’s representations and warranties 47
18.6 AMAL’s indemnity 47
18.7 AMAL warranty certificate 47
18.8 Qualifications to AMAL’s representations and warranties 48
18.9 Survival of representations 48
18.10 Survival of indemnities 48
19 Court proceedings 48
19.1 Appeal process 48
19.2 Defence of proceedings 49
19.3 Costs 49
20 Termination 49
20.1 Termination events 49
20.2 Termination 51
20.3 Effect of termination 51
20.4 Damages 51
21 Public announcements 52
21.1 Public announcement of Scheme 52
21.2 Required disclosure 52
21.3 Other announcements 52
22 Confidential Information 52
23 Notices and other communications 52
23.1 Form - all communications 52
23.2 Form - communications sent by email 53
23.3 Delivery 53
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23.4 When effective 53
23.5 When taken to be received 53
23.6 Receipt outside business hours 54
24 Goods and services tax (GST) 54
24.1 Consideration GST exclusive 54
24.2 Payment of GST 54
24.3 Reimbursements 54
24.4 Calculation of payments 54
24.5 Interpretation 54
25 Miscellaneous 55
25.1 Discretion in exercising rights 55
25.2 Partial exercising of rights 55
25.3 No liability for loss 55
25.4 Approvals and consents 55
25.5 Conflict of interest 55
25.6 Remedies cumulative 55
25.7 Variation and waiver 55
25.8 No merger 55
25.9 Indemnities 55
25.10 Enforceability 56
25.11 Further steps 56
25.12 Construction 56
25.13 Costs 56
25.14 Stamp duty 56
25.15 Entire agreement 56
25.16 Assignment 56
25.17 No representation or reliance 56
25.18 Governing law 57
25.19 Counterparts 57
Schedule 1 Prescribed Events 58
Schedule 2 Conditions Precedent (clause 3.1) 62
Schedule 3 Timetable* (clause 6.1) 65
Schedule 4 Tawana’s obligations (clause 7.1) 66
Schedule 5 AMAL’s obligations (clause 7.2) 70
Schedule 6 Tawana’s representations and warranties (clause 18.1) 72
Schedule 7 AMAL’s representations and warranties (clause 18.5) 75
Signing page
Annexure A - Scheme
Annexure B - Deed Poll
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Scheme Implementation Agreement
Details
Parties AMAL and Tawana
AMAL Name Alliance Mineral Assets Limited
ABN 56 147 393 735
Formed in Commonwealth of Australia
Address Unit 6, 24 Parkland Rd, Osborne Park WA 6017
Email pauline.gately@alliancemineralassets.com.au
Fax +61 8 9388 8837
Attention Ms Pauline Gately (Chairperson)
Tawana Name Tawana Resources NL
ABN 69 085 166 721
Formed in Commonwealth of Australia
Address Level 3, 20 Parkland Road, Osborne Park WA
6017
Email mark.calderwood@tawana.com.au
Fax +61 8 9489 2600
Attention Mr Mark Calderwood (Managing Director)
Recitals A AMAL proposes to acquire all Tawana Shares pursuant to a
members’ scheme of arrangement under Part 5.1 of the
Corporations Act.
B As mutually agreed between Tawana and AMAL, Tawana
intends to propose the Scheme and issue the Scheme
Booklet.
C Tawana and AMAL have agreed to implement the
Transaction on the terms and conditions of this agreement.
Governing law Western Australia
Date of See Signing page
agreement
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Scheme Implementation Agreement
General terms
1 Definitions and interpretation
1.1 Definitions
These meanings apply unless the contrary intention appears.
AMAL Board means the board of directors of AMAL.
AMAL Cash Budget means the AMAL monthly cash budget for the period to 31
December 2018 (excluding cash, cash equivalent and Indebtedness attributable
to Bald Hill Joint Venture activities), as initialled by the parties for identification
purposes only.
AMAL Competing Transaction means any proposal, agreement, arrangement,
reorganisation or transaction which, if entered into or completed, would mean a
person (other than Tawana or its Related Bodies Corporate), either alone or
together with its associates, would:
(a) directly or indirectly, acquire an interest or Relevant Interest in, become
the holder of, or otherwise acquire or have a legal, beneficial or
economic interest in:
(i) 50% or more of the AMAL Shares; or
(ii) all, or a substantial or material part, of AMAL’s business or
assets;
(b) acquire control of AMAL, within the meaning of section 50AA of the
Corporations Act; or
(c) otherwise directly or indirectly acquire, merge with, or acquire a
significant shareholding or economic interest in AMAL or AMAL’s
business or assets,
whether by way of takeover bid, scheme of arrangement, shareholder approved
acquisition, capital reduction or buy-back, sale or purchase of assets, sale or
purchase of shares, joint venture, reverse takeover, dual-listed company structure
or other synthetic merger or other transaction or arrangement.
AMAL Director means a director of AMAL.
AMAL Excused Conduct means:
(a) any act or omission of AMAL or its Representatives that is required
under the terms of the Bald Hill JVA, including any act or omission
directed by the management committee established under the Bald Hill
JVA which AMAL or its Representatives are required to comply with
under the terms of the Bald Hill JVA; and
(b) any conduct of Lithco or its Representatives (including nominees of
Lithco on the management committee established under the Bald Hill
JVA) that is in breach of Lithco’s obligations under the Bald Hill JVA or is
otherwise reasonably likely to be considered inconsistent with good
mining practices in Australia.
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AMAL Indemnified Parties means AMAL, its Related Bodies Corporate and the
officers, employees and advisers of each of AMAL and each of its Related Bodies
Corporate.
AMAL Information means the information regarding AMAL provided by AMAL to
Tawana in writing for inclusion in the Scheme Booklet, including:
(a) information about AMAL, its Related Bodies Corporate, businesses,
interests and dealings in Tawana Shares, its intentions for the Tawana
Group's employees and funding; and
(b) any other information regarding AMAL as is required to be included in
the Scheme Booklet under all applicable laws (including the
Corporations Act and the Corporations Regulations) and the applicable
rules and policies of ASX and ASIC (including the ASX Listing Rules and
applicable ASIC Regulatory Guides) that the parties agree is "AMAL
Information" and that is identified in the Scheme Booklet as such.
For the avoidance of doubt, AMAL Information does not include information
about the Tawana Group (except to the extent it relates to any statement of
intention of AMAL relating to the Tawana Group following the Effective Date).
AMAL Lender Options means 15,600,000 unlisted options issued by AMAL
over unissued AMAL Shares, held by the AMAL Lenders and exercisable on or
before March 2021 (and which may be settled by AMAL in cash prior the
underlying shares receiving listing and quotation approval from SGX).
AMAL Lenders means Tribeca Investment Partners Pty Ltd, Precision
Opportunities Fund Ltd, Adrinat Investments Pty Ltd ATF Baron Family Super
Fund, Crofton Park Developments Pty Ltd ATF Brougham Superannuation Fund
and M. Alter Super Fund Pty Ltd ATF Alter Family Superannuation Fund.
AMAL Loan Deed means the loan deed dated 28 March 2018 between AMAL
and the AMAL Lenders.
AMAL Management Shares means 13,250,000 AMAL Shares to be issued to
AMAL officers and employees after the date of this agreement, conditional on the
approval of AMAL Shareholders in accordance with SGX Listing Rules.
AMAL Material Adverse Change means a Specified Event which, individually or
when aggregated with other Specified Events of a like kind, results in, or would
be reasonably expected to result in, the value of the net assets of AMAL (as
disclosed in the balance sheet of AMAL as at 31 December 2017) being reduced
by at least A$5 million, but does not include:
(a) any matter, event or circumstance Fairly Disclosed to, or actually known
by, Tawana or its Representatives before the Execution Date;
(b) a matter, event or circumstance resulting from AMAL Excused Conduct
or a Claim by Tawana under or in connection with the Bald Hill JVA;
(c) any matter, event or circumstance which impacts AMAL and Lithco, as
joint venturers under the Bald Hill JV, in a similar manner and to a similar
extent;
(d) any matter, event or circumstance arising from changes in law or general
economic, political or regulatory conditions in Australia or that affects or
otherwise has an impact on Australia;
(e) any change in accounting policy required by law;
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(f) any change occurring directly or indirectly as a result of any matter,
event or circumstance required by this agreement, the Scheme or the
transactions contemplated by them, including a Permitted Transaction;
(g) any change or disruption to the financial markets of Australia;
(h) any change to currency exchange or commodity market conditions in
Australia, including lithium prices;
(i) an event, change, matter, thing or condition that is reasonably likely to
have resulted from, been caused by or occurred in response to, the
Transaction or its announcement;
(j) any matter, event or circumstance agreed by Tawana in writing; or
(k) a change resulting directly from a general deterioration in equity markets,
interest rates, exchange rates or credit spreads, that impacts AMAL and
comparable lithium exploration, development or production companies in
a similar manner.
AMAL Notice of Meeting means the notice of meeting and the AMAL
Shareholders’ Circular to be prepared by AMAL in respect of the AMAL
Shareholder Resolutions in accordance with the terms of this agreement and to
be despatched to AMAL Shareholders.
AMAL Prescribed Event means, except:
(a) to the extent Fairly Disclosed to Tawana; or
(b) as expressly contemplated by this agreement or the Scheme, including
as part of or in connection with a Permitted Transaction,
any of the events listed in Part 2 of Schedule 1 provided that an AMAL
Prescribed Event will not occur where:
(c) AMAL has first consulted with Tawana in relation to the event and
Tawana has approved the proposed event in writing; or
(d) it is caused by or attributable to AMAL Excused Conduct.
AMAL Share means a fully paid ordinary share in the capital of AMAL.
AMAL Shareholder means:
(a) any person (other than CDP) registered in the register of members of
AMAL as a holder of AMAL Shares; and
(b) where CDP is registered in the register of members of AMAL as the
holder of AMAL Shares, any person who is registered in the Depository
Register as having AMAL Shares credited to their Securities Account.
AMAL Shareholders’ Circular means the circular to be issued to AMAL
Shareholders in respect of the AMAL Shareholder Resolutions pursuant to the
SGX Listing Rules.
AMAL Shareholder Resolutions means such resolutions of AMAL Shareholders
as may be necessary to:
(a) approve the Transaction including the issuance of the AMAL Shares
pursuant to the Scheme for the purposes of, and in accordance with, the
SGX Listing Rules;
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(b) approve such other matters as may be necessary or desirable in
connection with the Scheme or the admission of AMAL to the Official List
(including amendments to the AMAL constitution),
but excluding, to avoid doubt, any approvals in connection with the issue of the
AMAL Management Shares or the AMAL Lender Options (or AMAL Shares
resulting therefrom).
AMAL SGX Information means all information contained in the SGX Documents
other than the Tawana SGX Information and the SGX Valuation Report(s).
AMAL Superior Proposal means a bona fide AMAL Competing Transaction
which the AMAL Board, acting in good faith, and after receiving written advice
from its external legal and financial advisers, determines is:
(a) reasonably capable of being completed taking into account all aspects of
the AMAL Competing Transaction and any timing considerations,
conditions precedent and the identity of the proponent; and
(b) would, if completed substantially in accordance with its terms, be more
favourable to AMAL Shareholders (as a whole) than the Scheme, taking
into account all terms and conditions of the AMAL Competing
Transaction (including consideration, conditionality, funding, certainty
and timing).
Announcement means the public announcement by a party referred to in
clause 21.1.
ASIC means the Australian Securities and Investments Commission.
ASX means ASX Limited ABN 98 008 624 691 or Australian Securities
Exchange, as appropriate.
ASX Consideration Shares means all AMAL Shares issued as Scheme
Consideration (other than AMAL Shares the subject of an election by a Scheme
Participant referred to in clause 4.2(b)), being AMAL Shares held by a Scheme
Participant on, and recorded in, the register of members of AMAL (and not in the
Depository Register).
ASX Listing Rules means the listing rules of ASX.
Authorised Officer means:
(a) in respect of AMAL, Pauline Gately, or any other person nominated by
AMAL to act as an Authorised Officer under this agreement and notified
to Tawana in writing; and
(b) in respect of Tawana, each of Mark Calderwood and Robert Benussi, or
any other person nominated by Tawana to act as an Authorised Officer
under this agreement and notified to AMAL in writing.
Bald Hill Joint Venture means the joint venture between AMAL and Lithco
established by, and contemplated in, the Bald Hill JVA.
Bald Hill JVA means the joint venture agreement entered into on or about 18
April 2017 between AMAL and Lithco in respect of the Bald Hill Project in
Western Australia.
Break Fee means A$2 million.
Business Day means a business day as defined in the ASX Listing Rules.
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Capital Raising has the meaning given in clause 12.1.
Catalist means the sponsor-supervised board of the SGX.
CDP means The Central Depository (Pte) Limited.
Claim means any action, suit, claim, demand, cause of action, dispute,
difference, cost or expense (including legal cost), legal, equitable, under statute
or otherwise, and other liabilities or any nature, and whether arising at common
law, in equity, under statute or otherwise.
Competing Transaction means an AMAL Competing Transaction or a Tawana
Competing Transaction, as the case may be.
Conditions Precedent means the conditions precedent set out in Schedule 2.
Confidentiality Agreement means the Mutual Confidentiality Agreement
between Tawana and AMAL dated 9 March 2017.
Controller has the meaning it has in the Corporations Act.
Corporations Act means the Corporations Act 2001 (Cth).
Corporations Regulations means the Corporations Regulations 2001 (Cth).
Court means the Federal Court of Australia or the Supreme Court of Western
Australia, or such other Australian court of competent jurisdiction agreed to in
writing by AMAL and Tawana.
Cowan Project means Tawana’s rights and interests in the Cowan Project and
the Yallari Project, located 50 kilometres south east of Kambalda in the Eastern
Goldfields of Western Australia and comprising exploration licences E15/1205,
E15/1377, E15/1401 (application), E15/1446, E15/1502, E15/1503, E15/1526,
E28/2702 and L15/379 (application), together with all associated agreements,
statutory licences and assets including mining information, core and samples,
and plant and equipment, including shares in Mount Belches.
Deed Poll means a deed poll substantially in the form of Annexure B to this
agreement, or such other form as agreed between AMAL and Tawana.
Depositor has the meaning given in Section 81SF of the Securities and Futures
Act, Chapter 289 of Singapore.
Depository Agent has the meaning given in Section 81SF of the Securities and
Futures Act, Chapter 289 of Singapore.
Depository Register has the meaning given in Section 81SF of the Securities
and Futures Act, Chapter 289 of Singapore.
Details means the section of this agreement headed “Details”.
Effective, when used in relation to the Scheme, means the coming into effect,
pursuant to section 411(10) of the Corporations Act, of the order of the Court
made under section 411(4)(b) of the Corporations Act in relation to the Scheme,
but in any event at no time before an office copy of the order of the Court is
lodged with ASIC.
Effective Date means the date on which the Scheme becomes Effective.
Encumbrance means any mortgage, lien, charge, pledge, encumbrance,
assignment by way of security, security interest (including any 'security interest'
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within the meaning of section 12 of the Personal Property Securities Act 2009
(Cth)), title retention, preferential right or trust arrangement, contractual right of
set-off, claim, covenant, or any other security arrangement or any other
arrangement having the same effect, whether registered or unregistered.
End Date means 31 December 2018 or such other date as is agreed in writing by
AMAL and Tawana.
Exchange Ratio means 1.10 AMAL Shares per Tawana Share, subject to any
alteration pursuant to clause 12.1(d).
Excluded Shareholder means AMAL and its associates.
Excluded Shares means Tawana Shares held by Excluded Shareholders on the
Record Date.
Exclusivity Period means the period from and including the Execution Date to
the earliest of:
(a) the termination of this agreement in accordance with its terms;
(b) the Effective Date; and
(c) the End Date.
Execution Date means the date of execution of this agreement.
Fairly Disclosed means, in respect of a party, disclosed to the other party and
any of the other party’s Representatives in writing prior to the Execution Date, to
the extent that, and in sufficient detail so as to enable, a reasonable and
sophisticated party such as AMAL or Tawana (or one of their Representatives) to
identify the nature and scope of the relevant matter, event or circumstance
(including, in each case, that the possible financial effect if any) of the relevant
matter, event or circumstance was reasonably ascertainable from the information
disclosed). Without limitation, a matter will be deemed Fairly Disclosed:
(a) by Tawana to AMAL, if announced on ASX in the two years up to, and
including, the Execution Date; and
(b) by AMAL to Tawana, if announced on SGX in the two years up to, and
including, the Execution Date.
FATA means the Foreign Acquisitions and Takeovers Act 1975 (Cth).
FIRB means the Foreign Investment Review Board.
First Court Date means the first day on which an application made to the Court,
in accordance with item 18 of Schedule 4, for orders under section 411(1) of the
Corporations Act convening the Scheme Meeting to consider the Scheme is
heard.
Headcount Test means the requirement under section 411(4)(a)(ii)(A) of the
Corporations Act that the resolution to approve the Scheme at the Scheme
Meeting is passed by a majority in number of Tawana Shareholders eligible to
vote at the Scheme Meeting and who are present and voting, either in person or
by proxy.
Implementation Date means the fifth Business Day following the Record Date or
such other date as is agreed in writing by Tawana and AMAL.
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Indebtedness means any debt or other monetary liability (whether actual or
contingent), together with all interest, fees and penalties accrued thereon, in
respect of moneys borrowed or raised or any financial accommodation, but
excluding contingent liabilities arising from bank guarantees and surety bonds or
any equivalent instrument provided by the relevant party as surety for contracts
entered into in the ordinary course of business.
Independent Expert means the independent expert appointed by Tawana under
item 4 of Schedule 4.
Independent Expert's Report means the report from the Independent Expert for
inclusion in the Scheme Booklet, including any update or supplementary report,
stating an opinion whether or not the Transaction is in the best interests of
Tawana Shareholders and setting out its reasons for that opinion.
Independent Valuer has the meaning given in clause 8.1(c).
Ineligible Shareholder means a Scheme Participant whose address shown in
the Register on the Record Date is a place outside of Australia and its external
territories, New Zealand, Hong Kong, Singapore and South Africa, unless AMAL
determines that it is lawful and not unduly onerous or impracticable to issue or
provide a Scheme Participant with an address outside those jurisdictions with
AMAL Shares under the Scheme.
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);
(b) it is in liquidation, in provisional liquidation, under administration or
wound up or has had a Controller appointed to any part of its property;
(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 agreement);
(d) an application or order has been made (and in the case of an
application, it is not stayed, withdrawn or dismissed within 30 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 (a), (b) or (c) above;
(e) it is taken (under section 459F(1) of the Corporations Act) to have failed
to comply with a statutory demand;
(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 agreement reasonably deduces it is so subject);
(g) it is otherwise unable to pay its debts when they fall due; or
(h) something having a substantially similar effect to (a) to (g) happens in
connection with that person under the law of any jurisdiction.
JSE means JSE Limited or the financial market operated by it known as the
Johannesburg Stock Exchange, as appropriate.
Lithco means Lithco No.2 Pty Ltd.
Losses means all Claims, demands, damages, losses, costs, expenses and
liabilities.
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Material Contract means, in respect of Tawana or AMAL, a contract or
commitment with a customer, client or supplier of the Tawana Group or AMAL
(as applicable) involving (or expected to involve) revenue, payments, expenditure
or financial commitments of more than $2 million annually in:
(a) in respect of AMAL, either of the financial years ended 30 June 2018 or
30 June 2019; and
(b) in respect of Tawana, either of the financial years ended 31 December
2018 or 31 December 2019,
and each of the following will be deemed to be “Material Contracts”:
(c) the Bald Hill JVA; and
(d) AMAL's and Lithco's respective lithium concentrate offtake contracts with
(amongst others) Burwill Holdings Limited and Burwill Commodity
Limited.
Metalicity Agreement means the agreement dated on or about 30 October 2017
between Mount Belches and Metalicity Energy in relation to the purchase by
Mount Belches of the Lake Cowan Project from Metalicity Energy.
Metalicity Energy means Metalicity Energy Pty Ltd.
Metalicity Shares means the 153,846 Tawana Shares still to be issued to
Metalicity Energy (or its nominee) as consideration under the Metalicity
Agreement.
Mofe Creek Project means Tawana’s rights and interests in the Mofe Creek Iron
Ore Project in Liberia comprising mineral exploration licences MEL 12029 and
MEL 1223/14, together with all associated agreements, statutory licences and
assets including mining information, core and samples, and plant and equipment,
including shares in Tawana Liberia Inc and Kenema-Man Holdings Pty Ltd.
Mount Belches means Mount Belches Pty Ltd.
Official List means the official list of securities that ASX has admitted but not
removed.
Official Quotation means official quotation by ASX in accordance with the ASX
Listing Rules.
Option means an option issued by Tawana in respect of Tawana Shares,
whether vested or unvested.
Option Cancellation Offer has the meaning given in clause 5.
Option Consideration means, in respect of a class of Options held by an
Optionholder, such number of AMAL Shares to be issued to the Optionholder as
consideration payable for the cancellation of those Options (in aggregate), as set
out in each Optionholder Deed, determined in accordance with the following
formula:
C-D
A = B × ( ______ × E)
C
where:
A is the number of AMAL Shares to be issued to the Optionholder in
respect of all of the Options in a class held by that Optionholder;
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B is the number of Options in the class held by the Optionholder;
C means A$0.4568, being the volume weighted average price of Tawana
Shares on ASX for the 5 trading days immediately prior to (and
excluding) the Execution Date;
D means the exercise price of the class of Options held by the Scheme
Participant; and
E means the Exchange Ratio, being 1.10.
Optionholder means each person who is a holder of an Option.
Optionholder Deed means a deed (in the form agreed by AMAL and Tawana,
both acting reasonably) executed by AMAL, Tawana and each Optionholder that
accepts the Option Cancellation Offer, pursuant to which the Optionholder agrees
to the cancellation of each Option held in return for the Option Consideration,
subject to the Scheme becoming Effective, any necessary ASIC relief and/or ASX
waivers being obtained and any prior exercise of the Option.
Permitted Transaction means:
(a) in respect of AMAL, a Capital Raising undertaken, or to be undertaken,
by AMAL as contemplated in clause 12; and
(b) in respect of Tawana:
(i) a Capital Raising undertaken, or to be undertaken, by Tawana
as contemplated in clause 12;
(ii) the Spin-out Transaction; and
(iii) entry into the Proposed Facility,
in each case including all such activities, steps and actions as are reasonably
necessary or convenient in connection with the relevant transaction or would be
reasonably expected to form part of the relevant transaction in the ordinary and
usual course.
PPSR means the register maintained for the purposes of the Personal Property
Securities Act 2009 (Cth).
Proposed Facility means a debt facility with a facility limit of up to $15 million
that is to be made available to Tawana or Lithco. For the avoidance of doubt, this
does not include the issue of any shares, options or other equity securities to the
provider(s) of this debt facility.
Record Date means the fifth Business Day following the Effective Date or such
other date as Tawana and AMAL agree in writing.
Register means the share register of Tawana and Registry has a corresponding
meaning.
Regulator’s Draft means the draft of the Scheme Booklet in a form acceptable to
Tawana which is provided to ASIC for approval pursuant to section 411(2) of the
Corporations Act.
Regulatory Approval means any approval of a Regulatory Authority to the
Transaction or any aspect of it which is necessary or desirable for the
implementation of the Transaction.
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Regulatory Authority means:
(a) ASX, ASIC, JSE and SGX;
(b) the Takeovers Panel;
(c) FIRB;
(d) a government or governmental, semi-governmental or judicial entity or
authority in Australia;
(e) a minister, department, office, commission, delegate, instrumentality,
agency, board, authority or organisation of any government in Australia;
and
(f) any regulatory organisation established under statute in Australia.
Regulatory Review Period means the period from the date on which the
Regulator’s Draft is submitted to ASIC to the date on which ASIC confirms that it
does not intend to make any submissions at the Court hearing on the First Court
Date or otherwise object to the Scheme.
Related Body Corporate has the meaning it has in the Corporations Act.
Relevant Interest has the same meaning as given by the Corporations Act.
Representative means any person acting for or on behalf of a party including
any director, officer, employee, agent, contractor or professional advisor of a
party.
Sale Agent means an entity appointed by AMAL to sell the AMAL Shares that
are attributable to Ineligible Shareholders.
Scheme means the scheme of arrangement under Part 5.1 of the Corporations
Act under which all of the Scheme Shares will be transferred to AMAL,
substantially in the form of Annexure A (or such other form as may be agreed by
the parties, acting reasonably), together with any amendment or modification
made pursuant to section 411(6) of the Corporations Act.
Scheme Booklet means, in respect of the Scheme, the information booklet to be
approved by the Court and despatched to Tawana Shareholders which must:
(a) include the Scheme, an explanatory statement complying with the
requirements of the Corporations Act, notice of meeting and proxy forms;
and
(b) comply with the Corporations Act, Corporations Regulations, applicable
ASIC Regulatory Guides and the ASX Listing Rules.
Scheme Consideration means such number of AMAL Shares in the form of ASX
Consideration Shares or, if a Scheme Participant has made an election as
contemplated in clause 4.2(b), SGX Consideration Shares, as is determined by
applying the Exchange Ratio to the number of Scheme Shares held by a Scheme
Participant at 5.00pm on the Record Date.
Scheme Meeting means the meeting to be convened by the Court at which
Tawana Shareholders will vote on the Scheme.
Scheme Participant means a person registered as a Tawana Shareholder at
5.00pm on the Record Date, other than an Excluded Shareholder.
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Scheme Shares means all Tawana Shares on issue as at 5.00pm on the Record
Date, other than the Excluded Shares.
Second Court Date means the day on which the Court makes an order pursuant
to section 411(4)(b) of the Corporations Act approving the Scheme.
Securities Account means the relevant securities account maintained by a
Depositor with CDP but does not include a securities sub-account maintained
with a Depository Agent.
SGX means Singapore Exchange Securities Trading Limited.
SGX Additional Listing Application means the application by AMAL to the SGX
for the:
(a) AMAL Shares issued as Scheme Consideration;
(b) AMAL Management Shares; and
(c) AMAL Shares issued upon the exercise of AMAL Lender Options,
to be admitted to and listed for quotation on the official list of the Catalist.
SGX Consideration Shares means the AMAL Shares issued as Scheme
Consideration in respect of which a Scheme Participant has made an election
referred to in clause 4.2(b), being AMAL Shares which will be held by a Scheme
Participant as recorded in the Depository Register.
SGX Documents means the AMAL Notice of Meeting, SGX Additional Listing
Application and all other information furnished by AMAL to the SGX in respect of
the Transaction as required to be furnished by the SGX Listing Rules.
SGX Listing Rules means Section B of the SGX Listing Manual: Rules of
Catalist, as amended, modified or supplemented from time to time.
SGX Valuation Report means the report(s) from the Independent Valuer(s)
appointed by AMAL for inclusion in the AMAL Notice of Meeting to value Tawana
in accordance with the SGX Listing Rules.
Specified Event means any change, event, occurrence, matter or circumstance
that:
(a) occurs after the Execution Date;
(b) occurs before the Execution Date but is only discovered, announced or
publicly disclosed after the Execution Date; or
(c) will or is likely to occur after the Execution Date and which has not been
publicly announced prior to the Execution Date.
SpinCo means Cowan Lithium Limited ACN 625 128 770, a wholly-owned
subsidiary of Tawana.
Spin-out Transaction has the meaning given in clause 11.1.
Subsidiary has the meaning it has in the Corporations Act.
Superior Proposal Period means the period commencing on the date a Tawana
Superior Proposal comes into existence and ending on the date that the Tawana
Superior Proposal is withdrawn, terminated, rejected, expires or is otherwise
concluded.
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Takeovers Panel means the review body continuing in existence under section
261 of the Australian Securities and Investments Commission Act 2001 (Cth) and
given powers under Part 6.10 of the Corporations Act.
Tawana Board means the board of directors of Tawana.
Tawana Cash Budget means the Tawana monthly cash budget for the period to
31 December 2018 (excluding cash, cash equivalent and Indebtedness
attributable to Bald Hill Joint Venture activities), as initialled by the parties for
identification purposes only.
Tawana Competing Transaction means any proposal, agreement,
arrangement, reorganisation or transaction which, if entered into or completed,
would mean a person (other than AMAL or its Related Bodies Corporate), either
alone or together with its associates, would:
(a) directly or indirectly, acquire an interest or Relevant Interest in, become
the holder of, or otherwise acquire or have a legal, beneficial or
economic interest in:
(i) 50% or more of the Tawana Shares; or
(ii) all, or a substantial or material part, of the Tawana Group’s
business or assets;
(b) acquire control of Tawana or any of its material Subsidiaries, within the
meaning of section 50AA of the Corporations Act; or
(c) otherwise directly or indirectly acquire, merge with, or acquire a
significant shareholding or economic interest in Tawana or the Tawana
Group’s business or assets,
whether by way of takeover bid, scheme of arrangement, shareholder approved
acquisition, capital reduction or buy-back, sale or purchase of assets, sale or
purchase of shares, joint venture, reverse takeover, dual-listed company structure
or other synthetic merger or other transaction or arrangement, provided always
that the Spin-out Transaction shall not be a Tawana Competing Transaction.
Tawana Employee Option means up to 1,000,000 Options exercisable at $0.50
per Tawana Share exercisable within 3 years from the date of grant, proposed to
be issued to Tawana employees after the Execution Date.
Tawana Director means a director of Tawana.
Tawana Excused Conduct means:
(a) any act or omission of Lithco or its Representatives that is required
under the terms of the Bald Hill JVA, including any act or omission
directed by the management committee established under the Bald Hill
JVA which Lithco or its Representatives are required to comply with
under the terms of the Bald Hill JVA; and
(b) any conduct of AMAL or its Representatives (including AMAL’s
nominees on the management committee established under the Bald Hill
JVA) that is in breach of AMAL’s obligations under the Bald Hill JVA or is
otherwise reasonably likely to be considered inconsistent with good
mining practices in Australia.
Tawana Group means Tawana and its Subsidiaries.
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Tawana Indemnified Parties means Tawana, its officers, employees and
advisers and its Related Bodies Corporate and the officers, employees and
advisers of each of its Related Bodies Corporate.
Tawana Information means all information contained in the Scheme Booklet
other than the AMAL Information and the Independent Expert’s Report.
Tawana Material Adverse Change means a Specified Event which, individually
or when aggregated with other Specified Events of a like kind, results in, or would
be reasonably expected to result in, the value of the net assets of the Tawana
Group (as disclosed in the consolidated balance sheet of Tawana as at 30 June
2017) being reduced by at least A$5 million, but does not include:
(a) any matter, event or circumstance Fairly Disclosed to, or actually known
by, AMAL or its Representatives (other than to the extent that such
matters, events or circumstances are only known by Representatives not
involved with the Transaction) before the Execution Date;
(b) a matter, event or circumstance resulting from Tawana Excused Conduct
or a Claim by AMAL under or in connection with the Bald Hill JVA;
(c) any matter, event or circumstance which impacts AMAL and Lithco, as
joint venturers under the Bald Hill JV, in a similar manner and to a similar
extent;
(d) any matter, event or circumstance arising from changes in law or general
economic, political or regulatory conditions in Australia or that affects or
otherwise has an impact on Australia;
(e) any change in accounting policy required by law;
(f) any change occurring directly or indirectly as a result of any matter,
event or circumstance required by this agreement, the Scheme or the
transactions contemplated by them, including a Permitted Transaction;
(g) any change or disruption to the financial markets of Australia;
(h) any change to currency exchange or commodity market conditions in
Australia, including lithium prices;
(i) an event, change, matter, thing or condition that is reasonably likely to
have resulted from, been caused by or occurred in response to, the
Transaction or its announcement;
(j) any matter, event or circumstance agreed to by AMAL in writing; or
(k) a change resulting directly from a general deterioration in equity markets,
interest rates, exchange rates or credit spreads, that impacts the
Tawana Group and comparable lithium exploration, development or
production companies in a similar manner.
Tawana Prescribed Event means, except:
(a) to the extent Fairly Disclosed to AMAL; or
(b) as expressly contemplated by this agreement or the Scheme, including
Permitted Transactions,
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any of the events listed in Part 1 of Schedule 1 provided that a Tawana
Prescribed Event will not occur where:
(a) Tawana has first consulted with AMAL in relation to the event and AMAL
has approved the proposed event in writing; or
(b) it is caused by or attributable to Tawana Excused Conduct.
Tawana Share means a fully paid ordinary share in the capital of Tawana.
Tawana Shareholder means each person registered in the Register as a holder
of Tawana Shares.
Tawana SGX Information means the information regarding Tawana provided by
Tawana to AMAL in writing for inclusion in the SGX Documents, including:
(a) information about Tawana, its Related Bodies Corporate and businesses
and interests; and
(b) any other information regarding Tawana as is required to be included in
the SGX Documents under all applicable laws and the applicable rules
and policies of SGX (including the SGX Listing Rules) that the parties
agree is “Tawana SGX Information”.
Tawana Superior Proposal means a bona fide Tawana Competing Transaction
which the Tawana Board, acting in good faith, and after receiving written advice
from its external legal and financial advisers, determines is:
(a) reasonably capable of being completed taking into account all aspects of
the Tawana Competing Transaction and any timing considerations,
conditions precedent and the identity of the proponent; and
(b) would, if completed substantially in accordance with its terms, be more
favourable to Tawana Shareholders (as a whole) than the Scheme,
taking into account all terms and conditions of the Tawana Competing
Transaction (including consideration, conditionality, funding, certainty
and timing).
Timetable means the timetable set out in Schedule 3.
Transaction means the acquisition by AMAL of all Tawana Shares through the
implementation of the Scheme and other transactions contemplated by this
agreement, including the listing of the ASX Consideration Shares on the ASX,
other than the Permitted Transactions.
Treasurer means the Treasurer of the Commonwealth of Australia.
1.2 References to certain general terms
Unless the contrary intention appears, a reference in this agreement to:
(a) (variations or replacement) a document (including this agreement)
includes any variation or replacement of it;
(b) (clauses, annexures and schedules) a clause, annexure or schedule is
a reference to a clause in or annexure or schedule to this agreement;
(c) (reference to statutes) a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
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(d) (law) law means common law, principles of equity, and laws made by
parliament (and laws made by parliament include State, Territory and
Commonwealth laws and regulations and other instruments under them,
and consolidations, amendments, re-enactments or replacements of any
of them);
(e) (singular includes plural) the singular includes the plural and vice
versa;
(f) (party) a party means a party to this agreement;
(g) (person) the word “person” includes an individual, a firm, a body
corporate, a partnership, a joint venture, an unincorporated body or
association, or any Regulatory Authority;
(h) (executors, administrators, successors) a particular person includes a
reference to the person’s executors, administrators, successors,
substitutes (including persons taking by novation) and assigns;
(i) (reference to a group of persons) a group of persons or things is a
reference to any two or more of them jointly and to each of them
individually;
(j) (dollars) Australian dollars, dollars, A$ or $ is a reference to the lawful
currency of Australia, and Singapore dollars or S$ is a reference to the
lawful currency of Singapore;
(k) (calculation of time) a period of time dating from a given day or the day
of an act or event, is to be calculated exclusive of that day;
(l) (reference to a day) a day is to be interpreted as the period of time
commencing at midnight and ending 24 hours later;
(m) (accounting terms) an accounting term is a reference to that term as it
is used in accounting standards under the Corporations Act, or, if not
inconsistent with those standards, in accounting principles and practices
generally accepted in Australia;
(n) (meaning not limited) the words “include”, “including”, “for example” or
“such as” when introducing an example, do not limit the meaning of the
words to which the example relates to that example or examples of a
similar kind; and
(o) (time of day) time is a reference to time in Perth, Western Australia
time.
1.3 Next day
If an act under this agreement to be done by a party on or by a given day is done
after 5.30pm on that day, it is taken to be done on the next day.
1.4 Next Business Day
If an event must occur on a stipulated day which is not a Business Day then the
stipulated day will be taken to be the next Business Day.
1.5 Headings
Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this agreement.
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2 Agreement to propose and implement Scheme
2.1 Tawana to propose Scheme
(a) Tawana agrees to propose the Scheme on and subject to the terms and
conditions of this agreement.
(b) AMAL agrees to assist Tawana to propose the Scheme on and subject
to the terms and conditions of this agreement.
2.2 Agreement to implement Transaction
The parties agree to implement the Transaction on the terms and conditions of
this agreement.
3 Conditions Precedent
3.1 Conditions Precedent
Subject to this clause 3, the obligations of AMAL under clause 4.2 are conditional
on the satisfaction (or waiver, if applicable) of each of the Conditions Precedent
contained in Schedule 2 to the extent and in the manner set out in clauses 3.2
and 3.4, and the Scheme will not become Effective unless and until all such
Conditions Precedent are satisfied or waived.
3.2 Benefit of certain Conditions Precedent
A Condition Precedent may only be waived in writing by a party entitled to the
benefit of that Condition Precedent as noted in the table set out in Schedule 2
and will be effective only to the extent specifically set out in that waiver.
A party entitled to waive the breach or non-fulfilment of a Condition Precedent
under this clause 3.2 may do so in its absolute discretion.
The parties acknowledge that the Conditions Precedent set out in items 1(c),
1(d), 2 and 3 of Schedule 2 cannot be waived.
3.3 Waiver of Conditions Precedent
If either Tawana or AMAL waives the breach or non-fulfilment of a Condition
Precedent in accordance with this clause, then:
(a) subject to subclause 3.3(b), that waiver precludes that party from suing
the other for any breach of this agreement arising as a result of the
breach or non-fulfilment of that Condition Precedent or arising from the
same event which gave rise to the breach or non-fulfilment of that
Condition Precedent; but
(b) if the waiver of the Condition Precedent is itself conditional and the other
party:
(i) accepts the condition, the terms of that condition apply
notwithstanding any inconsistency with subclause 3.3(a); or
(ii) does not accept the condition, the Condition Precedent has not
been waived.
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3.4 Reasonable endeavours
Each of Tawana and AMAL agree to use reasonable endeavours to procure that:
(a) each of the Conditions Precedent:
(i) is satisfied as soon as is reasonably practicable after the
Execution Date; and
(ii) continues to be satisfied at all times until the last time that the
relevant clause is to be satisfied (as the case may require); and
(b) there is no occurrence within its control or the control of any of its
Subsidiaries that would prevent the Conditions Precedent being
satisfied.
3.5 FIRB application
(a) AMAL must lodge its application to the Treasurer in relation to the
Condition Precedent in item 1(d) of Schedule 2 no later than 10 Business
Days after execution of this agreement unless otherwise agreed in
writing by Tawana.
(b) AMAL must, prior to providing any written communications to the
Treasurer (or his delegate) or FIRB regarding the Condition Precedent in
item 1(d) of Schedule 2:
(i) consult with Tawana with respect to the content of the
communications; and
(ii) provide Tawana with draft extracts of those parts of the
communications that relate to the Tawana Group, its business or
its assets and make such amendments as Tawana reasonably
requires.
(c) AMAL will provide copies of any written communications sent to or
received from FIRB to Tawana promptly upon despatch or receipt (as the
case may be).
3.6 Regulatory matters
Without limiting clause 3.4 or clause 3.5, each party:
(a) (Regulatory Approvals) must promptly apply for all relevant Regulatory
Approvals and take all steps it is responsible for as part of the approval
process, including responding to requests for information from the
relevant Regulatory Authority at the earliest practicable time;
(b) (representation) subject to the requirements of the relevant Regulatory
Authority, has the right to be represented and make submissions at any
proposed meeting with any Regulatory Authority relating to any
Regulatory Approval; and
(c) (consultation) must consult with the other party in advance in relation to
all communications (whether written or oral, and whether direct or via a
Representative) with any Regulatory Authority relating to any Regulatory
Approval (Communications) and, without limitation:
(i) provide the other party with drafts of any material written
Communications to be sent to a Regulatory Authority and make
such amendments as the other party reasonably requires; and
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(ii) provide copies of any material written Communications sent to
or received from a Regulatory Authority to the other party
promptly upon despatch or receipt (as the case may be),
in each case to the extent it is reasonable to do so.
3.7 Notices in relation to Conditions Precedent
Each party must:
(a) (notice of satisfaction) keep the other party promptly and reasonably
informed of the steps it has taken and of its progress towards satisfaction
of a Condition Precedent and promptly notify the other of satisfaction of a
Condition Precedent and must keep the other informed of any material
development of which it becomes aware that may lead to the breach or
non-fulfilment of a Condition Precedent;
(b) (notice of failure) immediately give written notice to the other party
upon becoming aware of a breach or non-fulfilment of a Condition
Precedent, or of any event which will prevent a Condition Precedent
being satisfied;
(c) (notice of waiver) upon receipt of a notice given under clause 3.7(b),
give written notice to the other party as soon as reasonably practicable
(and in any event before 5.00pm on the day before the Second Court
Date) as to whether or not it waives the breach or non-fulfilment of any
Condition Precedent resulting from the occurrence of that event,
specifying the Condition Precedent in question; and
(d) (certificates) give to:
(i) the other (in draft) by 5.00pm on the day immediately prior to the
Second Court Date; and
(ii) the Court (in final form), on the Second Court Date,
a certificate signed by an Authorised Officer (in respect of the Conditions
Precedent relating to it, other than the Condition Precedent in item 3 of
Schedule 2) whether or not those Conditions Precedent have been
satisfied or waived.
3.8 Effect of waiver or non-fulfilment
A waiver of breach or non-fulfilment in respect of one Condition Precedent does
not constitute:
(a) a waiver of the breach or non-fulfilment of any other Condition Precedent
resulting from the same event; or
(b) a waiver of the breach or non-fulfilment of that Condition Precedent
resulting from any other event.
3.9 Consultation on failure of Conditions Precedent
Subject to clause 3.12, if:
(a) there is a breach or non-fulfilment of a Condition Precedent which is not
waived in accordance with this agreement by the time or date specified
in this agreement for the satisfaction of the Condition Precedent;
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(b) there is an act, failure to act or occurrence which will prevent a Condition
Precedent being satisfied by the time or date specified in this agreement
for the satisfaction of the Condition Precedent (and the breach or non-
fulfilment which would otherwise occur has not already been waived in
accordance with this agreement); or
(c) if the Scheme has not become Effective by the End Date,
then the parties must consult in good faith with a view to determining whether:
(d) the Scheme may proceed by way of alternative means or methods;
(e) to extend the relevant time for satisfaction of the Condition Precedent or
to adjourn or change the date of an application to the Court; or
(f) to extend the End Date.
3.10 Failure to agree
If the parties are unable to reach agreement under clause 3.9 within 5 Business
Days (or any shorter period ending at 5.00pm on the day before the Second
Court Date):
(a) subject to subclause 3.10(b), either party may terminate this agreement
(and such termination will be in accordance with clause 20.1(e)(i)); or
(b) if a Condition Precedent may be waived and exists for the benefit of one
party only, that party only may waive that Condition Precedent or
terminate this agreement (and such termination will be in accordance
with clause 20.1(e)(ii)),
in each case before 8.00am on the Second Court Date. A party will not be
entitled to terminate this agreement pursuant to this clause 3.10 if the relevant
Condition Precedent has not been satisfied or agreement cannot be reached as
a result of:
(c) a breach of this agreement by that party; or
(d) a deliberate act or omission of that party (other than the exercise of a
discretion contemplated in the Condition Precedent).
3.11 Regulatory Approval
A Regulatory Approval, and any approval from the Treasurer (or his delegate) for
the purposes of the Condition Precedent in item 1(d) of Schedule 2, will be
regarded as having been obtained notwithstanding that a condition or conditions
may have been attached to that Regulatory Approval if that condition or those
conditions (as the case may be) are reasonably satisfactory to Tawana and
AMAL.
3.12 Scheme voted down
If the Scheme is not approved by Tawana Shareholders at the Scheme Meeting
by reason only of the non-satisfaction of the Headcount Test, then unless AMAL
agrees otherwise, Tawana must:
(a) apply for an order of the Court contemplated by section 411(4)(a)(ii)(A)
of the Corporations Act to disregard the Headcount Test and seek Court
approval of the Scheme under section 411(4)(b) of the Corporations Act,
notwithstanding that the Headcount Test has not been satisfied; and
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(b) make such submissions to the Court and file such evidence as legal
counsel engaged by Tawana to represent it in Court proceedings related
to the Scheme, in consultation with AMAL, considers is reasonably
required to seek to persuade the Court to exercise its discretion under
section 411(4)(a)(ii)(A) of the Corporations Act to make an order to
disregard the Headcount Test.
4 Outline of Scheme
4.1 Scheme
Subject to clause 3.1 and the terms of this agreement, Tawana must propose a
scheme of arrangement under which on the Implementation Date:
(a) all of the Scheme Shares held by the Scheme Participants will be
transferred to AMAL; and
(b) each Scheme Participant will be entitled to receive the Scheme
Consideration.
4.2 Scheme Consideration
(a) Subject to the terms and conditions of this agreement and the Scheme,
AMAL covenants in favour of Tawana (in its own right and as trustee for
each Scheme Participant) that in consideration of the transfer to AMAL
of each Scheme Share held by a Scheme Participant under the terms of
the Scheme, AMAL will, on the Implementation Date, provide to each
Scheme Participant the Scheme Consideration in accordance with the
terms of this agreement, the Scheme and the Deed Poll.
(b) A Scheme Participant (other than an Ineligible Shareholder) will be
entitled to elect to receive, as consideration for the transfer of its Scheme
Shares to AMAL, SGX Consideration Shares instead of ASX
Consideration Shares, subject to such Scheme Participant providing
AMAL with all necessary details of its Securities Account or Depository
Agent’s securities sub-account for purpose of crediting the SGX
Consideration Shares. In the absence of such an election, each Scheme
Participant (other than an Ineligible Shareholder) will receive ASX
Consideration Shares.
(c) Where the calculation of the number of AMAL Shares to be issued to a
particular Scheme Participant would result in the issue of a fraction of an
AMAL Share, the fractional entitlement will be rounded up to the nearest
whole number of AMAL Shares.
4.3 Undertakings held as trustee
Tawana acknowledges that the undertaking by AMAL in clause 4.2 is given to
Tawana in its own right and in its capacity as trustee for each Scheme
Participant.
4.4 Ineligible Shareholders
(a) AMAL has no obligation under this agreement or the Scheme to issue or
provide, and must not issue or provide, any AMAL Shares under this
agreement or the Scheme to any Ineligible Shareholder and, instead,
AMAL must, on the Implementation Date, issue the AMAL Shares that
would otherwise have been issued to or in respect of the Ineligible
Shareholder to the Sale Agent.
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(b) AMAL will procure that, as soon as reasonably practicable and in any
event not more than 15 Business Days after the Implementation Date,
the Sale Agent:
(i) sells all of the AMAL Shares issued to the Sale Agent pursuant
to clause 4.4(a) in such manner, on such financial market, at
such price and on such other terms as the Sale Agent
determines in good faith; and
(ii) remits to each Ineligible Shareholder the proportion of the net
proceeds of sale (after deducting any applicable brokerage,
stamp duty and other selling costs, taxes and charges) to which
that Ineligible Shareholder is entitled.
4.5 Consideration shares
AMAL covenants in favour of Tawana (in its own right and on behalf of the
Scheme Participants) that:
(a) the AMAL Shares to be issued pursuant to the Scheme are duly and
validly authorised and are of the same class of AMAL Shares currently
on issue and will rank equally in all respects with all existing AMAL
Shares on issue;
(b) each AMAL Share issued pursuant to the Scheme will be validly issued,
fully paid and free from any Encumbrance or other third party rights; and
(c) AMAL will ensure that:
(i) all AMAL Shares issued as Scheme Consideration are approved
for listing on the official list of the Catalist and trading on SGX
and that trading in the SGX Consideration Shares commences
on the SGX on the first trading day of SGX following the
Implementation Date (or such later date as the SGX requires);
and
(ii) ASX gives approval for the Official Quotation of all AMAL Shares
and that trading in the ASX Consideration Shares commences
on the ASX on the first trading day on the ASX following the
Implementation Date (or such later date as ASX requires).
5 Options
5.1 Optionholder offers
Tawana must make offers to each Optionholder as soon as reasonably
practicable after the Execution Date but in any event prior to the First Court Date
(Option Cancellation Offer) and use its best endeavours to ensure that each
Optionholder either:
(a) exercises their Options, in which event Tawana will ensure that the
relevant Tawana Shares are issued prior to 5.00pm on the Record Date
so as to be Scheme Shares; or
(b) enters into an Optionholder Deed.
5.2 Option Consideration
AMAL covenants in favour of Tawana (in its own right and as trustee for each
Optionholder) that in consideration of the cancellation of each Option held by an
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Optionholder, AMAL will, on the Implementation Date, issue to each Optionholder
the AMAL Shares which constitute the Option Consideration in accordance with
the terms of each Optionholder Deed.
5.3 ASX waiver
As soon as practicable after the Execution Date (and in any event by no later
than 5.00pm on the Business Day prior to the First Court Date), Tawana will
apply for, and use its best endeavours to procure:
(a) a waiver from ASX Listing Rule 6.23.2 to enable the Options to be
cancelled in consideration for the Option Consideration without obtaining
approval from Tawana Shareholders; and
(b) any other ASX waiver necessary to give effect to the treatment of the
Options as contemplated by this clause 5.
5.4 ASIC relief
As soon as practicable after the Execution Date (and in any event by no later
than 5.00pm on the Business Day prior to the First Court Date), AMAL will apply
for, and use its best endeavours to procure, ASIC relief to allow the on-sale of
AMAL Shares that constitute the Option Consideration without disclosure.
6 Co-operation and timing
6.1 General obligations
Tawana and AMAL must each:
(a) use all reasonable endeavours and commit all reasonably necessary
resources (including reasonably necessary management and corporate
relations resources and the resources of external advisers); and
(b) procure that its officers and advisers work in good faith and in a timely
and co-operative fashion with the other party (including by attending
such meetings and by providing such information as in each case may
reasonably be required),
to comply with their respective obligations in this agreement to produce the
Scheme Booklet and the SGX Documents and to implement the Scheme as soon
as reasonably practicable and substantially in accordance with the Timetable.
6.2 Access to people and information
Between the Execution Date and the earlier of the Implementation Date and the
date this agreement is terminated, each party (Access Provider) must promptly
provide the other party (Accessing Party) and its officers and advisers with
reasonable access to the Access Provider’s officers and advisers and
documents, records, and other information (subject to any existing confidentiality
obligations owed to third parties, or applicable privacy laws) reasonably
requested by them, which the Accessing Party reasonably requires for the
purposes of:
(a) applying for and pursuing all relevant Regulatory Approvals (including for
the purposes of the Condition Precedent in item 1(c) of Schedule 2) and
any approval from the Treasurer (or his delegate) for the purposes of the
Condition Precedent in item 1(d) of Schedule 2;
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(b) understanding the financial position of the Access Provider or the status
of a Permitted Transaction;
(c) implementing the Scheme; and
(d) planning the transition of the Tawana Group and other matters relating to
the conduct of the Tawana Group following the Implementation Date.
6.3 Right to separate representation
AMAL is entitled to separate representation at all Court proceedings relating to
the Transaction. Nothing in this agreement is to be taken to give Tawana any
right or power to make or give undertakings to the Court for or on behalf of
AMAL.
7 Implementation obligations of the parties
7.1 Tawana's obligations
Tawana must comply with the obligations of Tawana set out in Schedule 4 and
take all reasonable steps to implement the Scheme as soon as is reasonably
practicable having regard to the Timetable and in any event prior to the End
Date.
7.2 AMAL’s obligations
AMAL must comply with the obligations of AMAL set out in Schedule 5 and take
all reasonable steps to assist Tawana to implement the Scheme as soon as
reasonably practicable having regard to the Timetable and in any event prior to
the End Date.
8 AMAL Shareholder Resolutions
8.1 AMAL’s obligations
AMAL must take all steps reasonably necessary to obtain the approval of the
AMAL Shareholder Resolutions by the requisite majority as soon as is
reasonably practicable after the Execution Date and, in any event, in accordance
with the Timetable, and in particular AMAL must:
(a) promptly make submissions to the SGX requesting that the Scheme and
associated transactions be treated as a “major transaction” rather than a
“very substantial acquisition”, and seek any and all such waivers or
exercises of discretion on the part of SGX as may reasonably be
obtained with a view to seeking approval of the AMAL Shareholder
Resolutions as soon as reasonably practicable;
(b) prepare the AMAL Notice of Meeting in accordance with the
requirements of all applicable laws and the applicable rules and policies
of SGX (including the SGX Listing Rules), and on each occasion that a
draft is submitted to SGX for review or approval, AMAL must:
(i) provide Tawana and its advisers with a reasonable opportunity
to provide suggested amendments to that draft prior to
submission; and
(ii) consider in good faith such suggested amendments and, to the
extent that any such suggested amendments relate to
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information regarding Tawana and its Subsidiaries,
accommodate such suggested amendments;
(c) promptly appoint an independent valuer(s) in accordance with the SGX
Listing Rules (Independent Valuer) to prepare the SGX Valuation
Report(s) and provide any assistance and information reasonably
requested by the Independent Valuer(s) to enable it to prepare the SGX
Valuation Report for inclusion in the AMAL Shareholders’ Circular;
(d) on receipt, provide Tawana with a copy of any draft or final report(s)
received from the Independent Valuer(s);
(e) despatch the AMAL Notice of Meeting to the AMAL Shareholders and
convene and hold the meeting at which the AMAL Shareholder
Resolutions are proposed;
(f) if the AMAL Shareholder Resolutions are passed by the requisite
majorities, do all such things as are required to give full effect to those
resolutions; and
(g) until the Implementation Date, promptly inform Tawana if it becomes
aware that the AMAL Notice of Meeting contains any statement which is
false or misleading whether in content or by omission.
8.2 Tawana’s obligations
Tawana must take all steps reasonably necessary to assist AMAL to obtain the
approval of the AMAL Shareholder Resolutions by the requisite majority as soon
as is reasonably practicable after the Execution Date and, in any event, in
accordance with the Timetable.
8.3 AMAL Board recommendation
The Announcement and the AMAL Notice of Meeting must state that each
member of the AMAL Board recommends that AMAL Shareholders vote in favour
of the AMAL Shareholder Resolutions and that each member of the AMAL Board
intends to vote any AMAL Shares in which they have a Relevant Interest in
favour of the AMAL Shareholder Resolutions, in each case subject only to:
(a) the absence of an AMAL Superior Proposal; and
(b) receipt of a SGX Valuation Report(s) supporting the Transaction.
8.4 SGX approval
(a) The parties acknowledge that:
(i) the Scheme is conditional on approval of SGX to the despatch of
the AMAL Shareholders’ Circular and approval of SGX to the
Transaction; and
(ii) this agreement has been prepared on the basis that the Scheme
and associated transactions constitute a “very substantial
acquisition” for AMAL as contemplated in the SGX Listing Rules.
(b) If the SGX determines otherwise or requires additional compliance, the
parties will amend this agreement to accommodate SGX’s determination
by agreeing such changes as are reasonably necessary in the
circumstances, including revisions to the Timetable.
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9 Scheme Booklet
9.1 Preparation
Without limiting clauses 7.1 or 7.2:
(a) (preparation) Tawana is generally responsible for the preparation of the
Scheme Booklet but will provide drafts to and consult with AMAL in
accordance with clause 9.2; and
(b) (compliance) without limiting clause 9.3, Tawana must take all
necessary steps to endeavour to ensure that the Scheme Booklet:
(i) complies with the requirements of:
(A) the Corporations Act and the Corporations Regulations;
(B) applicable ASIC Regulatory Guides; and
(C) the ASX Listing Rules; and
(ii) is not, having regard to applicable disclosure requirements,
misleading or deceptive in any material respect (including
because of any material omission).
9.2 Content of the Scheme Booklet
Tawana must:
(a) (consult AMAL):
(i) provide to AMAL drafts of the Scheme Booklet for the purpose of
enabling AMAL to review and comment on those draft
documents;
(ii) take all comments made by AMAL into account acting
reasonably and in good faith when producing a revised draft of
the Scheme Booklet; and
(iii) provide to AMAL a revised draft of the Scheme Booklet within a
reasonable time before the Regulator’s Draft is finalised and to
enable AMAL to review the Regulator’s Draft at least 5 Business
Days before its submission;
(b) (amend the Scheme Booklet) implement such changes to those parts
of the Scheme Booklet exclusively relating to AMAL which are provided
in accordance with clause 9.2(a) as reasonably requested by AMAL and
prior to finalising the Regulator’s Draft;
(c) (Regulatory Review Period) during the Regulatory Review Period,
promptly provide to AMAL, and include in a revised draft of the Scheme
Booklet, any new information not included in the Regulator’s Draft which
is required by the Corporations Act, Corporations Regulations, applicable
ASIC Regulatory Guides or the ASX Listing Rules to be included in the
Scheme Booklet;
(d) (ASIC review) keep AMAL informed of any matters raised by ASIC in
relation to the Scheme Booklet and provide AMAL with copies of material
correspondence received from ASIC in respect of the Scheme as soon
as practicable following receipt, and use all reasonable endeavours, in
co-operation with AMAL, to resolve any such matters;
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(e) (AMAL Information) obtain approval from AMAL for the form and
context in which the AMAL Information appears in the Scheme Booklet;
and
(f) (Responsibility statement) include in the Scheme Booklet a
responsibility statement to the effect that:
(i) AMAL is responsible for AMAL Information contained in the
Scheme Booklet (and no other part of the Scheme Booklet); and
(ii) Tawana is responsible for the content of the Scheme Booklet
other than, to the maximum extent permitted by law, the AMAL
Information and the Independent Expert's Report.
9.3 AMAL Information
AMAL:
(a) must consult with Tawana as to the content of the AMAL Information;
(b) consents to the inclusion of the AMAL Information in the Scheme Booklet
in a form acceptable to AMAL acting reasonably;
(c) must take all necessary steps to ensure that the AMAL Information:
(i) complies with the requirements of:
(A) the Corporations Act and the Corporations Regulations;
(B) applicable ASIC Regulatory Guides; and
(C) the ASX Listing Rules and SGX Listing Rules; and
(ii) is not, having regard to applicable disclosure requirements,
misleading or deceptive in any material respect (including
because of any material omission); and
(d) acknowledges that:
(i) Tawana will not verify or edit that information in the Scheme
Booklet; and
(ii) the Scheme Booklet will state that AMAL is responsible for the
AMAL Information (and no other part of the Scheme Booklet).
9.4 Disagreement on content
If AMAL and Tawana disagree on the form or content of the Scheme Booklet,
they must act reasonably and consult in good faith to try to settle an agreed form
of the Scheme Booklet. If complete agreement is not reached after a reasonable
period of consultation, then:
(a) if the disagreement relates to the form or content of the AMAL
Information contained in the Scheme Booklet, Tawana will, acting in
good faith, make such amendments as AMAL reasonably requires; and
(b) if the disagreement relates to the form or content of any other part of the
Scheme Booklet, the Tawana Board will, acting in good faith, decide the
final form or content of the disputed part of the Scheme Booklet.
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9.5 Verification
Each party must undertake appropriate verification processes for the information
supplied by that party for the Scheme Booklet.
10 Conduct of business
10.1 Overview
From the Execution Date up to and including the Implementation Date, each
party must (and must ensure that its Related Bodies Corporate) conduct their
businesses:
(a) in the ordinary and proper course and in all material respects in
accordance with applicable laws; and
(b) in substantially the same manner and at the same locations as
previously conducted.
10.2 Specific obligations
Without limiting clause 10.1 and other than with the prior approval of the other
party (which approval must not be unreasonably withheld or delayed) or as
required by this agreement, each party must (and must ensure that its Related
Bodies Corporate), during the period contemplated by clause 10.1, use all
reasonable endeavours to:
(a) (business and assets) maintain the condition of its business and assets
materially in the manner maintained prior to the Execution Date,
including maintaining at least its current level of insurance over its
business and assets;
(b) (officers and employees) keep available the services of its current
officers and employees;
(c) (relationships) maintain and preserve its relationships and contracts
with customers, suppliers, licensors, licensees, joint venturers and others
with whom it has business dealings;
(d) (Material Contracts) comply in all material respects with all Material
Contracts to which a member of the Tawana Group or AMAL (as
applicable) is a party;
(e) (Information) keep the other party informed of the conduct of the
businesses of the Tawana Group or AMAL (as applicable) by providing,
in a timely manner, the other party with monthly updates on operational
and financial performance of the Tawana Group or AMAL (as
applicable); and
(f) (budget):
(i) in respect of Tawana (and ignoring movements in cash, cash
equivalents and Indebtedness attributable to Bald Hill Joint
Venture activities), not materially depart from the Tawana Cash
Budget; and
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(ii) in respect of AMAL (and ignoring movements in cash, cash
equivalents and Indebtedness attributable to Bald Hill Joint
Venture activities), not materially depart from the AMAL Cash
Budget.
10.3 Prohibited actions
Other than with the prior approval of the other party (not to be unreasonably
withheld) or as contemplated or required by this agreement, each party must not,
during the period referred to in clause 10.1:
(a) (no new securities) issue any new Tawana Shares (other than the
Metalicity Shares or any Tawana Share issued upon exercise of a
Tawana Employee Option) or AMAL Shares (other than the AMAL
Management Shares or AMAL Lender Options) (as applicable) or other
equity securities (other than the Tawana Employee Options or upon
exercise of an option granted prior to the Execution Date);
(b) (Material Contracts) enter into or terminate a Material Contract (other
than the Proposed Facility);
(c) (Restrictions) enter (or cause a Subsidiary of Tawana to enter) into any
agreement or arrangement with a third party in relation to the business of
the Tawana Group that would, or would purport to, restrict or restrain the
ability of AMAL following the lmplementation Date to operate in any line
of business material to AMAL or in any geographic region;
(d) (employment agreements) increase the remuneration of or pay any
bonus (other than in accordance with existing arrangements and in the
ordinary course) or issue any securities or options to, or otherwise vary
the employment agreements with, any of its directors or employees
(other than any Tawana Employee Options);
(e) (accelerate rights) accelerate the rights of any of its directors or
employees to benefits of any kind;
(f) (termination payments) pay a director, executive or employee a
termination payment, other than as provided for in an existing
employment contract in place as at the Execution Date and a copy of
which has previously been provided to the other party;
(g) (financial arrangements) amend in any material respect any
arrangement with its financial advisers in respect of the transactions
contemplated by this agreement;
(h) (dividends) announce, declare, distribute or pay any dividends bonus or
share of its profits or assets or retained earnings or reserves or agree to
return any capital or announcing any intention to do any of the above;
(i) (Prescribed Events) take any action which is, or would be reasonably
expected to give rise to, a Tawana Prescribed Event or an AMAL
Prescribed Event (as applicable); or
(j) (agreement) agree to do any of the matters set out above.
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10.4 Exceptions to conduct of business restrictions
(a) Nothing in clause 10 restricts the ability of a party to take any action:
(i) expressly required or permitted by this agreement or the
Scheme (including clause 5), including any Permitted
Transaction;
(ii) approved in writing by the other party;
(iii) which has been Fairly Disclosed to the other party or its
Representatives before the Execution Date as being an action
that the party may carry out between (and including) the
Execution Date and the Implementation Date;
(iv) where applicable, to reasonably and prudently respond to an
emergency or disaster (including a situation giving rise to a risk
of personal injury or damage to property);
(v) which is necessary for the party (or its Subsidiaries) to meet its
legal obligations or contractual obligations existing prior to the
Execution Date; or
(vi) which is caused by or attributable to:
(A) in the case of action or conduct by AMAL, AMAL
Excused Conduct; and
(B) in the case of action or conduct by Tawana, Tawana
Excused Conduct.
(b) A party must not unreasonably withhold or delay any approval sought
under clause 10.4(a)(ii).
11 Spin-out Transaction
11.1 Spin-out Transaction
(a) The parties acknowledge that:
(i) on 22 March 2018 Tawana announced its intention to undertake
a capital reduction and distribution pursuant to Part 2J.1 of the
Corporations Act, which will include the reduction of the issued
share capital of Tawana, without cancelling any shares, by an
amount equal to the market value (as assessed by the Tawana
Board) of 85% of all the fully paid ordinary shares in the capital
of SpinCo less a demerger dividend (if any). This will be
satisfied by way of a pro rata distribution in-specie of 85% of the
shares in SpinCo (Spin-out Transaction), with a view to
conferring on Tawana Shareholders 85% of the value of the
Mofe Creek Project and the Cowan Project;
(ii) the Scheme is not conditional on completion of the Spin-out
Transaction, which will occur (or not occur, as the case may be)
independently of the Scheme becoming Effective; and
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(iii) the documentation giving effect to the Spin-out Transaction shall
be drafted to ensure consistency with the following principles:
(A) SpinCo will have:
(aa) the entire economic and commercial benefit of
the Mofe Creek Project and the Cowan Project;
and
(ab) the entire economic and commercial risks and
liabilities (including any duties and tax
associated with the Spin-out Transaction) of
associated with the Mofe Creek Project and the
Cowan Project as if SpinCo had owned and
operated the Mofe Creek Project and the
Cowan Project at all relevant times,
subject to Tawana retaining 15% of the fully paid
ordinary shares in SpinCo;
(B) following completion of the Spin-out Transaction,
SpinCo will not have any rights (including any right to
make a Claim) against any member of the Tawana
Group other than rights to give effect to the transfer of
the exploration licenses associated with the Mofe Creek
Project and the Cowan Project; and
(C) the Tawana Group will have:
(aa) none of the entire economic and commercial
benefit of the Mofe Creek Project and the
Cowan Project; and
(ab) none of the economic and commercial risks and
liabilities of associated with the Mofe Creek
Project and the Cowan Project,
other than Tawana retaining 15% of the fully paid
ordinary shares in SpinCo; and
(iv) Tawana must (prior to execution) provide AMAL with a copy of
all agreements between Tawana and SpinCo to be entered into
in connection with the Spin-out Transaction and must:
(A) provide AMAL and its advisers with not less than 24
hours to review such agreements; and
(B) consider in good faith any suggested amendments to
such agreements to the extent that such amendments
are required in order to comply with clause 11.1(a)(iii).
(b) Tawana must obtain AMAL's prior written consent (such consent must
not be unreasonably withheld or delayed) if, in connection with the Spin-
out Transaction, any member of the Tawana Group:
(i) provides any representation or warranty or incurs any obligation
to SpinCo that continues post Spin-out Transaction, other than:
(A) an obligation relating to transitional services paid for by
SpinCo to a member of the Tawana Group which is on
arm's length terms; or
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(B) which is consistent with the principles in
clause 11.1(a)(iii); or
(ii) provides an indemnity to SpinCo, other than where such
indemnity is mutual between SpinCo and a member of the
Tawana Group so as to support and give effect to the principles
specified in clause 11.1(a)(iii).
11.2 No adjustment to Exchange Ratio etc
Nothing done by Tawana in connection the Spin-out Transaction, including:
(a) incorporating or procuring the incorporation of SpinCo, with a $750,000
equity subscription from Tawana;
(b) procuring the transfer to Tawana Liberia Inc of all of the assets and
liabilities associated with the Mofe Creek Project (to the extent that any
such assets or liabilities are not already held by Tawana Liberia Inc);
(c) procuring the transfer to Mount Belches of all of the assets and liabilities
associated with the Cowan Project (to the extent that any such assets or
liabilities are not already held by Mount Belches);
(d) transferring to SpinCo all of the shares in the capital of each of Mount
Belches, Tawana Liberia Inc and/or Kenema-Man Holdings Liberia Pty
Ltd and/or Rakana Consolidated Mines Pty Ltd;
(e) amending the constitutions of Mount Belches, Tawana Liberia Inc or
Kenema-Man Holdings Liberia Pty Ltd or their respective Subsidiaries;
(f) appointing and removing directors and officers of Mount Belches,
Tawana Liberia Inc or Kenema-Man Holdings Liberia Pty Ltd or their
respective Subsidiaries;
(g) dividing the share capital of SpinCo;
(h) preparing a notice of meeting (and other necessary documentation
including, if required, a short-form prospectus) seeking the approval of
Tawana Shareholders for all necessary aspects of the Spin-out
Transaction;
(i) applying for a taxation class ruling from the Australian Taxation Office to
confirm the taxation implications for Tawana Shareholders; and
(j) undertaking a pro rata distribution in-specie to Tawana Shareholders of
85% of the shares in SpinCo,
will:
(k) result in any adjustment to, or otherwise impact, the Exchange Ratio;
(l) constitute a breach by Tawana of any provision of this agreement
(including clause 18.1); nor
(m) constitute a Tawana Prescribed Event or a Tawana Material Adverse
Change.
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12 Interim funding
12.1 Capital Raisings
(a) Each of Tawana and AMAL acknowledges that promptly following
execution of this agreement:
(i) Tawana intends to raise:
(A) $20,000,000 in equity capital by way of a fully
underwritten placement of Tawana Shares; and
(B) up to $5,000,000 in equity capital by way of a non-
underwritten placement of Tawana Shares, conditional
upon completion of the placement contemplated in
clause 12.1(a)(ii)(B) (which condition may be waived by
Tawana at any time following SGX having made a
determination of the classification of the Scheme and
associated transactions for the purposes of Rule 1015
of the SGX Listing Rules); and
(ii) AMAL intends to raise:
(A) $25,000,000 in equity capital by way of a fully
underwritten placement of AMAL Shares; and
(B) up to $7,800,000 in equity capital by way of a non-
underwritten placement of AMAL Shares, conditional on
the approval of AMAL Shareholders,
in each case to sophisticated and institutional investors in accordance
with applicable laws and regulations (each a Capital Raising).
(b) Each party will use its best endeavours to complete its respective Capital
Raising(s):
(i) at the best available price with a view to issuing the fewest
possible number of Tawana Shares or AMAL Shares (as the
case may be); and
(ii) as soon as possible following the Execution Date, with a view to
jointly announcing the results of the Capital Raisings and re-
commencing trading on their respective markets in accordance
with the timetable in Schedule 3.
(c) Each party acknowledges their mutual interest in the successful outcome
of the Capital Raising undertaken by the other party, and will act in good
faith and provide all such support as is reasonably requested in order to
successfully compete the Capital Raisings, including by taking steps to
encourage demand for equity to be allocated across Tawana’s Capital
Raising and AMAL’s Capital Raising at consistent discounts acceptable
to both parties.
(d) If, for whatever reason, and notwithstanding the discharge of the parties’
obligations under clause 12.1(c), the Capital Raisings:
(i) are not completed in accordance with the parameters
contemplated in the underwriting arrangements executed on or
about the Execution Date; or
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(ii) are completed in a manner or to an extent that is inconsistent
with the principles or assumptions applied in determining the
Exchange Ratio (as at immediately prior to the Execution Date),
the parties will negotiate in good faith to determine an adjustment to the
Exchange Ratio that is consistent with the principles and assumptions
applied in determining the Exchange Ratio and that appropriately reflects
the relativities of the Capital Raisings that were completed. To avoid
doubt, there will be no adjustment to the Exchange Ratio if any approval
of AMAL Shareholders (as contemplated in clause 12.2) is not obtained.
12.2 AMAL's obligation
In respect of that portion of the AMAL Capital Raising contemplated in
clause 12.1(a)(ii)(B), AMAL must take all steps reasonably necessary to obtain
the approval of AMAL Shareholders by the requisite majority as soon as is
reasonably practicable after announcement of the results of the AMAL Capital
Raising, and in particular AMAL must:
(a) prepare a notice of meeting in accordance with the requirements of all
applicable laws and the applicable rules and policies of SGX (including
the SGX Listing Rules); and
(b) despatch the notice of meeting to AMAL Shareholders and convene and
hold the meeting to approve the issue of relevant number of AMAL
Shares relating to the portion of the AMAL Capital Raising requiring
shareholder approval.
12.3 Future capital requirements
(a) If, prior to the Implementation Date, either party requires additional debt
or equity capital (in addition to the equity capital contemplated in
clauses 12.1 and 12.2 and, in respect of Tawana, any debt from time to
time raised in connection with the Proposed Facility) (Additional
Capital), the parties will discuss in good faith the sourcing of the
Additional Capital in a manner and from sources that will maximise the
prospects of each party sourcing its pro rata share of the Additional
Capital such that the principles applied in agreeing the Exchange Ratio
(immediately prior to the Execution Date) are kept intact and no
adjustment to the Exchange Ratio is necessitated by the capital
raising(s).
(b) If, despite the parties’ respective best efforts, it is not possible to source
the Additional Capital in the pro rata manner contemplated in
clause 12.3(a), the parties will negotiate in good faith to determine an
adjustment to the Exchange Ratio that is consistent with the principles
applied in determining the Exchange Ratio (immediately prior to the
Execution Date) and that appropriately reflects the relativities of the
sourcing of the Additional Capital.
12.4 Proposed Facility
(a) AMAL acknowledges that Tawana or Lithco may require AMAL’s consent
to create or permit the creation of an Encumbrance granted (or to be
granted) by Tawana or Lithco to secure obligations under the Proposed
Facility.
(b) If requested by Tawana or Lithco, AMAL must not unreasonably withhold
or delay giving its consent to the creation of any Encumbrance granted
(or to be granted) by Tawana or Lithco to secure obligations under the
Proposed Facility.
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13 Corporate matters
13.1 AMAL Board composition
Subject to receipt of applicable regulatory approvals, provision of consents to act
from the proposed directors and AMAL having in place insurance and indemnity
arrangements reasonably acceptable to the proposed directors, AMAL will do all
things necessary to procure that, on and from the Implementation Date, the
AMAL Board is composed as follows:
(a) Mark Turner (Non-executive Chairperson);
(b) Mark Calderwood (Tawana nominee);
(c) Robert Vassie (Tawana nominee);
(d) Vicki Xie (Tawana nominee);
(e) a nominee of Burwill Holdings Limited (in consultation with AMAL)
(AMAL nominee);
(f) Joshua Ong (AMAL nominee); and
(g) in consultation with Tawana, a person nominated by AMAL with
significant mining experience who is a resident of Singapore (AMAL
nominee),
or such other 3 nominees of AMAL and 3 nominees of Tawana acceptable to the
other party, acting reasonably.
On and from the Implementation Date, AMAL will appoint Mark Calderwood as
Managing Director and Chief Executive Officer on terms no less favourable than
his employment arrangements as at the Execution Date.
13.2 Tawana Board composition
Subject to receipt of applicable regulatory approvals and subject to AMAL having
provided the Scheme Consideration in accordance with clause 4.2, on the
Implementation Date the parties will cause the Tawana Board to be reconstituted
so as to align with the AMAL Board composition, or as otherwise agreed between
the parties.
14 Releases
14.1 Tawana and Tawana Indemnified Parties
(a) AMAL releases its rights, and agrees with Tawana that it will not make a
Claim, against any Tawana Indemnified Party (other than Tawana or its
Related Bodies Corporate) as at the Execution Date and from time to
time in connection with:
(i) any breach of any representations and warranties of Tawana or
any other member of the Tawana Group in this agreement; or
(ii) any disclosures containing any statement which is false or
misleading whether in content or by omission,
whether current or future, known or unknown, arising at common law, in
equity, under statute or otherwise, except where the Tawana Indemnified
Party has not acted in good faith or has engaged in wilful misconduct or
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fraud. For the avoidance of doubt, nothing in this clause 14.1(a) limits
AMAL’s rights in clause 18.2 or its rights to terminate this agreement
under clause 20.1.
(b) This clause 14.1 is subject to any Corporations Act restriction and will be
read down accordingly.
(c) Tawana receives and holds the benefit of this clause 14.1 to the extent it
relates to each Tawana Indemnified Party as trustee for each of them.
14.2 AMAL and AMAL Indemnified Parties
(a) Tawana releases its rights, and agrees with AMAL that it will not make a
Claim, against any AMAL Indemnified Party (other than AMAL or its
Related Bodies Corporate) as at the Execution Date and from time to
time in connection with:
(i) any breach of any representations and warranties of AMAL in
this agreement; or
(ii) any disclosures containing any statement which is false or
misleading whether in content or by omission,
whether current or future, known or unknown, arising at common law, in
equity, under statute or otherwise, except where the AMAL Indemnified
Party has not acted in good faith or has engaged in wilful misconduct or
fraud. For the avoidance of doubt, nothing in this clause 14.2(a) limits
Tawana’s rights in clause 18.6 or its rights to terminate this agreement
under clause 20.1.
(b) This clause 14.2 is subject to any Corporations Act restriction and will be
read down accordingly.
(c) AMAL receives and holds the benefit of this clause 14.2 to the extent it
relates to each AMAL Indemnified Party as trustee for each of them.
14.3 Deeds of access, indemnity and insurance for Tawana
(a) Subject to the Scheme becoming Effective and the Transaction
completing, AMAL must procure that Tawana and each member of the
Tawana Group preserve the indemnities and other rights under the
deeds of indemnity access and insurance made by them in favour of
their respective directors and officers from time to time and, in particular,
must not take any action which would prejudice or adversely affect any
directors’ and officers’ run-off insurance cover taken out prior to the
Implementation Date.
(b) AMAL acknowledges that, notwithstanding any other provision of this
agreement, Tawana may, prior to the Implementation Date, enter into a
run-off insurance policy in respect of any Tawana Group directors and
officers for a 7 year period from their respective retirement dates and
that any actions to facilitate that insurance or in connection therewith
(including paying any amounts to ensure such maintenance upfront) will
not be a Tawana Prescribed Event or breach any provision of this
agreement, provided that Tawana has acted reasonably and in good
faith and has consulted with AMAL in respect of the entry into any such
policy.
(c) The undertakings contained in this clause 14.3 are subject to any
restriction under the Corporations Act or any other applicable legislation
and will be read down accordingly. Tawana receives and holds the
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benefit of this clause 14.3, to the extent it relates to the directors and
officers of Tawana and other members of the Tawana Group, as trustee
for them.
14.4 Insurance for AMAL
(a) Tawana acknowledges that, notwithstanding any other provision of this
agreement, AMAL may, prior to the Implementation Date, enter into a
run-off insurance policy in respect of any AMAL Group directors and
officers for a 7 year period from their respective retirement dates and
that any actions to facilitate that insurance or in connection therewith
(including paying any amounts to ensure such maintenance upfront) will
not be a AMAL Prescribed Event or breach of any provision of this
agreement, provided that AMAL has acted reasonably and in good faith
and has consulted with Tawana in respect of the entry into any such
policy.
(b) The undertakings contained in this clause 14.4 are subject to any
restriction under the Corporations Act or any other applicable legislation
and will be read down accordingly. AMAL receives and holds the benefit
of this clause 14.4, to the extent it relates to the directors and officers of
AMAL and other members of the AMAL Group, as trustee for them.
14.5 Bald Hill Manager Claims
(a) If the Scheme has not become Effective and this agreement is
terminated in circumstances where AMAL is required to pay to Tawana
the Break Fee in accordance with clause 17.2, then, with effect on and
from the date of termination of this agreement, AMAL agrees:
(i) that it has no further rights against, and releases and forever
discharges, each Tawana Indemnified Party (including, for the
avoidance of doubt, Lithco both in its capacity as manager under
the Bald Hill JVA and as participant in the Bald Hill Joint Venture
contemplated in the Bald Hill JVA) from all Bald Hill Manager
Claims;
(ii) that any Tawana Indemnified Party may plead this clause to bar
any Bald Hill Manager Claim brought by AMAL; and
(iii) not to commence or maintain any Bald Hill Manager Claim
against any Tawana Indemnified Party,
other than for any Claim in respect of fraud against a Tawana
Indemnified Party.
(b) The parties intend this clause 14.5 to confer a benefit on each Tawana
Indemnified Party, including Lithco, and each Tawana Indemnified Party
(including Lithco) shall be entitled to the benefit of this clause 14.5,
notwithstanding that they may not be parties to this agreement. Tawana
receives and holds the benefit of this clause 14.5, to the extent it relates
to each Tawana Indemnified Party as trustee for each of them.
(c) This clause 14.5 survives termination of this agreement.
(d) For the purposes of this clause 14.5, “Bald Hill Manager Claim” means
any Claim (including any threatened Claim) under or in connection with
the Bald Hill JVA, which AMAL has or, but for clause 14.5(a) would have
had or may in the future have had, against a Tawana Indemnified Party
which:
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(i) relates in any way to the conduct or performance of Lithco as
manager of the Bald Hill Joint Venture, including any allegation
of breach of the Bald Hill JVA or any duties owed by Lithco in
connection with the Bald Hill Joint Venture;
(ii) is attributable to or was incurred or relates to the period before
the Execution Date; and
(iii) the circumstances giving rise to the relevant Claim were known
to AMAL prior to the Execution Date.
14.6 AMAL JVA Claims
(a) If the Scheme has not become Effective and this agreement is
terminated in circumstances where Tawana is required to pay to AMAL
the Break Fee in accordance with clause 16.2, then, with effect on and
from the date of termination of this agreement, Tawana agrees:
(i) that it has no further rights against, and releases and forever
discharges, each AMAL Indemnified Party from all AMAL JVA
Claims;
(ii) that any AMAL Indemnified Party may plead this clause to bar
any AMAL JVA Claim brought by Tawana; and
(iii) not to commence or maintain any AMAL JVA Claim against any
AMAL Indemnified Party,
other than:
(iv) any Cash Call Claim; or
(v) for any Claim in respect of fraud against a AMAL Indemnified
Party.
(b) The parties intend this clause 14.6 to confer a benefit on each AMAL
Indemnified Party and each AMAL Indemnified Party shall be entitled to
the benefit of this clause 14.6, notwithstanding that they may not be
parties to this agreement. AMAL receives and holds the benefit of this
clause 14.6, to the extent it relates to each AMAL Indemnified Party as
trustee for each of them.
(c) This clause 14.6 survives termination of this agreement.
(d) For the purposes of this clause 14.6:
“AMAL JVA Claim” means any Claim (including any threatened Claim)
under or in connection with the Bald Hill JVA, which Tawana has or, but
for clause 14.6(a) would have had or may in the future have had, against
a AMAL Indemnified Party which:
(i) relates in any way to a breach by AMAL of its obligations under
the Bald Hill JVA;
(ii) is attributable to or was incurred or relates to the period before
the Execution Date; and
(iii) the circumstances giving rise to the relevant Claim were known
to Tawana prior to the Execution Date.
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“Cash Call Claim” means any Claim (including any threatened Claim)
under the Bald Hill JVA which Tawana or Lithco has against an AMAL
Indemnified Party which relates to a breach by AMAL of its obligations to
pay any costs that are due and payable by AMAL under the Bald Hill
JVA or to reimburse the Manager (as defined under the Bald Hill JVA) for
any costs, expenses or liabilities incurred by the Manager in accordance
with the Bald Hill JVA.
15 Exclusivity
15.1 No continuing discussions
Each party represents and warrants to the other party that from the Execution
Date, it has ceased all negotiations or discussions with any person in respect of
any Competing Transaction, or which could reasonably be expected to
encourage or lead to the making of an actual, proposed or potential Competing
Transaction.
15.2 No-shop
During the Exclusivity Period, each party must ensure that neither it nor any of its
Related Bodies Corporate or Representatives directly or indirectly:
(a) solicits, invites, encourages or initiates any enquiries, negotiations or
discussions; or
(b) communicates any intention to do any of these things,
in relation to, or which may reasonably be expected to encourage or lead to the
making of, any offer, proposal or expression of interest from any person in
relation to a Competing Transaction or which affects, prejudices or jeopardises,
or might reasonably be expected to affect, prejudice or jeopardise, the
completion of the Transaction.
Nothing in this clause 15.2 prevents a party from continuing to make normal
presentations to, and to respond to enquiries from, brokers, portfolio investors
and analysts in the ordinary course of business in relation to the Scheme or its
business generally.
15.3 No-talk
Subject to clause 15.6, during the Exclusivity Period, each party must ensure that
neither it nor any of its Related Bodies Corporate or Representatives:
(a) directly or indirectly participates in or continues any discussions or
negotiations;
(b) provides any non-public information (including due diligence information)
to a third party; or
(c) participates in negotiations or discussions with any other person
regarding,
in relation to, or which may reasonably be expected to lead to the making of:
(d) an actual, proposed or potential Competing Transaction, even if that
person’s Competing Transaction was not directly or indirectly solicited,
invited, encouraged or initiated by the party or any of its Related Bodies
Corporate or Representatives or the person has publicly announced the
Competing Transaction; or
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(e) any offer, proposal or expression of interest from any person which
affects, prejudices or jeopardises, or might reasonably be expected to
affect, prejudice or jeopardise, the completion of the Transaction.
15.4 No due diligence
Subject to clause 15.6, during the Exclusivity Period, each party must ensure that
neither it nor any of its Related Bodies Corporate or Representatives makes
available to any other person, or permits any other person to receive, other than
the other party and the other party’s Representatives (in the course of due
diligence investigations or otherwise) any non-public information relating to the
party or any of its Related Bodies Corporate in connection with such person
formulating, developing or finalising a Competing Transaction.
15.5 Notice of approaches
Subject to clause 15.6, during the Exclusivity Period, each party must promptly,
and in any event no later than 5 Business Days following the relevant event,
inform the other party if it or any of its Related Bodies Corporate or
Representatives receives or becomes aware of any:
(a) approach or proposal, whether written or otherwise, direct or indirect,
solicited or unsolicited, with respect to any actual, proposed or potential
Competing Transaction; or
(b) provision by the party or any of its Related Bodies Corporate or
Representatives of any information relating to the party or any of its
Related Bodies Corporate or any of their businesses or operations to any
person in connection with or for the purpose of an actual, proposed or
potential Competing Transaction,
and must Fairly Disclose to the other party all material details of the Competing
Transaction, including details of the proposed bidder or acquirer, together with
the terms and conditions of the actual, proposed or potential Competing
Transaction.
15.6 Exceptions to no-talk and no due diligence
Clauses 15.3, 15.4 and 15.5 do not apply to the extent they would:
(a) in respect of Tawana, otherwise prohibit Tawana or the Tawana Board
from taking any action with respect to a bona fide Tawana Competing
Transaction that was not solicited by Tawana and not otherwise brought
about as a result of a breach of Tawana's obligations under this
clause 15, where the Tawana Board has determined, in good faith and
acting reasonably, after receiving written advice from Tawana’s external
legal advisers, that not undertaking such action would be reasonably
likely to constitute a breach of the Tawana Board’s fiduciary or statutory
obligations; and
(b) in respect of AMAL, otherwise prohibit AMAL or the AMAL Board from
taking any action with respect to a bona fide AMAL Competing
Transaction that was not solicited by AMAL and not otherwise brought
about as a result of a breach of AMAL’s obligations under this clause 15,
where the AMAL Board has determined, in good faith and acting
reasonably that after receiving written advice from AMAL’s external legal
advisers, that not undertaking such action would be reasonably likely to
constitute a breach of the AMAL Board’s fiduciary or statutory
obligations.
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15.7 Matching right
(a) Tawana must:
(i) not enter into any legally binding agreement, arrangement or
understanding (whether or not in writing) pursuant to which
Tawana or a third party proposes to undertake or give effect to
an actual, proposed or potential Competing Transaction; and
(ii) use its best endeavours to procure that none of its directors
changes or withdraws their recommendation in favour of the
Scheme, publicly recommends or supports a Competing
Transaction, or otherwise makes a public statement indicating
that he or she no longer supports the Transaction,
unless:
(iii) the Tawana Board acting in good faith and in order to satisfy
their statutory or fiduciary duties (having received written advice
from Tawana's external legal and financial advisers) determines
that the Competing Transaction would or is likely to be a
Tawana Superior Proposal;
(iv) Tawana has provided AMAL with the material terms and
conditions of the Competing Transaction, including consideration
and the identity of the party making the proposal; and
(v) Tawana has given AMAL 5 Business Days after the provision of
the information referred to in clause 15.7(a)(iv) to provide a
matching or superior proposal (Matching Offer) to the terms of
the Tawana Competing Transaction.
(b) This clause 15.7 has repeating applications so that if any further
proposal which constitutes a Competing Transaction is made after AMAL
has made a Matching Offer, Tawana must comply with clauses 15.7(a)(i)
and 15.7(a)(ii) in respect of any new Competing Transaction, unless
clauses 15.7(a)(iii) to 15.7(a)(v) (inclusive) apply.
(c) The Tawana Board must consider the Matching Offer and if it
determines, acting in good faith, that the Matching Offer would provide
an outcome that is at least as favourable to Tawana Shareholders as a
whole as the relevant Competing Transaction, Tawana and AMAL must
use their best endeavours to agree any amendments to this agreement
and the contents of the Scheme Booklet, which are reasonably
necessary to reflect the Matching Offer, and to enter into an appropriate
amending agreement to give effect to those amendments and to
implement the Matching Offer, in each case, as soon as reasonably
practicable.
15.8 Legal advice
Each party acknowledges that it has received legal advice on the operation of
this clause 15.
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16 Break Fee
16.1 Background
This clause 16 has been agreed in circumstances where:
(a) AMAL and Tawana believe that the Scheme will provide significant
benefits to AMAL, Tawana and Tawana Shareholders, and AMAL and
Tawana acknowledge that, if they enter into this agreement and the
Scheme is subsequently not implemented, AMAL will incur significant
costs;
(b) the parties have agreed that provision be made for the payments
outlined in clause 16.2, without which AMAL would not have entered into
this agreement;
(c) Tawana believes that it is appropriate to agree to pay the Break Fee to
secure AMAL’s entry into this agreement and participation in the
Transaction; and
(d) each party has received separate legal advice in relation to this
agreement and the operation of this clause 16.
16.2 Payment by Tawana to AMAL
Subject to clause 16.3 and without limiting the rights of AMAL in respect of any
other claims that may arise under this agreement, Tawana must pay AMAL
(without set-off or withholding) the amount of the Break Fee if the Scheme has
not become Effective and:
(a) a Tawana Competing Transaction is announced on or before the End
Date and either:
(i) Tawana enters into a legally binding agreement to undertake the
Tawana Competing Transaction; or
(ii) at any time on or prior to the date 6 months after the end of the
Exclusivity Period, the proponent of the Tawana Competing
Transaction acquires control of Tawana (within the meaning of
section 50AA of the Corporations Act), or voting power or an
economic interest in more than 50% of Tawana Shares, more
than 50% of the shares in any material Subsidiary, or acquires
or obtains an economic interest in more than 50% (by value) of
the assets (excluding cash), cash or business of the Tawana
Group;
(b) on or before the End Date, any member of the Tawana Board:
(i) fails to recommend that Tawana Shareholders vote in favour of
the Scheme or support the Scheme;
(ii) changes or withdraws his or her recommendation that Tawana
Shareholders vote in favour of the Scheme;
(iii) publicly recommends or supports a Tawana Competing
Transaction; or
(iv) otherwise makes a public statement indicating that he or she no
longer supports the Transaction,
except:
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(v) as a result of the Independent Expert's Report (or any update of,
or revision, amendment or addendum to, that report) where that
report states that in the opinion of the Independent Expert the
Scheme is not in the best interests of Tawana Shareholders; or
(vi) where Tawana is entitled to terminate this agreement pursuant
to clause 20.1(b)(iv) and has given the appropriate termination
notice to AMAL; or
(c) AMAL validly terminates this agreement in accordance with:
(i) clause 20.1(b)(i)(A);
(ii) clause 20.1(b)(i)(B);
(iii) clause 20.1(b)(iii);
(iv) clause 20.1(b)(iv); or
(v) clause 20.1(e)(ii) in respect of the Condition Precedent in item 5
(No Tawana Prescribed Event) of Schedule 2; or
(d) Tawana validly terminates this agreement in accordance with
clause 20.1(b)(ii)(C)(ab).
16.3 No amount payable if Scheme becomes Effective
Notwithstanding the occurrence of any event referred to in clause 16.2, no
amount of the Break Fee is payable if the Scheme becomes Effective.
16.4 Timing of payment
Tawana must pay AMAL the Break Fee (without set-off or withholding) within 20
Business Days of receipt by Tawana of a demand for payment from AMAL. The
demand may only be made after the occurrence of an event referred to in
clause 16.2. Tawana can only ever be liable to pay the Break Fee once.
16.5 Nature of payment
The Break Fee has been calculated as an amount to compensate AMAL for:
(a) advisory costs (including costs of advisers other than success fees);
(b) costs of management and directors’ time;
(c) out-of-pocket expenses; and
(d) reasonable opportunity costs incurred by AMAL in pursuing the
Transaction or in not pursuing other alternative acquisitions or strategic
initiatives which AMAL could have developed to further its business and
objectives.
16.6 Tawana’s limitation of liability
Notwithstanding any other provision of this agreement, the maximum liability of
Tawana to AMAL under or in connection with this agreement (including in respect
of any breach of the agreement), other than in the case of conduct designed or
intended to frustrate the Transaction or fraud or wilful misconduct or breach on
the part of Tawana, will be the amount of the Break Fee.
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16.7 Compliance with law
(a) This clause 16 does not impose an obligation on Tawana to pay the
Break Fee to the extent (and only to the extent) that the obligation to pay
the Break Fee:
(i) is declared by the Takeovers Panel to constitute ‘unacceptable
circumstances’; or
(ii) is determined to be unenforceable or unlawful by a court,
provided that all proper avenues of appeal and review, judicial and
otherwise, have been exhausted. For the avoidance of doubt, any part
of that fee that would not constitute ‘unacceptable circumstances’ or that
is not unenforceable or unlawful (as applicable) must be paid by
Tawana.
(b) The parties must not make or cause or permit to be made, any
application to the Takeovers Panel or a court for or in relation to a
declaration or determination referred to in clause 16.7(a).
16.8 Survival
This clause 16 survives termination of this agreement.
17 Reverse Break Fee
17.1 Background
This clause 17 has been agreed in circumstances where:
(a) AMAL and Tawana believe that the Scheme will provide significant
benefits to AMAL, Tawana and AMAL Shareholders, and AMAL and
Tawana acknowledge that, if they enter into this agreement and the
Scheme is subsequently not implemented, Tawana will incur significant
costs;
(b) the parties have agreed that provision be made for the payments
outlined in clause 17.2, without which Tawana would not have entered
into this agreement;
(c) AMAL believes that it is appropriate to agree to pay the Break Fee to
secure Tawana’s entry into this agreement and participation in the
Transaction; and
(d) each party has received separate legal advice in relation to this
agreement and the operation of this clause 17.
17.2 Payment by AMAL to Tawana
Subject to clause 17.3 and without limiting the rights of Tawana in respect of any
other claims that may arise under this agreement, AMAL must pay Tawana
(without set-off or withholding) the amount of the Break Fee if the Scheme has
not become Effective and:
(a) an AMAL Competing Transaction is announced on or before the End
Date and either:
(i) AMAL enters into a legally binding agreement to undertake the
AMAL Competing Transaction; or
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(ii) at any time on or prior to the date 6 months after the end of the
Exclusivity Period, the proponent of the AMAL Competing
Transaction acquires control of AMAL (within the meaning of
section 50AA of the Corporations Act), or voting power or an
economic interest in more than 50% of AMAL Shares, or
acquires or obtains an economic interest in more than 50% (by
value) of the assets (excluding cash), cash or business of
AMAL;
(b) on or before the End Date, any member of the AMAL Board:
(i) fails to recommend that AMAL Shareholders vote in favour of
the AMAL Shareholder Resolutions or support the Scheme;
(ii) changes or withdraws his or her recommendation that AMAL
Shareholders vote in favour of the AMAL Shareholder
Resolutions;
(iii) publicly recommends or supports an AMAL Competing
Transaction; or
(iv) otherwise makes a public statement indicating that he or she no
longer supports the Transaction,
except where AMAL is entitled to terminate this agreement pursuant to
clause 20.1(b)(iv) and has given the appropriate termination notice to
Tawana; or
(c) Tawana validly terminates this agreement in accordance with:
(i) clause 20.1(b)(ii)(A);
(ii) clause 20.1(b)(ii)(B);
(iii) clause 20.1(b)(iii);
(iv) clause 20.1(b)(iv); or
(v) clause 20.1(e)(ii) in respect of the Condition Precedent in item 6
(No AMAL Prescribed Event) of Schedule 2;
(d) AMAL validly terminates this agreement in accordance with
clause 20.1(b)(i)(C); or
(e) AMAL does not pay the Scheme Consideration in accordance with the
terms and conditions of the Scheme Implementation Agreement, the
Scheme and the Deed Poll.
17.3 No amount payable if Scheme becomes Effective
Notwithstanding the occurrence of any event referred to in clause 17.2, no
amount of the Break Fee is payable if the Scheme becomes Effective and the
Scheme Consideration is paid by AMAL.
17.4 Timing of payment
AMAL must pay Tawana the Break Fee (without set-off or withholding) within 20
Business Days of receipt by AMAL of a demand for payment from Tawana. The
demand may only be made after the occurrence of an event referred to in
clause 17.2. AMAL can only ever be liable to pay the Break Fee once.
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17.5 Nature of payment
The Break Fee has been calculated as an amount to compensate Tawana for:
(a) advisory costs (including costs of advisers other than success fees);
(b) costs of management and directors’ time;
(c) out-of-pocket expenses; and
(d) reasonable opportunity costs incurred by Tawana in pursuing the
Transaction or in not pursuing other alternative acquisitions or strategic
initiatives which Tawana could have developed to further its business
and objectives.
17.6 AMAL's limitation of liability
Notwithstanding any other provision of this agreement, the maximum liability of
AMAL to Tawana under or in connection with this agreement (including in respect
of any breach of the agreement), other than in the case of conduct designed or
intended to frustrate the Transaction or fraud or wilful misconduct or breach on
the part of AMAL, will be the amount of the Break Fee.
17.7 Compliance with law
(a) This clause 17 does not impose an obligation on AMAL to pay the Break
Fee to the extent (and only to the extent) that the obligation to pay the
Break Fee:
(i) is declared by the Takeovers Panel to constitute ‘unacceptable
circumstances’; or
(ii) is determined to be unenforceable or unlawful by a court,
provided that all proper avenues of appeal and review, judicial and
otherwise, have been exhausted. For the avoidance of doubt, any part
of that fee that would not constitute ‘unacceptable circumstances’ or that
is not unenforceable or unlawful (as applicable) must be paid by AMAL.
(b) The parties must not make or cause or permit to be made, any
application to the Takeovers Panel or a court for or in relation to a
declaration or determination referred to in clause 17.7(a).
17.8 Survival
This clause 17 survives termination of this agreement.
18 Representations and warranties
18.1 Tawana's representations and warranties
Tawana represents and warrants to AMAL that each of the statements set out in
Schedule 6 is true and correct in all material respects as at the Execution Date
and until 5.00pm on the Business Day immediately prior to the Second Court
Date.
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18.2 Tawana's indemnity
Tawana indemnifies the AMAL Indemnified Parties against all Losses incurred
directly or indirectly as a result of the representation and warranty in clause 18.1
not being true and correct.
18.3 Tawana warranty certificate
Tawana must provide to AMAL on the Business Day immediately prior to the
Second Court Date a certificate signed by a director of Tawana and made in
accordance with a resolution of the Tawana Board stating, as at that date, that
the representation and warranty given by Tawana in clause 18.1 remains true
and accurate or, if such representation or warranty is not true and accurate as at
that date, providing complete particulars of the facts and matters which make the
representation or warranty untrue or inaccurate.
18.4 Qualifications to Tawana’s representations and warranties
The representation and warranty given by Tawana in clause 18.1 and the
statements set out in Schedule 6 are each subject to matters:
(a) which were disclosed in a public document lodged with ASIC or
announced on ASX, in the 2 years prior to the Execution Date;
(b) which would have been known to AMAL if it (or its Representatives) had
conducted searches in respect of the Tawana Group 5 Business Days
before the Execution Date of:
(i) the PPSR; and
(ii) any public record maintained by ASIC, the High Court, the
Federal Court and the Supreme Court in every State and
Territory in Australia; and
(c) actually known to AMAL and its directors, officers or employees (other
than to the extent that such matters are only known by Representatives
not involved with the Transaction),
and will be deemed not to have been breached if such breach was caused by, or
resulted from, a Permitted Transaction or Tawana Excluded Conduct.
18.5 AMAL’s representations and warranties
AMAL represents and warrants to Tawana that each of the statements set out in
Schedule 7 is true and correct in all material respects as at the Execution Date
and until 5.00pm on the Business Day immediately prior to the Second Court
Date.
18.6 AMAL’s indemnity
AMAL indemnifies the Tawana Indemnified Parties against all Losses incurred
directly or indirectly as a result of the representation and warranty in clause 18.5
not being true and correct.
18.7 AMAL warranty certificate
AMAL must provide to Tawana on the Business Day immediately prior to the
Second Court Date a certificate signed on behalf of AMAL stating, as at that date,
that the representation and warranty given by AMAL in clause 18.5 remains true
and accurate or, if such representation or warranty is not true and accurate
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as at that date, providing complete particulars of the facts and matters which
make the representation or warranty untrue or inaccurate.
18.8 Qualifications to AMAL’s representations and warranties
The representation and warranty given by AMAL in clause 18.5 and the
statements set out in Schedule 7 are each subject to matters:
(a) which were disclosed in a public document lodged with ASIC or
announced on SGX, in the 2 years prior to the Execution Date;
(b) which would have been known to Tawana if it (or its Representatives)
had conducted searches in respect of AMAL 5 Business Days before the
Execution Date of:
(i) the PPSR; and
(ii) any public record maintained by the High Court, the Federal
Court and the Supreme Court in every State and Territory in
Australia; and
(c) actually known to Tawana and its directors, officers or employees (other
than to the extent that such matters are only known by Representatives
not involved with the Transaction),
and will be deemed not to have been breached if such breach was caused by, or
resulted from, a Permitted Transaction or AMAL Excluded Conduct.
18.9 Survival of representations
Each representation and warranty referred to in clauses 18.1 or 18.5:
(a) is severable; and
(b) survives the termination of this agreement.
18.10 Survival of indemnities
Each indemnity in this agreement (including those in clauses 18.2 and 18.6):
(a) is severable;
(b) is a continuing obligation;
(c) constitutes a separate and independent obligation of the party giving the
indemnity from any other obligations of that party under this agreement;
and
(d) survives the termination of this agreement.
19 Court proceedings
19.1 Appeal process
If the Court refuses to make orders convening the Scheme Meeting or approving
the Scheme, AMAL and Tawana must appeal the Court’s decision to the fullest
extent possible except to the extent that:
(a) the parties otherwise agree in writing;
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(b) external legal counsel representing that party in relation to the Scheme
indicates in writing that, in their opinion, an appeal would likely have less
than a 50% prospect of success; or
(c) there is, in the bona fide view of the Tawana Board or the AMAL Board,
a Tawana Superior Proposal which should be recommended in
preference to the Scheme,
in which case either party may terminate this agreement.
19.2 Defence of proceedings
Each of Tawana and AMAL must vigorously defend, or must cause to be
vigorously defended, any lawsuits or other legal proceeding brought against it (or
any of its Subsidiaries) challenging this agreement or the completion of the
Scheme. Neither Tawana nor AMAL will settle or compromise (or permit any of
its Subsidiaries to settle or compromise) any claim brought in connection with this
agreement without the prior written consent of the other, such consent not to be
unreasonably withheld.
19.3 Costs
Any costs incurred as a result of the operation of this clause 19 will be borne
equally by each party.
20 Termination
20.1 Termination events
Without limiting any other provision of this agreement (including clauses 3.10 and
19.1), this agreement may be terminated at any time prior to 8.00am on the
Second Court Date:
(a) (End Date) by either party, if the Scheme has not become Effective on
or before the End Date, unless the Scheme has not become Effective
due to a breach by such party of its obligations under this agreement;
(b) (lack of support or breach)
(i) by AMAL if:
(A) the Tawana Board or any of its members changes or
withdraws its recommendation to the Scheme
Participants that they vote in favour of the Scheme,
including any adverse modification to its
recommendation, or otherwise makes a public
statement indicating that it no longer supports the
Transaction, or the Tawana Board or any Tawana
Director recommends or supports a Competing
Transaction;
(B) any Tawana Director qualifies or withdraws their voting
intention to vote the Tawana Shares in which they have
a Relevant Interest in favour of the resolution to approve
the Scheme, in the absence of a Superior Proposal; or
(C) at any time prior to the date of the meeting at which the
AMAL Shareholders Resolutions will be considered, a
majority of the AMAL Board changes or withdraws their
recommendation to Scheme Participants that they vote
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in favour of the Scheme as a result of the AMAL Board,
after making a determination in accordance with clause
15.6(b), determining there is an AMAL Superior
Proposal;
(ii) by Tawana if:
(A) the AMAL Board or any of its members changes or
withdraws its recommendation to AMAL Shareholders
that they vote in favour of the AMAL Shareholder
Resolutions, including any adverse modification to its
recommendation, or otherwise makes a public
statement indicating that it no longer supports the
Transaction, or the AMAL Board or any AMAL Director
recommends or supports a Competing Transaction;
(B) any AMAL Director qualifies or withdraws their voting
intention to vote the AMAL Shares in which they have a
Relevant Interest in favour of the AMAL Shareholder
Resolutions, in the absence of an AMAL Superior
Proposal; or
(C) at any time prior to Scheme Meeting, a majority of the
Tawana Board changes or withdraws their
recommendation to Scheme Participants that they vote
in favour of the AMAL Shareholder Resolutions as a
result of:
(aa) the Independent Expert's Report (or any update
of, or revision, amendment or addendum to,
that report) stating that in the opinion of the
Independent Expert the Scheme is not in the
best interests of Tawana Shareholders; or
(ab) the Tawana Board, after making a
determination in accordance with
clause 15.6(a), determining there is a Tawana
Superior Proposal;
(iii) by either AMAL or Tawana if the other is in material breach of
clause 15; or
(iv) by either AMAL or Tawana if the other is in material breach of
this agreement (including as a result of a material breach of a
representation or warranty) provided that either AMAL or
Tawana has given notice to the other setting out the relevant
circumstances and stating an intention to terminate, and the
relevant circumstances continue to exist 10 Business Days (or
any shorter period ending at 8.00am on the day before the
Second Court Date) after the time such notice is given. This
clause 20.1(b)(iv) shall not operate in respect of an allegation of
breach of clause 10.2(d) by reason of a party failing to comply in
all material respects with the Bald Hill JVA (JVA Claim), unless
the JVA Claim is supported by a written opinion of senior
counsel (the identify of such senior counsel being agreed
between the parties) opining that the JVA Claim is likely to
succeed and likely to result in an order for damages of not less
than $5 million;
(c) (Scheme not approved) by either party if the resolution submitted to the
Scheme Meeting is not approved by the requisite majorities;
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(d) (restraint) by either party if a Court or other Regulatory Authority has
issued a final and non-appealable order, decree or ruling or taken other
action which permanently restrains or prohibits the Scheme; or
(e) (consultation or appeal failure) in accordance with and pursuant to:
(i) clause 3.10(a);
(ii) clause 3.10(b); or
(iii) clause 19.1.
20.2 Termination
Where a party has a right to terminate this agreement, that right for all purposes
will be validly exercised if, subject to any other requirements of this agreement,
the party delivers a notice in writing to the other party stating that it terminates
this agreement.
20.3 Effect of termination
In the event that a party terminates this agreement, or if this agreement
otherwise terminates in accordance with its terms, then in either case all further
obligations of the parties under this agreement, other than the obligations set out
in clauses 16, 17, 18, 21, 22 and 24, will immediately cease to be of further force
and effect without further liability of any party to the other, provided that nothing
in this clause 20.3 releases any party from liability for any pre-termination breach
of this agreement.
20.4 Damages
(a) In addition to the rights of termination under clause 20.1 but subject to
clauses 16.6 and 17.6 (as applicable) and clauses 20.4(b) and 20.4(c),
where there is no appropriate remedy for the breach in the agreement
(other than termination), the non-defaulting party is entitled to damages
for Losses suffered by it directly as a result of the breach of the terms of
this agreement.
(b) Despite any other provision in this agreement, where an amount
becomes payable to AMAL under clause 16.2 and is actually paid to
AMAL (or is payable, but no demand is made under clause 16.2), AMAL
cannot make any Claim (other than a Claim under clause 16 or in
respect of fraud or other conduct referred to in clause 16.6) against
Tawana which relates to the event that gave rise to the right to make a
demand under clause 16.2.
(c) Despite any other provision in this agreement, where an amount
becomes payable to Tawana under clause 17.2 and is actually paid to
Tawana (or is payable, but no demand is made under clause 17.2),
Tawana cannot make any Claim (other than a Claim under clause 17 or
in respect of fraud or other conduct referred to in clause 17.6) against
AMAL which relates to the event that gave rise to the right to make a
demand under clause 17.2.
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21 Public announcements
21.1 Public announcement of Scheme
Immediately after signing this agreement, Tawana and AMAL will issue separate
public announcements of the Transaction. The parties will consult with each
other to agree the form of these public announcements.
21.2 Required disclosure
(a) Subject to clause 21.2(b), where a party is required by law, the ASX
Listing Rules, the SGX Listing Rules or a memorandum of understanding
with a Regulatory Authority to make any announcement or make any
disclosure relating to a matter the subject of the Transaction, it may do
so only after it has given the other party as much notice as reasonably
possible and has consulted to the fullest extent possible in the
circumstances with the other party and its legal advisers.
(b) The obligations in clause 21.2(a) do not apply to any announcements by
a party which:
(i) relate to a Competing Transaction; or
(ii) are made during a Superior Proposal Period.
21.3 Other announcements
Subject to clauses 21.1 and 21.2, no party may make any public announcement
or disclosure in connection with the Transaction (including disclosure to a
Regulatory Authority) other than in a form approved by each party (acting
reasonably). Each party will use all reasonable endeavours to provide such
approval as soon as practicable.
22 Confidential Information
Each party acknowledges and agrees that it continues to be bound by the
Confidentiality Agreement in respect of all information received by it from the
other party on, before or after the Execution Date, except that where there is a
conflict or inconsistency between the terms of this agreement and the
Confidentiality Agreement, the terms of this agreement will prevail to the extent of
the conflict or inconsistency.
23 Notices and other communications
23.1 Form - all communications
Unless expressly stated otherwise in this agreement, all notices, certificates,
consents, approvals, waivers and other communications in connection with this
agreement must be:
(a) in writing;
(b) signed by the sender (if an individual) or an Authorised Officer of the
sender; and
(c) marked for the attention of the person identified in the Details (or, if the
recipient has notified otherwise, then marked for attention in the way last
notified) and:
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(i) in the case of communications to AMAL, a copy must be sent to
Scott Gibson, Partner, DLA Piper Australia,
Scott.Gibson@dlapiper.com; and
(ii) in the case of communications to Tawana, a copy must be sent
to: Heath Lewis, Partner, King & Wood Mallesons,
heath.lewis@au.kwm.com.
23.2 Form - communications sent by email
Communications sent by email need not be marked for attention in the way
stated in clause 23.1 except that copies must be sent in accordance with sub-
clauses 23.1(c)(i) and 23.1(c)(ii). The email must state the first and last name of
the sender.
Communications sent by email are taken to be signed by the named sender.
23.3 Delivery
Communications must be:
(a) left at the address set out or referred to in the Details;
(b) sent by regular post (airmail if appropriate) to the address set out or
referred to in the Details with a copy to be sent by email to the address
set out or referred to in the Details;
(c) sent by fax to the fax number set out or referred to in the Details;
(d) sent by email to the address set out or referred to in the Details; or
(e) given in any other way permitted by law.
However, if the intended recipient has notified a changed address, fax number or
email address, then communications must be to that address, fax number or
email address.
23.4 When effective
Communications take effect from the time they are received or taken to be
received under clause 23.5 (whichever happens first) unless a later time is
specified.
23.5 When taken to be received
Communications are taken to be received:
(a) if sent by post, 6 Business Days after posting (or 10 Business Days after
posting if sent from one country to another);
(b) if sent by fax, at the time shown in the transmission report as the time
that the whole fax was sent; or
(c) if sent by email;
(i) when the sender receives an automated message confirming
delivery; or
(ii) four 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 the email has not been delivered,
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whichever happens first.
23.6 Receipt outside business hours
Despite clauses 23.4 and 23.5, if communications are received or taken to be
received under clause 23.5 after 5.00pm in the place of receipt or on a non-
Business Day, they are taken to be received at 9.00am on the next Business Day
and take effect from that time unless a later time is specified.
24 Goods and services tax (GST)
24.1 Consideration GST exclusive
Unless expressly stated otherwise in this agreement, all amounts payable or
consideration to be provided under this agreement are exclusive of GST.
24.2 Payment of GST
If GST is payable on any supply made under this agreement, for which the
consideration is not expressly stated to include GST, the recipient agrees to pay
to the supplier an additional amount equal to the GST payable at the same time
that the consideration for the supply, or the first part of the consideration for the
supply (as the case may be), is to be provided. However:
(a) the recipient need not pay the additional amount until the supplier gives
the recipient a tax invoice or an adjustment note;
(b) if an adjustment event arises in respect of the supply, the additional
amount must be adjusted to reflect the adjustment event and the
recipient or the supplier (as the case may be) must make any payments
necessary to reflect the adjustment; and
(c) this clause 24.2 does not apply to the extent that the GST on the supply
is payable by the recipient under Division 84 of the GST Act.
24.3 Reimbursements
If a party is required under this agreement to indemnify another party, or pay or
reimburse costs of another party, that party agrees to pay the relevant amount
less any input tax credits to which the other party (or to which the representative
member for a GST group of which the other party is a member) is entitled.
24.4 Calculation of payments
If an amount payable under this agreement is to be calculated by reference to:
(a) the price to be received for a taxable supply then, for the purposes of
that calculation, the price is reduced to the extent that it includes any
amount on account of GST; and
(b) the price to be paid or provided for an acquisition then, for the purposes
of that calculation, the price is reduced to the extent that an input tax
credit is available for the acquisition.
24.5 Interpretation
For the purposes of this clause 24:
(a) a term which has a defined meaning in the GST Act has the same
meaning when used in this clause 24;
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(b) GST Act means the A New Tax System (Goods and Services Tax) Act
1999 (Cth); and
(c) each periodic or progressive component of a supply to which section
156-5(1) of the GST Act applies will be treated as though it is a separate
supply.
25 Miscellaneous
25.1 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent in any way it
considers appropriate (including by imposing conditions), unless this agreement
expressly states otherwise.
25.2 Partial exercising of rights
If a party does not exercise a right or remedy fully or at a given time, the party
may still exercise it later.
25.3 No liability for loss
A party is not liable for loss caused by the exercise or attempted exercise of,
failure to exercise, or delay in exercising a right or remedy under this agreement.
25.4 Approvals and consents
By giving its approval or consent a party does not make or give any warranty or
representation as to any circumstance relating to the subject matter of the
consent or approval.
25.5 Conflict of interest
The parties’ rights and remedies under this agreement may be exercised even if
it involves a conflict of duty or a party has a personal interest in their exercise.
25.6 Remedies cumulative
The rights and remedies in this agreement are in addition to other rights and
remedies given by law independently of this agreement.
25.7 Variation and waiver
A provision of this agreement or a right created under it, may not be waived or
varied except in writing, signed by the party or parties to be bound.
25.8 No merger
The warranties, undertakings and indemnities in this agreement do not merge on
the Implementation Date.
25.9 Indemnities
The indemnities in this agreement are continuing obligations, independent from
the other obligations of the parties under this agreement and continue after this
agreement ends. It is not necessary for a party to incur expense or make
payment before enforcing a right of indemnity under this agreement.
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25.10 Enforceability
For the purpose of this agreement:
(a) Tawana is taken to be acting as agent and trustee on behalf of and for
the benefit of all Tawana Indemnified Parties; and
(b) AMAL is taken to be acting as agent and trustee on behalf of and for the
benefit of all AMAL Indemnified Parties,
and all of those persons are to this extent taken to be parties to this agreement.
25.11 Further steps
Each party agrees, at its own expense, to do anything the other party asks (such
as obtaining consents, signing and producing documents and getting documents
completed and signed):
(a) to bind the party and any other person intended to be bound under this
agreement; or
(b) to show whether the party is complying with this agreement.
25.12 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 agreement or any
part of it.
25.13 Costs
Subject to clauses 16 and 17, the parties agree to pay their own legal and other
costs and expenses in connection with the preparation, execution and completion
of this agreement and other related documentation except for stamp duty
(including any costs incurred as a result of the operation of clause 19).
25.14 Stamp duty
AMAL agrees to pay all stamp duty (including fines and penalties) payable and
assessed on this agreement or the Scheme and in respect of a transaction
evidenced by this agreement or the Scheme.
25.15 Entire agreement
Except for the Confidentiality Agreement, this agreement constitutes the entire
agreement of the parties about its subject matter and supersedes all previous
agreements, understandings and negotiations on that subject matter.
25.16 Assignment
A party may not assign or otherwise deal with its rights under this agreement or
allow any interest in them to arise or be varied in each case, without the consent
of the other party.
25.17 No representation or reliance
Each party acknowledges that:
(a) no party (nor any person acting on its behalf) has made any
representation or other inducement to it to enter into this agreement,
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except for representations or inducements expressly set out in this
agreement;
(b) it does not enter into this agreement in reliance on any representation or
other inducement by or on behalf of any other party, except for any
representation or inducement expressly set out in this agreement; and
(c) clauses 25.17(a) and 25.17(b) above do not prejudice any rights a party
may have in relation to information which had been filed by the other
party with ASIC or ASX.
25.18 Governing law
This agreement is governed by the law in force in the place specified in the
Details. Each party submits to the non-exclusive jurisdiction of the courts of that
place.
25.19 Counterparts
This agreement may consist of a number of copies, signed by one or more
parties to the agreement. If so, the signed copies are treated as making up the
one document. This agreement will take effect when all counterparts are
received (whether by email or otherwise) by AMAL at its address listed in the
Details.
EXECUTED as an agreement
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Scheme Implementation Agreement
Schedule 1 Prescribed Events
Part 1: Tawana Prescribed Events
1 (Conversion) Tawana converts all or any of its shares into a larger or smaller
number of shares.
2 (Reduction of share capital) Tawana or any of its Subsidiaries resolves to
reduce its share capital in any way or reclassifies, combines, splits or redeems or
repurchases directly or indirectly any of its shares, other than in connection with
the Spin-out Transaction.
3 (Buy-back) Tawana or any of its Subsidiaries:
(a) enters into a buy-back agreement; or
(b) resolves to approve the terms of a buy-back agreement under the
Corporations Act.
4 (Distribution) Tawana makes or declares, or announces an intention to make or
declare, any distribution (whether by way of dividend, capital reduction or
otherwise and whether in cash or in specie), other than in connection with the
Spin-out Transaction.
5 (Issuing or granting shares or options) Tawana or any of its Subsidiaries:
(a) issues shares (other than the Metalicity Shares, or upon exercise of a
Tawana Employee Option or any Option granted prior to the Execution
Date);
(b) grants a performance right or an option over its shares (other than a
Tawana Employee Option); or
(c) agrees to make such an issue or grant such an option,
in each case to a person outside the Tawana Group, other than in connection
with a Capital Raising.
6 (Securities or other instruments) Tawana or any of its Subsidiaries:
(a) issues securities or other instruments convertible into shares or debt
securities; or
(b) agrees to issue securities or other instruments convertible into shares or
debt securities,
in each case to a person outside the Tawana Group, other than the Tawana
Employee Options.
7 (Constitution) Tawana adopts a new constitution or modifies or repeals its
constitution or a provision of it, other than in connection with the Spin-out
Transaction.
8 (Disposals) Tawana or any of its Subsidiaries disposes, or agrees to dispose of
the whole or a substantial part of the Tawana Group’s business or property, other
than in connection with the Spin-out Transaction.
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9 (Acquisitions, disposals or tenders) Tawana or any of its Subsidiaries:
(a) acquires or disposes of;
(b) agrees to acquire or dispose of; or
(c) offers, proposes, announces a bid or tenders for (other than client bids or
tenders in the ordinary course of Tawana’s business),
any business, assets, entity or undertaking the value of which exceeds $250,000,
other than in connection with the Spin-out Transaction or the Metalicity
Agreement.
10 (Encumbrances) other than in the ordinary course of business and consistent
with past practice, Tawana or any of its Subsidiaries creates, or agrees to create,
any Encumbrance over the whole or a substantial part of its business or property,
other than any Encumbrance granted by Tawana or Lithco to secure obligations
under the Proposed Facility.
11 (Insolvency) Tawana or any of its Related Bodies Corporate becomes Insolvent.
12 (Inconsistent transaction) Tawana enters into an agreement in respect of a
Tawana Competing Transaction.
13 (Minimum cash amount) following completion of Tawana’s Capital Raising, the
amount of cash and cash equivalents of the Tawana Group falls below
A$3,000,000.
14 (Indebtedness) the consolidated Indebtedness of the Tawana Group increases
above A$25,000,000 (calculated exclusive of the amount of any advisers’ fees,
costs and other related expenses incurred by Tawana in undertaking the
Transaction, and exclusive of any Indebtedness from time to time arising from
the Proposed Facility).
15 (Employment arrangements) other than in the ordinary course of business and
consistent with past practice Tawana or any of its Subsidiaries:
(a) increases the remuneration of, or otherwise varies the employment
arrangements with, any of its directors or employees;
(b) accelerates the rights of any of its directors or employees to
compensation or benefits or any kind (excluding under any Tawana
executive or employee share plans); or
(c) pays any of its directors or employees a termination or retention payment
(otherwise than in accordance with an existing contract in place at the
Execution Date).
16 (Commitments and settlements) other than in connection with the Spin-out
Transaction, Tawana or any of its Subsidiaries:
(a) enters into or agrees to enter into a Material Contract (other than the
Proposed Facility);
(b) terminates or amends in a material manner a Material Contract or
amends any other contract in such a manner that it becomes a Material
Contract;
(c) waives any material third party default in any Material Contract; or
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(d) accepts as a settlement or compromise of a material matter (relating to
an amount in excess of $250,000) less than the full compensation due to
Tawana or a Subsidiary.
Part 2: AMAL Prescribed Events
1 (Conversion) AMAL converts all or any of its shares into a larger or smaller
number of shares.
2 (Reduction of share capital) AMAL resolves to reduce its share capital in any
way or reclassifies, combines, splits or redeems or repurchases directly or
indirectly any of its shares.
3 (Buy-back) AMAL:
(a) enters into a buy-back agreement; or
(b) resolves to approve the terms of a buy-back agreement under the
Corporations Act.
4 (Distribution) AMAL makes or declares, or announces an intention to make or
declare, any distribution (whether by way of dividend, capital reduction or
otherwise and whether in cash or in specie).
5 (Issuing or granting shares or options) AMAL:
(a) issues shares (other than upon exercise of an option granted prior to the
Execution Date or the issue of the AMAL Management Shares);
(b) grants a performance right or an option over its shares; or
(c) agrees to make such an issue or grant such an option,
other than in connection with a Capital Raising.
6 (Securities or other instruments) AMAL:
(a) issues securities or other instruments convertible into shares or debt
securities; or
(b) agrees to issue securities or other instruments convertible into shares or
debt securities.
7 (Constitution) other than as required for admission of AMAL to the Official List,
AMAL adopts a new constitution or modifies or repeals its constitution or a
provision of it.
8 (Disposals) AMAL disposes, or agrees to dispose of the whole or a substantial
part of AMAL’s business or property.
9 (Acquisitions, disposals or tenders) AMAL:
(a) acquires or disposes of;
(b) agrees to acquire or dispose of; or
(c) offers, proposes, announces a bid or tenders for (other than client bids or
tenders in the ordinary course of AMAL’s business),
any business, assets, entity or undertaking the value of which exceeds $250,000.
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10 (Encumbrances) other than in the ordinary course of business and consistent
with past practice, AMAL creates, or agrees to create, any Encumbrance over
the whole or a substantial part of its business or property.
11 (Insolvency) AMAL or any of its Related Bodies Corporate becomes Insolvent.
12 (Inconsistent transaction) AMAL enters into an agreement in respect of an
AMAL Competing Transaction.
13 (Minimum cash amount) following AMAL’s Capital Raising, the amount of cash
and cash equivalents of AMAL falls below A$3,000,000.
14 (Indebtedness) the total Indebtedness of AMAL increases above A$30,000,000
(calculated exclusive of the amount of any advisers’ fees, costs and other related
expenses incurred by AMAL in undertaking the Transaction).
15 (Employment arrangements) other than in the ordinary course of business and
consistent with past practice AMAL or any of its Subsidiaries:
(a) increases the remuneration of, or otherwise varies the employment
arrangements with, any of its directors or employees;
(b) accelerates the rights of any of its directors or employees to
compensation or benefits or any kind (including under any AMAL
executive or employee share plans); or
(c) pays any of its directors or employees a termination or retention payment
(otherwise than in accordance with an existing contract in place at the
Execution Date).
16 (Commitments and settlements) AMAL:
(a) enters into or agrees to enter into a Material Contract;
(b) terminates or amends in a material manner a Material Contract or
amends any other contract in such a manner that it becomes a Material
Contract;
(c) waives any material third party default in any Material Contract; or
(d) accepts as a settlement or compromise of a material matter (relating to
an amount in excess of $250,000) less than the full compensation due to
AMAL or a Subsidiary.
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Scheme Implementation Agreement
Schedule 2 Conditions Precedent (clause 3.1)
Condition Party entitled to
benefit
1 Approvals or Restraints
Before 8.00am on the Second Court Date:
(a) (ASIC) ASIC has issued or provided such
consents, approvals, modifications or exemptions Both
or has done such other acts which the parties
agree are reasonably necessary or desirable to
implement the Transaction;
(b) (ASX) ASX has issued or provided such consents, Both
approvals or waivers or has done such other acts
which the parties agree are reasonably necessary
or desirable to implement the Transaction;
(c) (SGX) SGX has issued or provided such consents, Cannot be waived
approvals or waivers or has done such other acts
which the parties agree are reasonably necessary
or desirable to implement the Transaction
including:
(i) approval of the SGX for the despatch of
the AMAL Shareholders’ Circular and the
Transaction; and
(ii) approval of the issuance of the listing and
quotation notice approving, amongst
others, the listing and quotation of the
Scheme Consideration on the official list
of the Catalist;
(d) (FIRB approval) either: Cannot be waived
(i) the Treasurer (or his delegate) has
provided notice that there are no
objections to the proposed Transaction
either unconditionally or with conditions
reasonably acceptable to AMAL; or
(ii) following notice of the proposed
Transaction having been given by AMAL
to the Treasurer under the FATA, the
Treasurer has ceased to be empowered to
make any order because of lapse of time;
(e) (Regulatory Authority) all other approvals of a Both
Regulatory Authority which AMAL and Tawana
agree are necessary to implement the Scheme
have been granted obtained and not withdrawn,
cancelled, revoked or varied in a manner
materially adverse to the parties;
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Condition Party entitled to
benefit
(f) (Court orders) no Court of competent jurisdiction Both
has issued or taken steps to issue an order,
temporary restraining order, preliminary or
permanent injunction, preliminary or permanent
decision, notice of objection, decree or ruling or
taken any action enjoining, restraining or otherwise
imposing a legal restraint or prohibition preventing
the Transaction and no such order, decree, ruling,
other action or refusal is in effect.
2 Scheme approval Cannot be waived
Tawana Shareholders have approved the Scheme at the
Scheme Meeting by the requisite majorities in accordance
with the Corporations Act.
3 Court approval Cannot be waived
The Court has approved the Scheme in accordance with
section 411(4)(b) of the Corporations Act.
4 Independent Expert Tawana
The Independent Expert has issued an Independent
Expert's Report which concludes that the Scheme is in the
best interests of Scheme Participants, and the Independent
Expert has not withdrawn or adversely modified that
conclusion by 8.00am on the Second Court Date.
5 No Tawana Prescribed Event AMAL
No Tawana Prescribed Event has occurred between (and
including) the Execution Date and 8.00am on the Second
Court Date.
6 No AMAL Prescribed Event Tawana
No AMAL Prescribed Event has occurred between (and
including) the Execution Date and 8.00am on the Second
Court Date.
7 No Tawana Material Adverse Change AMAL
No Tawana Material Adverse Change has occurred
between the Execution Date and 8.00am on the Second
Court Date.
8 No AMAL Material Adverse Change Tawana
No AMAL Material Adverse Change has occurred between
the Execution Date and 8.00am on the Second Court Date.
9 Tawana representations and warranties AMAL
Each of the statements set out in Schedule 6 is true and
correct in all material respects as at the Execution Date
and until 5.00pm on the Business Day immediately prior to
the Second Court Date.
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36392379_9
Condition Party entitled to
benefit
10 AMAL representations and warranties Tawana
Each of the statements set out in Schedule 7 is true and
correct in all material respects as at the Execution Date
and until 5.00pm on the Business Day immediately prior to
the Second Court Date.
11 ASX Quotation Both
ASX has, before 8.00am on the Second Court Date, given
approval for the admission of AMAL to the Official List and
for the Official Quotation of AMAL Shares, subject to any
conditions which ASX may reasonably require, including
implementation of the Scheme.
12 No termination Both
This agreement has not been terminated in accordance
with clause 20.
13 AMAL Shareholder approval Cannot be waived
AMAL Shareholders approve the AMAL Shareholder
Resolutions by the requisite majorities in accordance with
all applicable laws.
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36392379_9
Scheme Implementation Agreement
Schedule 3 Timetable* (clause 6.1)
Event Date
Announcement of Transaction and Permitted Transactions 5 April 2018
Tawana re-commences trading on ASX 9 April 2018
AMAL re-commences trading on SGX 9 April 2018
Lodge Scheme Booklet with ASIC 16 July 2018
First Court Date 9 August 2018
Printing and despatch of Scheme Booklet 14 August 2018
AMAL Shareholder meeting 11 September 2018
Scheme Meeting held 13 September 2018
Second Court Date 18 September 2018
Lodge Court order with ASIC (Effective Date) 19 September 2018
Record Date 26 September 2018
Implementation Date 3 October 2018
AMAL listing on ASX Official List 4 October 2018
* Timetable is indicative only
King & Wood Mallesons Scheme Implementation Agreement 65
36392379_9
Scheme Implementation Agreement
Schedule 4 Tawana’s obligations (clause 7.1)
1 (Scheme Booklet) as soon as practicable after the Execution Date, prepare the
Scheme Booklet (excluding AMAL lnformation and the lndependent Expert's
Report) and ensure that the Scheme Booklet (excluding AMAL lnformation and
the lndependent Expert's Report) complies with all applicable laws and in
particular the requirements of the Corporations Act, the Corporations
Regulations, the ASX Listing Rules and applicable ASIC Regulatory Guides.
2 (Further Tawana Information) provide to AMAL and Scheme Participants such
further or new Tawana Information as may arise after the Scheme Booklet has
been sent which is required to be disclosed to Tawana Shareholders (including
as may be necessary to ensure that the Tawana Information contained in the
Scheme Booklet is not, having regard to applicable disclosure requirements,
false, misleading or deceptive in any material respect (including because of any
material omission)), and to the extent it is reasonably practicable to do so,
provide AMAL with drafts of any documents that it proposes to issue to Tawana
Shareholders, consult with AMAL in relation to the content of those drafts and
(acting reasonably and in good faith) take into account any comments from
AMAL and its Representatives on those drafts.
3 (Review of AMAL Information) review the drafts of the AMAL Information and
AMAL SGX Information prepared by AMAL and provide comments on those
drafts in good faith and in a timely manner.
4 (Independent Expert) promptly appoint the Independent Expert and provide any
assistance and information reasonably requested by the Independent Expert to
enable it to prepare its report for inclusion in the Scheme Booklet.
5 (Provide a copy of the report) on receipt, provide AMAL with a copy of any
draft or final report received from the Independent Expert.
6 (Tawana Board recommendation) state in the Scheme Booklet and the
Announcement that each member of the Tawana Board recommends that the
Scheme Participants vote in favour of the Scheme and must not make any public
statement or take any action that contradicts or qualifies such recommendations,
subject only to there being no Tawana Superior Proposal and the lndependent
Expert concluding and continuing to conclude that the Scheme is in the best
interests of Tawana Shareholders.
7 (Tawana Director voting intentions) state in the Scheme Booklet and the
Announcement that each member of the Tawana Board intends to vote any
Tawana Shares in which they have a Relevant Interest in favour of the Scheme
and any other resolution submitted to Tawana Shareholders for their approval in
connection with the Transaction, subject only to the absence of a Tawana
Superior Proposal and the lndependent Expert concluding and continuing to
conclude that the Scheme is in the best interests of Tawana Shareholders.
8 (Directors’ voting) use reasonable endeavours to procure that:
(a) each member of the Tawana Board votes any Tawana Shares in which
they have a Relevant Interest in favour of the Scheme and any other
resolution submitted to Tawana Shareholders for their approval in
connection with the Transaction; and
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36392379_9
(b) each member of the Tawana Board does not change, withdraw or modify
his or her voting intention or recommendation,
unless a Tawana Superior Proposal arises or the Independent Expert concludes
in the Independent Expert's Report that the Scheme is not in the best interests of
Tawana Shareholders.
9 (Approval of draft Scheme Booklet) after the preparation of an advanced draft
of the Scheme Booklet suitable for review by ASIC, procure that a meeting of the
Tawana Board is convened to approve the draft Scheme Booklet to be provided
to ASIC for its review.
10 (Tawana SGX Information) at the request of AMAL and/or its officers or
advisors, prepare and promptly provide to AMAL for inclusion in the SGX
Documents such Tawana SGX Information as AMAL reasonably requires to
prepare and issue the SGX Documents (including any information required under
applicable laws and the applicable rules and policies of SGX (including the SGX
Listing Rules) and all other information to be furnished to the SGX as may be
necessary to implement the Transaction.
11 (Further Tawana SGX Information) promptly provide to AMAL such further or
new Tawana SGX Information as may arise after the SGX Documents have been
sent until the date of the AMAL Shareholder meeting to consider the AMAL
Shareholder Resolutions as may be necessary to ensure that the Tawana SGX
Information contained in the SGX Documents is not, having regard to applicable
disclosure requirements, false, misleading or deceptive in any material respect
(including because of any material omission).
12 (Approval of SGX Documents) procure that a meeting of the Tawana Board is
held to approve the Tawana SGX Information as being in a form appropriate for
provision to SGX for review and/or appropriate for despatch to AMAL
Shareholders (as applicable).
13 (Reasonable assistance) without limiting any obligation of Tawana under any
other provision of this agreement, provide any assistance or information
reasonably requested by AMAL in relation to the SGX Documents.
14 (Registry details) subject to the terms of the Scheme:
(a) provide all necessary information about the Scheme Participants to
AMAL which AMAL requires in order to assist AMAL to solicit votes at
the Scheme Meeting; and
(b) provide all necessary directions to the Registry to promptly provide any
information that AMAL reasonably requests in relation to the Register,
including any sub-register, and, where requested by AMAL, must
procure such information be provided in such electronic form as is
reasonably requested by AMAL.
15 (Proxies) except to the extent that Tawana would be in breach of Australian
privacy laws, cause the Registry to report to Tawana and AMAL on the status of
proxy forms received by the Registry for the Scheme Meeting:
(a) on the day that is 10 Business Days before the Scheme Meeting;
(b) on each Business Day following the day that is 10 Business Days before
the Scheme Meeting, up to the deadline for receipt of proxy forms; and
(c) immediately following such deadline,
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36392379_9
and to provide such other information as it may receive concerning the voting
intentions of Tawana Shareholders to AMAL.
16 (Section 411(17)(b) statement) apply to ASIC for the production of:
(a) a letter stating that ASIC does not intend to appear at the First Court
Date; and
(b) a statement pursuant to section 411(17)(b) of the Corporations Act
stating that ASIC has no objection to the Scheme.
17 (Court documents) consult with AMAL in relation to the content of the
documents required for the purposes of the Court hearings held for the purposes
of sections 411(1) and 411(4)(b) of the Corporations Act in relation to the
Scheme (including originating process, affidavits, submissions and draft minutes
of Court orders) and consider in good faith reasonable comments on, and
suggested amendments to, those documents from AMAL and its
Representatives.
18 (Court application) promptly apply to the Court for an order under
section 411(1) of the Corporations Act directing Tawana to convene the Scheme
Meeting.
19 (Approval of Scheme Booklet) after the conclusion of the review by ASIC of the
Scheme Booklet, procure that a meeting of the Tawana Board is convened to
approve the Scheme Booklet for registration with ASIC and despatch to Tawana
Shareholders.
20 (Registration of explanatory statement) request ASIC to register the
explanatory statement included in the Scheme Booklet in relation to the Scheme
in accordance with section 412(6) of the Corporations Act.
21 (Send Scheme Booklet) send the Scheme Booklet to Tawana Shareholders as
soon as practicable after the Court orders Tawana to convene the Scheme
Meeting.
22 (Scheme Meeting) convene the Scheme Meeting in accordance with any orders
made by the Court pursuant to section 411(1) of the Corporations Act and seek
the approval of Tawana Shareholders for the Scheme and, for this purpose, the
directors of Tawana must participate in reasonable efforts to promote the merits
of the Scheme, including meeting with key Scheme Participants at the
reasonable request of AMAL. Tawana shall not seek to adjourn or otherwise
change the timing of the Scheme Meeting without the prior written consent of
AMAL.
23 (Court order) as soon as practicable after Tawana Shareholders approve the
Scheme at the Scheme Meeting, apply to the Court for an order approving the
Scheme in accordance with sections 411(4)(b) and 411(6) of the Corporations
Act.
24 (Lodge) lodge with ASIC an office copy of any Court order approving the
Scheme as approved by the Tawana Shareholders at the Scheme Meeting in
accordance with section 411(10) of the Corporations Act.
25 (Scheme Consideration) close the Share Register as at 5.00pm on the Record
Date and determine entitlements to the Scheme Consideration in accordance
with the Scheme and the Deed Poll.
26 (Registration) register all transfers of Scheme Shares to AMAL on the
Implementation Date.
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36392379_9
27 (Listing) take all reasonable steps to maintain Tawana’s listing on ASX,
notwithstanding any suspension of the quotation of Tawana Shares, up to and
including the Implementation Date, including making appropriate applications to
ASX and ASIC.
28 (Delisting) if directed by AMAL at any time after the Effective Date, take all steps
necessary for Tawana to be:
(a) removed from the official list of ASX on the day immediately following the
Implementation Date, including lodging a request for removal with ASX
prior to the Implementation Date and satisfying any conditions
reasonably required by ASX for it to act on that request; and
(b) removed from the official list of JSE on the day immediately following the
Implementation Date, including lodging a request for removal with JSE
prior to the Implementation Date and satisfying any conditions
reasonably required by JSE for it to act on that request.
29 (AMAL ASX Listing) without limiting any obligation of Tawana under any other
provision of this agreement, provide any assistance or information reasonably
requested by AMAL in connection with the listing of AMAL on ASX, including:
(a) promptly preparing and providing AMAL with any information relating to
Tawana which is reasonably required by AMAL to seek approval for the
admission of AMAL to the Official List and for the Official Quotation of
AMAL Shares; and
(b) consent to the use by AMAL of the Scheme Booklet as or as part of the
document on which AMAL's application for admission to the Official List
is based and ensuring that any expert engaged to prepare a report for
the Scheme Booklet (including any technical experts) agree as part of
their engagement to consent to the use of their report in connection with
the listing of AMAL on ASX and provides that consent on request from
AMAL.
30 (Other steps) do all other things within its power as may be reasonably
necessary to give effect to the Transaction on a basis consistent with this
agreement and the orders of the Court approving the Scheme.
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36392379_9
Scheme Implementation Agreement
Schedule 5 AMAL’s obligations (clause 7.2)
1 (AMAL Notice of Meeting) as soon as practicable after the Execution Date,
prepare the AMAL Notice of Meeting (excluding Tawana SGX lnformation) and
ensure that the AMAL Notice of Meeting (excluding Tawana SGX lnformation)
complies with all applicable laws and the applicable rules and policies of SGX
(including the SGX Listing Rules).
2 (AMAL Information) at the request of Tawana and/or its officers or advisors,
prepare and promptly provide to Tawana for inclusion in the Scheme Booklet
such AMAL Information as Tawana reasonably requires to prepare and issue the
Scheme Booklet (including any information required under applicable laws and in
particular the requirements of the Corporations Act, the Corporations
Regulations, the ASX Listing Rules and applicable ASIC Regulatory Guides) and
all other information to be furnished to ASX as may be necessary to implement
the Transaction.
3 (Further AMAL Information) promptly provide to Tawana such further or new
AMAL Information as may arise after the Scheme Booklet has been sent until the
date of the Scheme Meeting as may be necessary to ensure that the AMAL
Information contained in the Scheme Booklet is not, having regard to applicable
disclosure requirements, false, misleading or deceptive in any material respect
(including because of any material omission).
4 (Review of Tawana SGX Information) review the drafts of the Tawana SGX
Information prepared by Tawana and provide comments on those drafts in good
faith and in a timely manner.
5 (Approval of draft for ASIC) as soon as reasonably practicable after the
preparation of an advanced draft of the Scheme Booklet suitable for review by
ASIC, procure that a meeting of the AMAL Board is held to approve the AMAL
Information as being in a form appropriate for provision to ASIC for review.
6 (Approval of Scheme Booklet) as soon as reasonably practicable after the
conclusion of the review by ASIC of the Scheme Booklet, procure that a meeting
of the AMAL Board is held to approve the AMAL Information as being in a form
appropriate for despatch to Tawana Shareholders, subject to approval of the
Court.
7 (Representation) procure that AMAL is represented by counsel at the Court
hearings convened for the purposes of sections 411(1) and 411(4)(b) of the
Corporations Act in relation to the Scheme, at which, through its counsel, AMAL
will undertake (if requested by the Court) to do all things and take all steps within
its power that may be necessary to ensure the fulfilment of its obligations under
the Scheme, and, to the extent that leave of the Court is required for AMAL to be
represented at those Court hearings, apply for that leave.
8 (Approval of SGX Documents) procure that a meeting of the AMAL Board is
convened to approve the SGX Documents as being in a form appropriate for
provision to SGX for review and/or appropriate for despatch to AMAL
Shareholders (as applicable).
9 (Independent Expert information) provide any assistance or information
reasonably requested by the Independent Expert in connection with the
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36392379_9
preparation of the Independent Expert’s report to be included in the Scheme
Booklet.
10 (Deed Poll) prior to the First Court Date, sign and deliver the Deed Poll and
obtain any due execution opinion required for provision to the Court, confirming
the Deed Poll was duly executed by AMAL and is binding on AMAL in
accordance with its terms.
11 (Scheme Consideration) if the Scheme becomes Effective, procure the
provision of the Scheme Consideration in the manner and amount contemplated
by clause 4.2 and the terms of the Scheme and the Deed Poll.
12 (Share transfer) if the Scheme becomes Effective, accept a transfer of the
Scheme Shares as contemplated by clause 4.1(a).
13 (Review of Scheme Booklet) review the drafts of the Scheme Booklet prepared
by Tawana and provide comments on those drafts in good faith and in a timely
manner.
14 (Reasonable assistance) without limiting any obligation of AMAL under any
other provision of this agreement, providing any assistance or information
reasonably requested by Tawana in relation to the Scheme.
15 (Regulatory notifications) without limiting any obligations of AMAL under any
other provision of this agreement, lodging with each Regulatory Authority within
the relevant time periods all necessary documentation and filings required by law
to be lodged by AMAL in relation to the Scheme and the transactions
contemplated by this agreement.
16 (No AMAL Prescribed Event) ensure that no AMAL Prescribed Event occurs
during the period commencing on the Execution Date and ending at 8.00am on
the Second Court Date and if an AMAL Prescribed Event occurs, immediately
inform Tawana.
17 (On-sale relief) apply to ASIC for relief to allow the on-sale of AMAL Shares that
constitute the Option Consideration without disclosure.
18 (AMAL Share listing on SGX) as soon as practicable, apply for the
Consideration Shares that are to be issued under the Scheme to be conditionally
approved for listing on the official list of the Catalist, subject to the customary
listing requirements, and do everything reasonably necessary to advance such
application.
19 (AMAL Share listing on ASX) as soon as practicable, apply to ASX for the ASX
Consideration Shares that are to be issued under the Scheme to be conditionally
approved for Official Quotation on ASX, subject to the Scheme becoming
effective, and use reasonable endeavours to obtain ASX’s approval for Official
Quotation by 8.00am on the day after the Second Court Date, and do everything
reasonably necessary to advance such application, including applying for (and
making submissions in respect of) all such waivers of the ASX Listing Rules as
may be reasonably expected to be obtained in the circumstances.
20 (Trading) do everything reasonably necessary to ensure that trading on the SGX
and ASX in the AMAL Shares issued under the Scheme, is permitted to
commence by the first trading day following the Implementation Date (or such
later date as ASX or SGX, as applicable, requires).
21 (Other steps) do all things within its power as may be reasonably necessary to
give effect to the Transaction on a basis consistent with this agreement and the
orders of the Court approving the Scheme.
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36392379_9
Scheme Implementation Agreement
Schedule 6 Tawana’s representations and
warranties (clause 18.1)
1 (Incorporation) it is a valid existing corporation registered under the laws of its
place of incorporation.
2 (Execution) the execution and delivery of this agreement has been properly
authorised by all necessary corporate actions of Tawana.
3 (Corporate power) it has full corporate power and lawful authority to execute
and deliver this agreement and to consummate and perform or cause to be
performed its obligations under this agreement in accordance with its terms.
4 (Binding obligations) (subject to laws generally affecting creditors’ rights and
the principles of equity) this agreement constitutes legal, valid and binding
obligations on it.
5 (No conflict) this agreement does not and will not conflict with or result in the
breach of or default under any provision of its constituent documents or any
material term or provision of any order, judgment, or law to which it is a party or
is subject to or bound.
6 (Tawana Information) the Tawana Information contained in the Scheme
Booklet, as at the date of the Scheme Booklet, will comply in all material respects
with the requirements of applicable laws and in particular the requirements of the
Corporations Act, the Corporations Regulations, the ASX Listing Rules and
applicable ASIC Regulatory Guides.
7 (Tawana SGX Information) the Tawana SGX Information provided in
accordance with this agreement and included in the SGX Documents, as at the
date of the SGX Documents, will comply in all material respects with the
requirements of applicable laws and the applicable rules and policies of SGX
(including the SGX Listing Rules) and will not contain any statement which is
materially misleading or deceptive nor contain any material omission having
regard to applicable disclosure requirements.
8 (Reliance - Tawana Information) the Tawana Information contained in the
Scheme Booklet will be included in good faith and on the understanding that
AMAL and its directors will rely on that information for the purposes of
considering and approving the AMAL Information in the Scheme Booklet before it
is despatched, approving the entry into the Deed Poll, implementing the Scheme
and seeking admission of AMAL to the Official List.
9 (Reliance - Tawana SGX Information) the Tawana SGX Information provided to
AMAL for inclusion in the SGX Documents will be provided in good faith and on
the understanding that AMAL and its directors will rely on that information for the
purposes of including that information in the SGX Documents.
10 (Further information) Tawana will, as a continuing obligation, provide to AMAL:
(a) all such further or new information which may arise after the date of the
Scheme Booklet until the date of the Scheme Meeting which may be
necessary to ensure that there would be no breach of clause 6 if it
applied as at the date upon which that information arose; and
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36392379_9
(b) all such further or new information which may arise after the date of
despatch of the AMAL Notice of Meeting until the date of the AMAL
Shareholder meeting to consider the AMAL Shareholder Resolutions
which may be necessary to ensure that there would be no breach of
clause 7 if it applied as at the date upon which that information arose.
11 (Disclosure)
(a) the information Fairly Disclosed by or on behalf of Tawana to AMAL or
its Representatives has been collated and prepared in good faith and
with all reasonable care and skill and, so far as Tawana is aware, such
materials are materially accurate; and
(b) as far as Tawana is aware, as at the Execution Date there is no
information:
(i) which has not been disclosed by Tawana or its Representatives
to AMAL;
(ii) which has not been announced on ASX in the two years up to
and including the Execution Date; or
(iii) of which AMAL and its Representatives are not aware, including
by reason of their involvement with the Bald Hill Joint Venture,
the disclosure of which might reasonably be expected to have resulted in
AMAL not entering into this agreement at all, or only entering into this
agreement on materially different terms.
12 (Continuous disclosure) Tawana is in compliance in all material respects with
its continuous disclosure obligations under the ASX Listing Rules and is not
relying on the carve-out in ASX Listing Rule 3.1A to withhold any information
from disclosure.
13 (Provision of information to Independent Expert) all information provided by
or on behalf of Tawana to the Independent Expert to enable the Independent
Expert’s report to be included in the Scheme Booklet to be prepared and
completed will be provided in good faith and on the understanding that, to the
extent accepted by the Independent Expert, the Independent Expert will rely
upon that information for the purpose of preparing the Independent Expert’s
report. All Tawana Information provided to the independent qualified person to
enable the qualified person’s report to be included in the AMAL Shareholders’
Circular will be provided in good faith and on the understanding that such
independent qualified person will rely upon that information for the purpose of
preparing its qualified person’s report.
14 (Compliance) so far as the Tawana Board is aware, Tawana and its Subsidiaries
have complied in all material respects with all Australian and foreign laws and
regulations applicable to them and orders of Australian and foreign governmental
agencies having jurisdiction over them and have all material licenses,
authorisations, permits and franchises necessary for them to conduct their
respective businesses as presently being conducted.
15 (No default) neither it nor any of its Subsidiaries:
(a) is in default under any document, agreement or instrument binding on it
or its assets; nor
(b) has anything occurred which is or would with the giving of notice or lapse
of time constitute an event of default, prepayment event or similar event,
or give another party thereto a termination right or right to accelerate any
King & Wood Mallesons Scheme Implementation Agreement 73
36392379_9
right or obligation, under any such document or agreement with such an
effect,
in each case where such default, occurrence or event would result in a Tawana
Material Adverse Change.
16 (Securities) Tawana’s issued securities as at the Execution Date are:
504,977,471 Tawana Shares
400,000 Unlisted options exercisable at $0.178 on or before 26 May 2018
2,500,000 Unlisted options exercisable at $0.035 on or before 14 June 2018
3,000,000 Unlisted options exercisable at $0.06 on or before 30 June 2019
1,000,000 Unlisted options exercisable at $0.06 on or before 30 June 2019
1,250,000 Unlisted options exercisable at $0.13 on or before 7 January 2020
1,000,000 Unlisted options exercisable at $0.16 on or before 15 March 2020
500,000 Unlisted options exercisable at $0.18 on or before 8 May 2020
500,000 Unlisted options exercisable at $0.23 on or before 27 March 2020
3,000,000 Unlisted options exercisable at $0.20 on or before 12 April 2020
3,000,000 Unlisted options exercisable at $0.25 on or before 12 April 2020
3,000,000 Unlisted options exercisable at $0.30 on or before 12 April 2020
500,000 Unlisted options exercisable at $0.20 on or before 15 June 2020
7,673,470 Unlisted options exercisable at $0.30625 on or before 19 July 2020
2,000,000 Unlisted options exercisable at $0.20 on or before 20 December
2020
500,000 Unlisted options exercisable at $0.22 and $0.24 on or before 21
August 2020
and it has not issued or agreed to issue any other equity securities or instruments
which are still outstanding and which may convert into Tawana Shares, other
than the Metalicity Shares or the Tawana Employee Options.
17 (No Encumbrances) there is no material Encumbrance over all or any of its
assets or revenues other than as Fairly Disclosed to AMAL prior to the Execution
Date, other than any Encumbrance granted by Tawana or Lithco to secure
obligations under the Proposed Facility.
18 (Insolvency) neither it nor any of its Related Bodies Corporate is Insolvent.
19 (Material Contracts) on the Execution Date, neither it nor any of its Subsidiaries
is in material default under any Material Contract to which a member of the
Tawana Group is a party nor has anything occurred which is or would be with the
giving of notice or lapse of time constitute an event of default, prepayment or
similar event, or give another party thereto a termination right or right to
accelerate any material right or obligation, under any such Material Contract with
such an effect. For the purposes of this paragraph, “Material Contract” does not
include the Bald Hill JVA.
20 (No Claims) other than as Fairly Disclosed by Tawana to AMAL or disclosed to
ASX prior to the Execution Date, as at the Execution Date there are no existing
or threatened Claims, litigation, disputes of more than $250,000, in each case
where written notice has been given or proceedings against a member of the
Tawana Group or their directors.
21 (Exchange Ratio) all information provided by Tawana or its Representatives by
way of inputs to the model prepared to for the purposes of determining the
Exchange Ratio is accurate and not misleading in any material particular.
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36392379_9
Scheme Implementation Agreement
Schedule 7 AMAL’s representations and
warranties (clause 18.5)
1 (Incorporation) it is a valid existing corporation registered under the laws of its
place of incorporation.
2 (Execution) the execution and delivery of this agreement has been properly
authorised by all necessary corporate actions of AMAL.
3 (Corporate power) it has full corporate power and lawful authority to execute
and deliver this agreement and to consummate and perform or cause to be
performed its obligations under this agreement in accordance with its terms.
4 (Binding obligations) (subject to laws generally affecting creditors’ rights and
the principles of equity) this agreement constitutes legal, valid and binding
obligations on it.
5 (No conflict) this agreement does not and will not conflict with or result in the
breach of or default under any provision of its constituent documents or any
material term or provision of any order, judgment, or law to which it is a party or
is subject to or bound.
6 (AMAL Information) the AMAL Information provided in accordance with this
agreement and included in the Scheme Booklet, as at the date of the Scheme
Booklet, will comply in all material respects with the requirements of applicable
laws and in particular the requirements of the Corporations Act, the Corporations
Regulations, the ASX Listing Rules and applicable ASIC Regulatory Guides and
will not contain any statement which is materially misleading or deceptive nor
contain any material omission having regard to applicable disclosure
requirements.
7 (AMAL SGX Information) the AMAL SGX Information contained in the SGX
Documents will comply in all material respects with the requirements of
applicable laws and the applicable rules and policies of SGX (including the SGX
Listing Rules).
8 (Reliance - AMAL Information) the AMAL Information provided to Tawana for
inclusion in the Scheme Booklet will be provided in good faith and on the
understanding that Tawana and its directors will rely on that information for the
purposes of including that information in the Scheme Booklet.
9 (Reliance - AMAL SGX Information) the AMAL SGX Information contained in
the SGX Documents will be included in good faith and on the understanding that
Tawana and its directors will rely on that information for the purposes of
considering and approving the Tawana SGX Information in the SGX Documents.
10 (Further information) AMAL will, as a continuing obligation, provide to Tawana:
(a) all such further or new information which may arise after the date of the
Scheme Booklet until the date of the Scheme Meeting which may be
necessary to ensure that there would be no breach of clause 6 if it
applied as at the date on which that information arose; and
(b) all such further or new information which may arise after the date of
despatch of the AMAL Notice of Meeting until the date of the AMAL
Shareholder meeting to consider the AMAL Shareholder Resolutions
which may be necessary to ensure that there would be no breach of
clause 7 if it applied as at the date upon which that information arose.
King & Wood Mallesons Scheme Implementation Agreement 75
36392379_9
11 (Disclosure)
(a) the information Fairly Disclosed by or on behalf of AMAL to Tawana or
its Representatives has been collated and prepared in good faith and
with all reasonable care and skill and, so far as AMAL is aware, such
materials are materially accurate; and
(b) as far as AMAL is aware, as at the Execution Date there is no
information:
(i) which has not been disclosed by AMAL or its Representatives to
Tawana;
(ii) which has not been announced on SGX in the two years up to
and including the Execution Date; or
(iii) of which Tawana and its Representatives are not aware,
including by reason of their involvement with the Bald Hill Joint
Venture,
the disclosure of which might reasonably be expected to have resulted in
Tawana not entering into this agreement at all, or only entering into this
agreement on materially different terms.
12 (Continuous disclosure) AMAL is in compliance in all material respects with its
continuous disclosure obligations under the SGX Listing Rules and is not relying
on the carve-out in the SGX Listing Rules to withhold any information from
disclosure.
13 (Provision of information to Independent Expert) all information provided by
or on behalf of AMAL to the Independent Expert to enable the Independent
Expert’s report to be included in the Scheme Booklet to be prepared and
completed will be provided in good faith and on the understanding that, to the
extent accepted by the Independent Expert, the Independent Expert will rely on
that information for the purpose of preparing the Independent Expert’s report.
14 (Compliance) so far as the AMAL Board is aware, AMAL has complied in all
material respects with all Australian and foreign laws and regulations applicable
to them and orders of Australian and foreign governmental agencies having
jurisdiction over them and have all material licenses, authorisations, permits and
franchises necessary for them to conduct their respective businesses as
presently being conducted.
15 (No default) AMAL:
(a) is not in default under any document, agreement or instrument binding
on it or its assets; and
(b) nothing has occurred which is or would with the giving of notice or lapse
of time constitute an event of default, prepayment event or similar event,
or give another party thereto a termination right or right to accelerate any
right or obligation, under any such document or agreement with such an
effect,
in each case where such default, occurrence or event would result in an AMAL
Material Adverse Change.
King & Wood Mallesons Scheme Implementation Agreement 76
36392379_9
16 (Securities) AMAL’s issued securities as at the Execution Date are:
555,573,988 AMAL Shares
3,800,000 Unlisted options exercisable at S$0.24 on or before 24 May 2020
3,800,000 Unlisted options exercisable at S$0.30 on or before 24 May 2020
3,800,000 Unlisted options exercisable at S$0.36 on or before 24 May 2020
15,600,000 AMAL Lender Options
17 (Regulatory Approvals) other than the approvals required to be obtained under
items 1(b), 1(c) and 1(d) of Schedule 2, no approvals of any government,
governmental authority, minister, department or organisation of any government,
or any regulatory organisation established under statute in Singapore are
required to be obtained by AMAL in order to execute and perform its obligations
under this agreement (including provision of the Scheme Consideration).
18 (No Encumbrances) there is no material Encumbrance over all or any of its
assets or revenues other than as Fairly Disclosed to Tawana prior to the
Execution Date.
19 (Insolvency) neither it nor any of its related Bodies Corporate is Insolvent.
20 (Scheme Consideration) if the Scheme becomes Effective, it will be able to
provide the Scheme Consideration under the Scheme and the Deed Poll, subject
to the receipt of any applicable SGX and AMAL Shareholder approvals.
21 (Material Contracts) on the Execution Date, AMAL is not in material default
under any Material Contract to which AMAL is a party and nothing has occurred
which is or would be with the giving of notice or lapse of time constitute an event
of default, prepayment or similar event, or give another party thereto a
termination right or right to accelerate any material right or obligation, under any
such Material Contract with such an effect. For the purposes of this paragraph,
“Material Contract” does not include the Bald Hill JVA.
22 (No Claims) other than as Fairly Disclosed by AMAL to Tawana or disclosed to
ASX prior to the Execution Date, as at the Execution Date there are no existing
or threatened Claims, litigations, disputes of more than $250,000, in each case
where written notice has been given or proceedings against AMAL or its
directors.
23 (Exchange Ratio) all information provided by AMAL or its Representatives by
way of inputs to the model prepared to for the purposes of determining the
Exchange Ratio is accurate and not misleading in any material particular.
King & Wood Mallesons Scheme Implementation Agreement 77
36392379_9
Scheme Implementation Agreement
Signing page
DATED: 5 April 2018
EXECUTED by ALLIANCE MINERAL )
ASSETS LIMITED ACN 147 393 735 in )
accordance with section 127(1) of the )
Corporations Act 2001 (Cth) by )
authority of its directors: )
) [Signed ‘Pauline Gately’]
[Signed ‘Shaun Menezes’] ) ...............................................................
............................................................... ) Signature of director
Signature of company secretary )
) PAULINE GATELY
SHAUN MENEZES ) ...............................................................
............................................................... ) Name of director
Name of company secretary (block
letters)
EXECUTED by TAWANA )
RESOURCES NL ACN 085 166 721 in )
accordance with section 127(1) of the )
Corporations Act 2001 (Cth) by )
authority of its directors: )
) [Signed ‘Alexei Fedotov’]
[Signed ‘Mark Calderwood’] ) ...............................................................
............................................................... ) Signature of company secretary
Signature of director )
) ALEXEI FEDOTOV
MARK CALDERWOOD ) ...............................................................
............................................................... ) Name of company secretary
Name of director (block letters)
King & Wood Mallesons Scheme Implementation Agreement
Scheme Implementation Agreement
Annexure A - Scheme
King & Wood Mallesons Scheme Implementation Agreement
Scheme of Arrangement
Dated 2018
Tawana Resources NL (Tawana)
Scheme Participants
King & Wood Mallesons
Level 30
QV1 Building
250 St Georges Terrace
Perth WA 6000
Australia
T +61 8 9269 7000
F +61 8 9269 7999
DX 210 Perth
www.kwm.com
Scheme of Arrangement
Contents
Details 1
General terms 3
1 Definitions and interpretation 3
1.1 Definitions 3
1.2 Reference to certain general terms 6
1.3 Headings 6
2 Preliminary 7
2.1 Tawana 7
2.2 AMAL 7
2.3 If Scheme becomes Effective 7
2.4 Scheme Implementation Agreement 7
2.5 Deed Poll 7
3 Conditions precedent 8
3.1 Conditions precedent to Scheme 8
3.2 Conditions precedent and operation of clause 5 8
3.3 Certificate in relation to conditions precedent 8
4 Scheme 8
4.1 Effective Date 8
4.2 End Date 9
5 Implementation of Scheme 9
5.1 Lodgement of Court orders with ASIC 9
5.2 Transfer and registration of Scheme Shares 9
5.3 Timing 9
5.4 Excluded Shareholders 9
5.5 Entitlement to Scheme Consideration 10
5.6 Title and rights in Tawana Shares 10
5.7 Scheme Participants’ agreements 10
5.8 Warranty by Scheme Participants 10
5.9 Transfer free of Encumbrances 10
5.10 Appointment of AMAL as sole proxy 11
6 Scheme Consideration 11
6.1 Election procedure 11
6.2 Consideration under the Scheme 12
6.3 Rounding entitlements 12
6.4 Satisfaction of obligations 12
6.5 Issuance of Scheme Consideration 13
6.6 Joint holders 13
6.7 Binding instruction or notifications 13
6.8 Ineligible Shareholders 14
6.9 Status of AMAL Shares 15
King & Wood Mallesons Scheme of Arrangement i
7 Dealings in Scheme Shares 15
7.1 Determination of Scheme Participants 15
7.2 Register 15
7.3 No disposals after Record Date 15
7.4 Maintenance of Tawana Register 16
7.5 Effect of holding statements 16
7.6 Details of Scheme Participants 16
7.7 Quotation of Tawana Shares 16
8 General Scheme provisions 16
8.1 Power of attorney 16
8.2 Variations, alterations and conditions 17
8.3 Further action by Tawana 17
8.4 Authority and acknowledgement 17
8.5 No liability when acting in good faith 17
8.6 Enforcement of Deed Poll 17
8.7 Stamp duty 17
8.8 Notices 17
9 Governing law 18
9.1 Governing law 18
9.2 Jurisdiction 18
King & Wood Mallesons Scheme of Arrangement ii
Scheme of Arrangement
Details
Parties Tawana and Scheme Participants
Tawana Name Tawana Resources NL
ABN 69 085 166 721
Address Level 3, 20 Parkland Road, Osborne Park WA
6017
Email mark.calderwood@tawana.com.au
Fax +61 8 9489 2600
Attention Mr Mark Calderwood (Managing Director)
Scheme Name Each person registered as a holder of fully paid
Participants ordinary shares in Tawana as at 5.00pm on the
Record Date other than the Excluded
Shareholders
Recitals A Tawana is a public no liability company incorporated in
Australia and registered in Western Australia, Australia and
is admitted to the official list of the ASX.
B AMAL is a public company limited by shares incorporated in
Australia and registered in Victoria, Australia and is
admitted to the official list of the SGX.
C AMAL and Tawana have entered into a scheme
implementation agreement dated [] 2018 (Scheme
Implementation Agreement) pursuant to which, amongst
other things, Tawana has agreed to propose this Scheme to
Tawana Shareholders, and each of AMAL and Tawana has
agreed to take certain steps to give effect to this Scheme.
D If this Scheme becomes Effective, then:
(a) all of the Scheme Shares will be transferred to
AMAL and the Scheme Consideration will be
issued to the Scheme Participants in accordance
with the provisions of this Scheme; and
(b) Tawana will enter the name and address of AMAL
in the Register as the holder of all of the Scheme
Shares.
King & Wood Mallesons Scheme of Arrangement 1
E AMAL has entered into the Deed Poll for the purpose of
covenanting in favour of Scheme Participants to perform its
obligations under this Scheme.
Governing law Western Australia
Date of See Signing page
agreement
King & Wood Mallesons Scheme of Arrangement 2
General terms
1 Definitions and interpretation
1.1 Definitions
In this Scheme:
AMAL means Alliance Mineral Assets Limited ABN 56 147 393 735.
AMAL Register means register of members of AMAL maintained by or on behalf
of AMAL in accordance with section 168(1) of the Corporations Act.
AMAL Share means a fully paid ordinary share in the capital of AMAL.
ASIC means the Australian Securities and Investments Commission.
ASX means ASX Limited ABN 98 008 624 691 or the Australian Securities
Exchange, as appropriate.
ASX Consideration Shares means all AMAL Shares issued as Scheme
Consideration (other than AMAL Shares the subject of a valid election by a
Scheme Participant under clause 6.1), being AMAL Shares held by a Scheme
Participant on, and recorded in, the AMAL Register (and not in the Depository
Register) upon their issue.
ASX Listing Rules means the listing rules of the ASX.
Business Day means a business day as defined in the ASX Listing Rules.
Catalist means the sponsor-supervised board of the SGX.
Corporations Act means the Corporations Act 2001 (Cth).
Court means [the Federal Court of Australia / the Supreme Court of Western
Australia].
Deed Poll means the deed poll dated [] 2018 executed by AMAL substantially
in the form of Annexure B of the Scheme Implementation Agreement or as
otherwise agreed by AMAL and Tawana under which AMAL covenants in favour
of each Scheme Participant to perform its obligations under this Scheme.
Depository means The Central Depository (Pte) Limited.
Depository Agent has the meaning ascribed to the term in section 81SF of the
Securities and Futures Act, Chapter 289 of Singapore.
Depository Register has the meaning ascribed to the term in section 81SF of
the Securities and Futures Act, Chapter 289 of Singapore.
Effective means the coming into effect, pursuant to section 411(10) of the
Corporations Act, of the order of the Court made under section 411(4)(b) of the
Corporations Act in relation to this Scheme, but in any event at no time before an
office copy of the order of the Court is lodged with ASIC.
King & Wood Mallesons Scheme of Arrangement 3
Effective Date means the date on which the Scheme becomes Effective.
Election Form means the form pursuant to which Scheme Participants (other
than Ineligible Shareholders) may elect to receive their Scheme Consideration in
the form of SGX Consideration Shares.
Electing Scheme Participant means a Scheme Participant who has made a
valid election under clause 6.1 to receive the Scheme Consideration in the form
of SGX Consideration Shares.
Encumbrance means any mortgage, lien, charge, pledge, encumbrance,
assignment by way of security, security interest (including any 'security interest'
within the meaning of section 12 of the Personal Property Securities Act 2009
(Cth)), title retention, preferential right or trust arrangement, contractual right of
set-off, claim, covenant, or any other security arrangement or any other
arrangement having the same effect, whether registered or unregistered.
End Date means 31 October 2018 or such other date as is agreed in writing by
AMAL and Tawana.
Excluded Shareholder means AMAL and its associates.
Excluded Shares means Tawana Shares held by Excluded Shareholders on the
Record Date.
Implementation Date means the fifth Business Day following the Record Date or
such other date as is agreed in writing by Tawana and AMAL.
Ineligible Shareholder means a Scheme Participant whose address shown in
the Register on the Record Date is a place outside Australia and its external
territories, New Zealand, Hong Kong, and Singapore and South Africa, unless
AMAL determines that it is lawful and not unduly onerous or impracticable to
issue or provide a Scheme Participant with an address outside those jurisdictions
with AMAL Shares under the Scheme.
JSE means JSE Limited or the financial market operated by it known as the
Johannesburg Stock Exchange, as appropriate.
Official Quotation means official quotation by ASX in accordance with the ASX
Listing Rules.
Record Date means the fifth Business Day following the Effective Date or such
other date as Tawana and AMAL agree in writing.
Register means the share register of Tawana maintained by or on behalf of
Tawana in accordance with section 168(1) of the Corporations Act.
Registered Address means, in relation to a Tawana Shareholder, the address
shown in the Register.
Regulatory Authority means:
(a) ASX, ASIC, JSE and SGX;
(b) the Takeovers Panel;
(c) a government or governmental, semi-governmental or judicial entity or
authority in Australia;
King & Wood Mallesons Scheme of Arrangement 4
(d) a minister, department, office, commission, delegate, instrumentality,
agency, board, authority or organisation of any government in Australia;
and
(e) any regulatory organisation established under statute in Australia.
Sale Agent means an entity appointed by AMAL to sell the AMAL Shares that
are attributable to Ineligible Shareholders.
Scheme means this scheme of arrangement under Part 5.1 of the Corporations
Act between Tawana and Scheme Participants under which all of the Scheme
Shares will be transferred to AMAL as described in clause 6 of this Scheme, in
consideration for the Scheme Consideration, subject to any amendments or
conditions made or required by the Court pursuant to section 411(6) of the
Corporations Act to the extent they are approved in writing by Tawana and AMAL
in accordance with clause 8.2 of this Scheme.
Scheme Consideration means the consideration to be provided to Scheme
Participants under the terms of this Scheme in the form of ASX Consideration
Shares or, if a Scheme Participant has made a valid election under clause 6.1, in
the form of SGX Consideration Shares.
Scheme Implementation Agreement means the scheme implementation
agreement dated [] between Tawana and AMAL under which, amongst other
things, Tawana has agreed to propose this Scheme to Tawana Shareholders,
and each of AMAL and Tawana has agreed to take certain steps to give effect to
this Scheme.
Scheme Meeting means the meeting of Tawana Shareholders ordered by the
Court to be convened pursuant to section 411(1) of the Corporations Act at which
Tawana Shareholders will vote on this Scheme.
Scheme Participant means a person registered as a Tawana Shareholder at
5.00pm on the Record Date, other than an Excluded Shareholder.
Scheme Shares means all Tawana Shares on issue as at 5.00pm on the Record
Date, other than the Excluded Shares.
Scheme Transfer means, for each Scheme Participant, a duly completed and
executed proper instrument of transfer of the Scheme Shares held by that
Scheme Participant for the purposes of section 1071B of the Corporations Act,
which may be a master transfer of all Scheme Shares.
Second Court Date means the day on which the Court makes an order pursuant
to section 411(4)(b) of the Corporations Act approving the Scheme.
SGX means Singapore Exchange Securities Trading Limited.
SGX Consideration Shares means the AMAL Shares issued as Scheme
Consideration in respect of which a Scheme Participant has made a valid election
under clause 6.1, being AMAL Shares which will be held by a Scheme Participant
as recorded in the Depository Register.
SGX Securities Account means, in respect of an Electing Scheme Participant,
the relevant securities account maintained by the Electing Scheme Participant
with the Depository or a Depository Agent.
Tawana Option means an option issued by Tawana in respect of Tawana
Shares, whether vested or unvested.
Tawana Share means a fully paid ordinary share in the capital of Tawana.
King & Wood Mallesons Scheme of Arrangement 5
Tawana Shareholder means each person registered in the Register as a holder
of Tawana Shares.
1.2 Reference to certain general terms
Unless the contrary intention appears, a reference in this Scheme to:
(a) (variations or replacement) a document, agreement (including this
Scheme) or instrument is a reference to that document, agreement or
instrument as amended, consolidated, supplemented, novated or
replaced;
(b) (clauses, annexures and schedules) a clause, annexure or schedule is
a reference to a clause in or annexure or schedule of this Scheme;
(c) (reference to statutes) a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(d) (law) law means common law, principles of equity, and laws made by
parliament (and laws made by parliament include State, Territory and
Commonwealth laws and regulations and other instruments under them,
and consolidations, amendments, re-enactments or replacements of any
of them);
(e) (singular includes plural) the singular includes the plural and vice
versa;
(f) (party) a party means a party to this Scheme;
(g) (person) the word “person” includes an individual, a firm, a body
corporate, a partnership, a joint venture, an unincorporated body or
association, or any Regulatory Authority;
(h) (executors, administrators, successors) a particular person includes a
reference to the person’s executors, administrators, successors,
substitutes (including persons taking by novation) and assigns;
(i) (dollars) Australian dollars, dollars, A$ or $ is a reference to the lawful
currency of Australia;
(j) (calculation of time) a period of time dating from a given day or the day
of an act or event, is to be calculated exclusive of that day;
(k) (reference to a day) a day is to be interpreted as the period of time
commencing at midnight and ending 24 hours later;
(l) (meaning not limited) the words “include”, “including”, “for example” or
“such as” when introducing an example, do not limit the meaning of the
words to which the example relates to that example or examples of a
similar kind; and
(m) (time of day) time is a reference to Perth, Western Australia time.
1.3 Headings
Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this Scheme.
King & Wood Mallesons Scheme of Arrangement 6
2 Preliminary
2.1 Tawana
Tawana is:
(a) a public no liability company;
(b) incorporated in Australia and registered in Western Australia; and
(c) admitted to the official list of the ASX and JSE, and Tawana Shares are
officially quoted on the securities market conducted by ASX and JSE.
As at [] 2018, Tawana’s issued securities comprise:
(a) [] Tawana Shares; and
(b) [] Tawana Options.
2.2 AMAL
AMAL is:
(a) a public company limited by shares;
(b) incorporated in Australia and registered in Victoria; and
(c) admitted to the official list of Catalist and AMAL Shares are officially
quoted on the securities market conducted by the SGX.
2.3 If Scheme becomes Effective
If this Scheme becomes Effective:
(a) in consideration of the transfer to AMAL of each Scheme Share held by
a Scheme Participant, AMAL will, on the Implementation Date, provide to
each Scheme Participant the Scheme Consideration in accordance with
the terms of the Scheme Implementation Agreement, this Scheme and
the Deed Poll;
(b) all Scheme Shares, and all the rights and entitlements attaching to them,
will be transferred to AMAL on the Implementation Date; and
(c) Tawana will enter the name of AMAL in the Register in respect of all
Scheme Shares transferred to AMAL in accordance with the terms of this
Scheme.
2.4 Scheme Implementation Agreement
By executing the Scheme Implementation Agreement, Tawana and AMAL have
agreed to implement the terms of this Scheme.
2.5 Deed Poll
This Scheme attributes actions to AMAL but does not itself impose an obligation
on AMAL to perform those actions. AMAL has undertaken in favour of each
Scheme Participant, by executing the Deed Poll, that it will fulfil its obligations
under the Scheme Implementation Agreement and do all acts and things
necessary or desirable on its part to give full effect to this Scheme, including to
King & Wood Mallesons Scheme of Arrangement 7
issue to each Scheme Participant the Scheme Consideration for each Scheme
Share held by the Scheme Participant.
3 Conditions precedent
3.1 Conditions precedent to Scheme
This Scheme is conditional on, and will have no force or effect until, the
satisfaction of each of the following conditions precedent:
(a) as at 8.00am on the Second Court Date, neither the Scheme
Implementation Agreement nor the Deed Poll having been terminated in
accordance with their terms;
(b) all of the conditions precedent in schedule 2 of the Scheme
Implementation Agreement having been satisfied or waived (other than
the condition precedent relating to approval of the Scheme by the Court
in item 3) in accordance with the terms of the Scheme Implementation
Agreement;
(c) the Court having approved this Scheme, with or without any modification
or condition, pursuant to section 411(4)(b) of the Corporations Act, and,
if applicable, Tawana and AMAL having accepted in writing any
modification or condition made or required by the Court under section
411(6) of the Corporations Act and any such conditions having been
satisfied or waived; and
(d) the coming into effect, pursuant to section 411(10) of the Corporations
Act, of the orders of the Court made under section 411(4)(b) of the
Corporations Act (and, if applicable, section 411(6) of the Corporations
Act) in relation to this Scheme.
3.2 Conditions precedent and operation of clause 5
The satisfaction of each condition of clause 3.1 of this Scheme is a condition
precedent to the operation of clause 5 of this Scheme.
3.3 Certificate in relation to conditions precedent
Tawana and AMAL must each provide to the Court on the Second Court Date a
certificate confirming (in respect of matters within their knowledge) whether or not
all of the conditions precedent set out in clause 3.1(a) and 3.1(b) of this Scheme
have been satisfied or waived as at 8.00am on the Second Court Date.
The certificates referred to in this clause 3.3 will constitute conclusive evidence of
whether the conditions precedent referred to in clause 3.1(a) and 3.1(b) of this
Scheme have been satisfied or waived as at 8.00am on the Second Court Date.
4 Scheme
4.1 Effective Date
Subject to clause 4.2, this Scheme will come into effect pursuant to section
411(10) of the Corporations Act on and from the Effective Date.
King & Wood Mallesons Scheme of Arrangement 8
4.2 End Date
This Scheme will lapse and be of no further force or effect if:
(a) the Scheme has not become Effective on or before the End Date; or
(b) the Scheme Implementation Agreement or the Deed Poll is terminated in
accordance with its terms,
unless Tawana and AMAL agree otherwise in writing.
5 Implementation of Scheme
5.1 Lodgement of Court orders with ASIC
Tawana will lodge with ASIC in accordance with section 411(10) of the
Corporations Act an office copy of any Court order approving this Scheme as
soon as possible, and in any event by no later than 5.00pm on the first Business
Day after the day on which the Court approves this Scheme or such later time as
AMAL and Tawana agree in writing.
5.2 Transfer and registration of Scheme Shares
On the Implementation Date, but subject to the issuance of the Scheme
Consideration for the Scheme Shares in accordance with clauses 6.2 to 6.5 of
this Scheme and AMAL having provided Tawana with written confirmation
thereof:
(a) the Scheme Shares, together with all rights and entitlements attaching to
the Scheme Shares as at the Implementation Date, will be transferred to
AMAL without the need for any further act by any Scheme Participant
(other than acts performed by Tawana as attorney and agent for Scheme
Participants under clause 8.1 of this Scheme) by:
(i) Tawana delivering to AMAL a duly completed and executed
Scheme Transfer executed on behalf of the Scheme
Participants; and
(ii) AMAL duly executing the Scheme Transfer and delivering it to
Tawana for registration; and
(b) immediately after receipt of the duly executed Scheme Transfer, Tawana
must enter the name of AMAL in the Register in respect of all Scheme
Shares transferred to AMAL in accordance with the terms of this
Scheme.
5.3 Timing
Notwithstanding any other provision of this Scheme, while AMAL Shares forming
the Scheme Consideration must be issued (and the AMAL Register updated to
record their issuance) on the Implementation Date, any requirements under
clause 6 for the sending of holding statements or allotment advices (or
equivalent) may be satisfied as soon as practicable after the Implementation
Date.
5.4 Excluded Shareholders
Nothing in this Scheme requires AMAL to provide Scheme Consideration to any
Excluded Shareholder.
King & Wood Mallesons Scheme of Arrangement 9
5.5 Entitlement to Scheme Consideration
On the Implementation Date, in consideration for the transfer to AMAL of the
Scheme Shares:
(a) each Scheme Participant (who is not an Ineligible Shareholder) will be
issued the Scheme Consideration in respect of each of their Scheme
Shares as at 5.00pm on the Record Date; and
(b) the Sale Agent will be issued the Scheme Consideration (in the form of
AMAL Shares) in respect of the Scheme Shares held by all Ineligible
Shareholders as at 5.00pm on the Record Date,
in accordance with clause 6 of this Scheme.
5.6 Title and rights in Tawana Shares
Subject to the issuance of the Scheme Consideration for the Scheme Shares as
contemplated by clause 6 of this Scheme, on and from the Implementation Date,
AMAL will be beneficially entitled to the Scheme Shares transferred to it under
the Scheme, pending registration by Tawana of AMAL in the Register as the
holder of the Scheme Shares.
5.7 Scheme Participants’ agreements
Under this Scheme:
(a) each Scheme Participant (other than an Ineligible Shareholder) that is
issued AMAL Shares under this Scheme agrees to become a
shareholder of AMAL in respect of those AMAL Shares, to be bound by
the constitution of AMAL and to have their name entered in the AMAL
Register (including via the Depository, as the case may be);
(b) each Scheme Participant that is an Ineligible Shareholder agrees and
acknowledges that the payment to it of an amount in accordance with
clause 6.8 constitutes the satisfaction in full of its entitlement under this
Scheme; and
(c) each Scheme Participant agrees to the transfer of their Scheme Shares,
together with all rights and entitlements attaching to those Scheme
Shares, in accordance with the terms of this Scheme.
5.8 Warranty by Scheme Participants
Each Scheme Participant warrants to AMAL and is deemed to have authorised
Tawana to warrant to AMAL as agent and attorney for the Scheme Participant by
virtue of this clause 5.6, that:
(a) all their Scheme Shares (including any rights and entitlements attaching
to those shares) transferred to AMAL under the Scheme will, as at the
date of the transfer, be fully paid and free from all Encumbrances; and
(b) they have full power and capacity to sell and to transfer all their Scheme
Shares (including any rights and entitlements attaching to those shares)
to AMAL under the Scheme.
5.9 Transfer free of Encumbrances
To the extent permitted by law, all Tawana Shares (including any rights and
entitlements attaching to those shares) which are transferred to AMAL under this
Scheme will, at the date of the transfer of them to AMAL, vest in AMAL free from
King & Wood Mallesons Scheme of Arrangement 10
all Encumbrances and interests of third parties of any kind, whether legal or
otherwise, and free from any restrictions on transfer of any kind not referred to in
this Scheme.
5.10 Appointment of AMAL as sole proxy
Subject to the issuance of the Scheme Consideration for the Scheme Shares as
contemplated by clauses 5.2 and 6.5 of this Scheme, on and from the
Implementation Date until Tawana registers AMAL as the holder of all of the
Tawana Shares in the Register, each Scheme Participant:
(a) irrevocably appoints Tawana as attorney and agent (and directs Tawana
in such capacity) to appoint AMAL and each of its directors from time to
time (jointly and each of them individually) as its sole proxy and where
applicable, corporate representative, to attend shareholders’ meetings,
exercise the votes attaching to Tawana Shares registered in its name
and sign any shareholders resolution, and no Scheme Participant may
itself attend or vote at any of those meetings or sign any resolutions,
whether in person, by proxy or by corporate representative (other than
pursuant to this clause 5.10(a));
(b) must take all other actions in the capacity of the registered holder of
Tawana Shares as AMAL directs; and
(c) acknowledges and agrees that in exercising the powers referred to in
clause 5.10(a), AMAL and any director, officer, secretary or agent
nominated by AMAL under clause 5.10(a) may act in the best interests of
AMAL as the intended registered holder of the Tawana Shares.
Tawana undertakes in favour of each Scheme Participant that it will appoint
AMAL and each of its directors from time to time (jointly and each of them
individually) as that Scheme Participant’s proxy or, where applicable, corporate
representative in accordance with clause 5.10(a) of this Scheme.
6 Scheme Consideration
6.1 Election procedure
(a) Subject to the remaining provisions of this clause 6.1, each Scheme
Participant (other than Ineligible Shareholders) will be entitled to elect to
receive, as consideration for the transfer of its Scheme Shares to AMAL
under this Scheme, SGX Consideration Shares as an alternative to
receiving ASX Consideration Shares by completing the Election Form
and returning it to the address specified in the Election Form so that it is
received by 5.00pm on the Record Date. An election under this clause
6.1 must be made in accordance with the terms and conditions on the
Election Form including provision of the Scheme Participant's SGX
Securities Account.
(b) An Ineligible Shareholder may not make any election pursuant to this
clause 6.1 and any election purportedly made will be invalid. Ineligible
Shareholders will receive ASX Consideration Shares and the ASX
Consideration Shares will be dealt with in accordance with clause 6.8.
(c) A Scheme Participant (other than an Ineligible Shareholder) who does
not validly elect to receive SGX Consideration Shares will receive ASX
Consideration Shares. Accordingly, a Scheme Participant who wishes to
receive ASX Consideration Shares does not need to make an election
under this clause 6.1.
King & Wood Mallesons Scheme of Arrangement 11
(d) Subject to clause 6.1(e), an election made by a Scheme Participant
(other than an Ineligible Shareholder) under this clause 6.1 will be
deemed to apply in respect of the Scheme Participant’s entire registered
holding of Scheme Shares, regardless of whether the Scheme
Participant’s holding of Scheme Shares is greater or less than the
Scheme Participant’s holding at the time of the election.
(e) A Scheme Participant (other than an Ineligible Shareholder) who is noted
on the Register as holding one or more parcels of Tawana Shares as
trustee or nominee for, or otherwise on account of, another person, may
make separate elections under this clause 6.1 in relation to each of
those parcels of Tawana Shares (subject to it providing to Tawana any
substantiating information that may be reasonably required), and an
election made in respect of any such parcel, or an omission to make an
election in respect of any such parcel, will not be taken to extend to the
other parcels.
(f) Tawana may, with the agreement of AMAL, settle as it thinks fit any
difficulty, matter of interpretation or dispute which may arise in
connection with determining the validity of any election, and any such
decision will be conclusive and binding on Tawana, AMAL and the
relevant Scheme Participant.
6.2 Consideration under the Scheme
On the Implementation Date, Tawana must procure AMAL to issue the Scheme
Consideration to the Scheme Participants in accordance with clauses 6.3, 6.4
and 6.5 of this Scheme.
6.3 Rounding entitlements
If the number of Scheme Shares held by a Scheme Participant as at 5.00pm on
the Record Date is such that the aggregate entitlement of the Scheme Participant
to Scheme Consideration is such that a fractional entitlement to an AMAL Share
arises, then the entitlement of that Scheme Participant must be rounded up to the
nearest whole number of AMAL Shares.
6.4 Satisfaction of obligations
The obligation of Tawana to procure issuance of the Scheme Consideration in
the form of AMAL Shares pursuant to clause 6.2 of this Scheme will be satisfied
by Tawana using its best endeavours to procure that:
(a) in the case of AMAL Shares to be issued to Scheme Participants who
are not Electing Scheme Participants:
(i) the name and address of each Scheme Participant is entered
into the AMAL Register on the Implementation Date in respect of
the ASX Consideration Shares to which it is entitled;
(ii) a holding statement is sent to the registered address of each
Scheme Participant, representing the number of ASX
Consideration Shares issued to the Scheme Participant;
(b) in the case of AMAL Shares to be issued to Electing Scheme
Participants:
(i) that number of AMAL Shares that will enable the Depository to
credit to SGX Securities Accounts the SGX Consideration
Shares envisaged by clause 6.4(b)(iii) are issued to the
King & Wood Mallesons Scheme of Arrangement 12
Depository to be held on trust for the Electing Scheme
Participants;
(ii) the name and address of the Depository is entered into the
AMAL Register on the Implementation Date in respect of the
number of AMAL Shares which Electing Scheme Participants
are entitled;
(iii) each Electing Scheme Participant's SGX Securities Account is
credited by the Depository with the number of SGX
Consideration Shares to which the Electing Scheme Participant
is entitled; and
(iv) a holding statement (or equivalent) is sent to each Electing
Scheme Participant, representing the number of SGX
Consideration Shares credited to the Scheme Participant; and
(c) in the case of AMAL Shares to be issued in respect of Scheme
Consideration due to Ineligible Shareholders:
(i) the name and address of the Sale Agent is entered into the
AMAL Register on the Implementation Date in respect of the
AMAL Shares required to be issued to it under this clause 6;
(ii) a holding statement in the name of the Sale Agent is sent to the
Sale Agent representing the number of ASX Consideration
Shares issued to it; and
(iii) the Sale Agent sells those AMAL Shares on behalf of Ineligible
Shareholders, and pays the proceeds in accordance with clause
6.8.
6.5 Issuance of Scheme Consideration
On the Implementation Date, subject to receipt of the Scheme Consideration
from AMAL in accordance with clause 6.4 of this Scheme, Tawana must procure
the issuance to each Scheme Participant of the Scheme Consideration for each
Scheme Share transferred to AMAL on the Implementation Date by that Scheme
Participant.
6.6 Joint holders
In the case of Scheme Shares held in joint names:
(a) the AMAL Shares to be issued under this Scheme will be issued to and
registered in the names of the joint holders; and
(b) any other document required to be sent under this Scheme will be
forwarded to the holder whose name appears first in the Register as at
5.00pm on the Record Date.
6.7 Binding instruction or notifications
Except for a Scheme Participant’s tax file number, any binding instruction or
notification between a Scheme Participant and Tawana relating to Scheme
Shares as at 5.00pm on the Record Date (including any instructions relating to
payment of dividends or to communications from Tawana) will, from 5.00pm on
the Record Date, be deemed (except to the extent determined otherwise by
AMAL in its sole discretion) to be a similarly binding instruction or notification to,
and accepted by AMAL, in respect of the AMAL Shares issued to the Scheme
Participant until that instruction or notification is revoked or amended in writing
King & Wood Mallesons Scheme of Arrangement 13
addressed to AMAL, provided that any such instructions or notifications accepted
by AMAL will apply to and in respect of the issue of AMAL Shares as the Scheme
Consideration only to the extent that they are:
(a) not inconsistent with the other provisions of this Scheme; or
(b) recognised under Australian law or AMAL’s constituent documents.
6.8 Ineligible Shareholders
(a) Unless AMAL determines that the laws of an Ineligible Shareholder’s
country of residence (as shown in the Register) permit the issue and
allotment of AMAL Shares to the Ineligible Shareholder, either
unconditionally or after compliance with conditions which AMAL in its
sole discretion regards as acceptable, and that it is not unduly onerous
or impracticable for AMAL to issue and allot AMAL Shares to the
Ineligible Shareholder, AMAL will be under no obligation to allot or issue,
and will not issue, any AMAL Shares to any such Ineligible Shareholder
and, instead, will issue the AMAL Shares to which the Ineligible
Shareholder would have otherwise been entitled to the Sale Agent, on
trust for the Ineligible Shareholder who is the beneficial owner thereof.
(b) AMAL will procure that, as soon as reasonably practicable and in any
event not more than 15 Business Days after the Implementation Date,
the Sale Agent:
(i) sells all of the AMAL Shares issued to the Sale Agent pursuant
to clause 6.8(a) in such manner, on such financial market, at
such price and on such other terms as the Sale Agent
determines in good faith and at the risk of the Ineligible
Shareholders; and
(ii) remits to each Ineligible Shareholder the proportion of the net
proceeds of sale (after deducting any applicable brokerage,
stamp duty and other selling costs, taxes and charges) received
pursuant to clause 6.8(b)(i) to which that Ineligible Shareholder
is entitled (calculated on an average basis so that all Ineligible
Shareholders receive the same price per Scheme Share subject
to rounding).
(c) AMAL will pay the relevant fraction of the proceeds of sale referred to in
clause 6.8(b)(ii) to each Ineligible Shareholder in accordance with any
current notification made by each such Ineligible Shareholder for the
payment of any Tawana dividends by deposit to a nominated bank
account or, where there is no such current notification, by sending or
procuring the despatch to each such Ineligible Shareholder by prepaid
post to the registered address of the Ineligible Shareholder at 5.00pm on
the Record Date, a cheque in the name of that Ineligible Shareholder for
the relevant amount (denominated in Australian dollars).
(d) Each Ineligible Shareholder appoints Tawana as its agent to receive on
its behalf any financial services guide or other notices (including any
updates of those documents) that the Sale Agent is required to provide
to Ineligible Shareholders under the Corporations Act.
King & Wood Mallesons Scheme of Arrangement 14
6.9 Status of AMAL Shares
Subject to this Scheme becoming Effective, AMAL will:
(a) issue the AMAL Shares required to be issued by it under this Scheme on
terms such that each such AMAL Share will rank equally in all respects
with all existing AMAL Shares;
(b) ensure that each AMAL Share issued as Scheme Consideration is
validly issued, fully paid and free form any Encumbrance or other third
party rights; and
(c) use all reasonable endeavours to ensure that:
(i) all SGX Consideration Shares issued as Scheme Consideration
are approved for listing on the official list of the Catalist and
trading on SGX and that trading in the SGX Consideration
Shares commences on the SGX on the first trading day on SGX
following the Implementation Date (or such later date as the
SGX requires); and
(ii) ASX gives approval for the Official Quotation of all ASX
Consideration Shares issued as Scheme Consideration and that
trading in the ASX Consideration Shares commences on the
ASX on the first trading day on the ASX following the
Implementation Date (or such later date as ASX requires).
7 Dealings in Scheme Shares
7.1 Determination of Scheme Participants
To establish the identity of the Scheme Participants, dealings in Scheme Shares
will only be recognised by Tawana if registrable transmission applications or
transfers in registrable form in respect of those dealings are received on or
before 5.00pm on the Record Date at the place where the Register is kept, and
Tawana will not accept for registration, or recognise for the purpose of
establishing the identity of Scheme Participants, any transmission application or
transfer in respect of Tawana Shares received after 5.00pm on the Record Date.
7.2 Register
Tawana must register any registrable transmission applications or transfers of
the Scheme Shares received in accordance with clause 7.1 of this Scheme on or
before 5.00pm on the Record Date.
7.3 No disposals after Record Date
(a) If this Scheme becomes Effective, a holder of Scheme Shares (and any
person claiming through that holder) must not dispose of, or purport or
agree to dispose of, any Scheme Shares or any interest in them after the
Record Date in any way except as set out in this Scheme and any such
disposal will be void and of no legal effect whatsoever.
(b) Tawana will not accept for registration or recognise for any purpose any
transmission, application or transfer in respect of Scheme Shares
received after 5.00pm on the Record Date (except a transfer to AMAL
pursuant to this Scheme and any subsequent transfer by AMAL or its
successors in title) or received prior to 5.00pm on the Record Date but
not in registrable or actionable form.
King & Wood Mallesons Scheme of Arrangement 15
7.4 Maintenance of Tawana Register
For the purpose of determining entitlements to the Scheme Consideration,
Tawana will maintain the Register in accordance with the provisions of this
clause 7 until the Scheme Consideration has been issued to the Scheme
Participants and AMAL has been entered in the Register as the holder of all the
Scheme Shares. The Register in this form will solely determine entitlements to
the Scheme Consideration.
7.5 Effect of holding statements
Subject to issuance of the Scheme Consideration and registration of the transfer
to AMAL contemplated in clauses 5.2 of this Scheme, any statements of holding
in respect of Scheme Shares will cease to have effect after 5.00pm on the
Record Date as documents of title in respect of those shares. After 5.00pm on
the Record Date, each entry current on the Register as at 5.00pm on the Record
Date (other than entries in respect of the Excluded Shareholders or their
successors in title) will cease to have effect except as evidence of entitlement to
the Scheme Consideration.
7.6 Details of Scheme Participants
As soon as practicable after the Record Date, and in any event within one
Business Day of the Record Date, Tawana will ensure that details of the names,
Registered Addresses and holdings of Scheme Shares for each Scheme
Participant, as shown in the Register at 5.00pm on the Record Date are available
to AMAL in such form as AMAL reasonably requires.
7.7 Quotation of Tawana Shares
(a) Tawana will apply to ASX to suspend trading on ASX in Tawana Shares
with effect from the close of trading on ASX on the Effective Date.
(b) After the Scheme has been fully implemented, Tawana will apply:
(i) for termination of the Official Quotation of Tawana Shares on
ASX and termination of official quotation of Tawana Shares on
JSE; and
(ii) to have itself removed from the official list of the ASX and JSE.
8 General Scheme provisions
8.1 Power of attorney
Each Scheme Participant, without the need for any further act by any Scheme
Participant, irrevocably appoints Tawana and each of its directors and
secretaries (jointly and each of them individually) as its attorney and agent for the
purpose of:
(a) executing any document necessary or expedient to give effect to this
Scheme including the Scheme Transfer;
(b) enforcing the Deed Poll against AMAL,
and Tawana accepts such appointment. Tawana, as agent for each Scheme
Participant, may sub-delegate its functions, authorities or powers under this
clause 8.1 to any or all of its directors and officers (jointly, severally, or jointly and
severally).
King & Wood Mallesons Scheme of Arrangement 16
8.2 Variations, alterations and conditions
Tawana may, with the consent of AMAL (which cannot be unreasonably
withheld), by its counsel or solicitor consent on behalf of all persons concerned to
any variations, alterations or conditions to this Scheme which the Court thinks fit
to impose. Each Scheme Participant agrees to any such variation, alteration or
condition.
8.3 Further action by Tawana
Tawana will execute all documents and do all things (on its own behalf and on
behalf of each Scheme Participant) necessary or expedient to implement, and
perform its obligations under, this Scheme.
8.4 Authority and acknowledgement
Each of the Scheme Participants:
(a) irrevocably consents to Tawana and AMAL doing all things necessary or
expedient for or incidental to the implementation of this Scheme; and
(b) acknowledges that this Scheme binds Tawana and all Scheme
Participants (including those who do not attend the Scheme Meeting or
do not vote at that meeting or vote against the Scheme at that Meeting)
and, to the extent of any inconsistency and to the extent permitted by
law, overrides the constitution of Tawana.
8.5 No liability when acting in good faith
Neither Tawana nor AMAL, nor any of their respective officers, employees and
advisers (as applicable), will be liable for anything done or omitted to be done in
the performance of this Scheme in good faith.
8.6 Enforcement of Deed Poll
Tawana undertakes in favour of each Scheme Participant to enforce the Deed
Poll against AMAL on behalf of, and as agent and attorney for, each Scheme
Participant.
8.7 Stamp duty
AMAL will pay all stamp duty (including any fines, penalties and interest) payable
in connection with this Scheme.
8.8 Notices
(a) If a notice, transfer, transmission application, direction or other
communication referred to in this Scheme is sent by post to Tawana, it
will not be taken to be received in the ordinary course of post or on a
date and time other than the date and time (if any) on which it is actually
received at Tawana’s registered office or at the office of the registrar of
Tawana Shares.
(b) The accidental omission to give notice of the Scheme Meeting or the
non-receipt of such a notice by any Shareholder shall not, unless so
ordered by the Court, invalidate the Scheme Meeting or the proceedings
of the Scheme Meeting.
King & Wood Mallesons Scheme of Arrangement 17
9 Governing law
9.1 Governing law
This Scheme is governed by the law in force in Western Australia.
9.2 Jurisdiction
Each party irrevocably and unconditionally:
(a) submits to the non-exclusive jurisdiction of the courts of Western
Australia; and
(b) waives, without limitation, any claim or objection based on absence of
jurisdiction or inconvenient forum.
King & Wood Mallesons Scheme of Arrangement 18
Scheme Implementation Agreement
Annexure B - Deed Poll
King & Wood Mallesons Scheme Implementation Agreement
Deed Poll
Dated 2018
Alliance Mineral Assets Limited (AMAL)
In favour of each registered holder of fully paid ordinary shares in
Tawana Resources NL (Tawana) as at 5.00pm on the Record Date,
other than the Excluded Shareholders (Scheme Participants)
King & Wood Mallesons
Level 30
QV1 Building
250 St Georges Terrace
Perth WA 6000
Australia
T +61 8 9269 7000
F +61 8 9269 7999
DX 210 Perth
www.kwm.com
Deed Poll
Contents
Details 1
General terms 2
1 Definitions and interpretation 2
1.1 Definitions 2
1.2 Interpretation 2
1.3 Headings 2
1.4 Nature of deed poll 2
2 Conditions precedent and termination 3
2.1 Conditions precedent 3
2.2 Termination 3
2.3 Consequences of termination 3
3 Performance of obligations generally 3
4 Scheme Consideration 3
5 Representations and warranties 3
6 Continuing obligations 4
7 Notices 4
7.1 Form - all communications 4
7.2 Form - communications sent by email 5
7.3 Delivery 5
7.4 When effective 5
7.5 When taken to be received 5
7.6 Receipt outside business hours 5
8 General 6
8.1 Stamp duty 6
8.2 Waiver 6
8.3 Variation 6
8.4 Remedies cumulative 6
8.5 Assignment 6
8.6 Governing law and jurisdiction 7
8.7 Further action 7
Signing page 8
Annexure A - Scheme 9
King & Wood Mallesons Deed Poll i
Deed Poll
Details
Party AMAL
AMAL Name Alliance Mineral Assets Limited
ABN 56 147 393 735
Address Unit 6, 24 Parkland Rd, Osborne Park WA 6017
Email pauline.gately@alliancemineralassets.com.au
Fax +61 8 9388 8837
Attention Ms Pauline Gately (Chairperson)
In favour of Each registered holder of fully paid ordinary shares in Tawana as at
5.00pm on the Record Date (other than the Excluded Shareholders).
Recitals A Tawana and AMAL have entered into the Scheme
Implementation Agreement.
B In the Scheme Implementation Agreement, AMAL agreed
(amongst other things) to provide the Scheme Consideration
to the Scheme Participants, subject to the satisfaction of
certain conditions.
C AMAL is entering into this deed poll for the purpose of
covenanting in favour of Scheme Participants to perform its
obligations in relation to the Scheme.
Governing law Western Australia
Date of deed See Signing page
poll
King & Wood Mallesons Deed Poll 1
Deed Poll
General terms
1 Definitions and interpretation
1.1 Definitions
In this deed poll (unless the context otherwise requires):
Authorised Officer means:
(a) in respect of AMAL, Pauline Gately, or any other person nominated by
AMAL to act as an Authorised Officer under this agreement and notified
to Tawana in writing; and
(b) in respect of Tawana, each of Mark Calderwood and Robert Benussi, or
any other person nominated by Tawana to act as an Authorised Officer
under this agreement and notified to AMAL in writing.
Scheme means the proposed scheme of arrangement under Part 5.1 of the
Corporations Act between Tawana and Scheme Participants under which all the
Scheme Shares will be transferred to AMAL, substantially in the form of
Annexure A to this deed poll with any amendment or modification made pursuant
to section 411(6) of the Corporations Act to the extent they are approved in
writing by Tawana and AMAL.
Scheme Implementation Agreement means the scheme implementation
agreement dated [] 2018 between Tawana and AMAL under which, amongst
other things, Tawana has agreed to propose the Scheme to Tawana
Shareholders, and each of AMAL and Tawana has agreed to take certain steps
to give effect to the Scheme.
All other words and phrases used in this deed poll have the same meaning as
given to them in the Scheme.
1.2 Interpretation
Clause 1.2 of the Scheme applies to the interpretation of this deed poll except
that references to “this Scheme” in that clause are to be read as references to
“this deed poll”.
1.3 Headings
Headings (including those in brackets at the beginning of paragraphs) are for
convenience only and do not affect the interpretation of this deed poll.
1.4 Nature of deed poll
AMAL acknowledges that:
(a) this deed poll may be relied on and enforced by any Scheme Participant
in accordance with its terms even though the Scheme Participants are
not a party to it; and
King & Wood Mallesons Deed Poll 2
(b) under the Scheme, Tawana undertakes in favour of each Scheme
Participant to enforce this deed poll against AMAL on behalf of, and as
agent and attorney for, each Scheme Participant.
2 Conditions precedent and termination
2.1 Conditions precedent
AMAL’s obligations under clause 4 are subject to the Scheme becoming
Effective.
2.2 Termination
AMAL’s obligations under this deed poll will automatically terminate and the
terms of this deed poll will be of no further force or effect if:
(a) the Scheme has not become Effective on or before the End Date; or
(b) the Scheme Implementation Agreement is terminated in accordance with
its terms,
unless AMAL and Tawana otherwise agree in writing.
2.3 Consequences of termination
If this deed poll is terminated under clause 2.2, then, in addition and without
prejudice to any other rights, powers or remedies available to Scheme
Participants:
(a) AMAL is released from further performing its obligations under this deed
poll except those obligations contained in clause 8.1; and
(b) each Scheme Participant retains the rights, powers or remedies they
have against AMAL in respect of any breach of this deed poll which
occurs before it is terminated.
3 Performance of obligations generally
AMAL undertakes in favour of each Scheme Participant that it will fulfil its
obligations under the Scheme Implementation Agreement and do all acts and
things necessary or desirable on its part to give full effect to the Scheme.
4 Scheme Consideration
Subject to clause 2, AMAL undertakes in favour of each Scheme Participant to
issue to the Scheme Participant the Scheme Consideration for each Tawana
Share held by each Scheme Participant subject to and in accordance with the
terms of the Scheme.
5 Representations and warranties
AMAL represents and warrants that:
(a) it is a corporation validly existing under the laws of its place of
registration;
King & Wood Mallesons Deed Poll 3
(b) it has the power to enter into and perform its obligations under this deed
poll and to carry out the transactions contemplated by this deed poll;
(c) it has taken all necessary action to authorise its entry into this deed poll
and has taken or will take all necessary action to authorise the
performance of this deed poll and to carry out the transactions
contemplated by this deed poll;
(d) the AMAL Shares which are issued to Scheme Participants, in
accordance with the Scheme, will:
(i) rank equally with all existing AMAL Shares; and
(ii) be issued fully paid and free from any Encumbrances;
(e) this deed poll is valid and binding upon AMAL and enforceable against
AMAL in accordance with its terms; and
(f) this deed poll does not conflict with, or result in the breach of or default
under, any provision of the constitution of AMAL or any material term or
provision of any agreement, or any writ, order or injunction, judgment,
law, rule or regulation to which AMAL is a party, is subject to or is bound.
6 Continuing obligations
This deed poll is irrevocable and, subject to clause 2, remains in full force and
effect until:
(a) AMAL has fully performed its obligations under this deed poll; or
(b) the earlier termination of this deed poll under clause 2.2.
7 Notices
7.1 Form - all communications
Unless expressly stated otherwise in this deed poll, all notices, certificates,
consents, approvals, waivers and other communications in connection with this
deed poll must be:
(a) in writing;
(b) signed by the sender (if an individual) or an Authorised Officer of the
sender; and
(c) marked for the attention of the person identified in the Details (or, if the
recipient has notified otherwise, then marked for attention in the way last
notified) and:
(i) in the case of communications to AMAL, a copy must be sent to
Scott Gibson, Partner, DLA Piper Australia,
Scott.Gibson@dlapiper.com; and
(ii) in the case of communications to Tawana, a copy must be sent
to: Heath Lewis, Partner, King & Wood Mallesons,
heath.lewis@au.kwm.com.
King & Wood Mallesons Deed Poll 4
7.2 Form - communications sent by email
Communications sent by email need not be marked for the attention of the
person identified in the Details (or, if the recipient has notified otherwise, in the
way last notified). The email must state the first and last name of the sender.
Communications sent by email are taken to be signed by the named sender.
7.3 Delivery
Communications must be:
(a) left at the address set out or referred to in the Details;
(b) sent by regular post (airmail if appropriate) to the address set out or
referred to in the Details with a copy to be sent by email to the address
set out or referred to in the Details;
(c) sent by email to the email address set out or referred to in the Details;
(d) sent by fax to the fax number set out or referred to in the Details; or
(e) given in any other way permitted by law.
However, if the intended recipient has notified a changed address, fax number or
email address, then communications must be to that address, fax number or
email address.
7.4 When effective
Communications take effect from the time they are received or taken to be
received under clause 7.5 (whichever happens first) unless a later time is
specified.
7.5 When taken to be received
Communications are taken to be received:
(a) if sent by post, 6 Business Days after posting (or 10 Business Days after
posting if sent from one country to another);
(b) if sent by fax, at the time shown in the transmission report as the time
that the whole fax was sent; or
(c) if sent by email;
(i) when the sender receives an automated message confirming
delivery; or
(ii) four 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 the email has not been delivered,
whichever happens first.
7.6 Receipt outside business hours
Despite clauses 7.4 and 7.5, if communications are received or taken to be
received under clause 7.5 after 5.00pm in the place of receipt or on a non-
Business Day, they are taken to be received at 9.00am on the next Business Day
and take effect from that time unless a later time is specified.
King & Wood Mallesons Deed Poll 5
8 General
8.1 Stamp duty
AMAL must:
(a) pay all stamp duty (including fines, penalties and interest) payable and
assessed on or in connection with this deed poll, the performance of this
deed poll, or any instruments entered into under this deed poll (including,
in connection with the transfer of Tawana Shares to AMAL in accordance
with the terms of the Scheme) and in respect of a transaction effected by
or made under the Scheme and this deed poll;
(b) pay other costs incurred in connection with the transfer of Tawana
Shares to AMAL in accordance with the terms of the Scheme; and
(c) indemnify on demand each Scheme Participant against any liability
arising from failure to comply with clause 8.1(a) or 8.1(b).
8.2 Waiver
A right may only be waived in writing, signed by the person giving the waiver,
and:
(a) no other conduct of a party (including a failure to exercise, or delay in
exercising, the right) operates as a waiver of the right or otherwise
prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a
waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right
or of any other right.
8.3 Variation
A provision of this deed poll or any right created under it may not be varied,
altered or otherwise amended unless:
(a) the variation is agreed to by Tawana and AMAL in writing; and
(b) the Court indicates that the variation, alteration or amendment would not
itself preclude approval of the Scheme,
in which event AMAL must enter into a further deed poll in favour of the Scheme
Participants giving effect to the variation, alteration or amendment.
8.4 Remedies cumulative
The rights, powers and remedies of AMAL and the Scheme Participants under
this deed poll are cumulative and are in addition to, and do not exclude any,
other rights, powers and remedies given by law independently of this deed poll.
8.5 Assignment
The rights and obligations of AMAL and each Scheme Participant under this
deed poll are personal and must not be assigned, encumbered or otherwise dealt
with at law or in equity and no person may attempt or purport to do so without the
prior written consent of AMAL and Tawana.
King & Wood Mallesons Deed Poll 6
8.6 Governing law and jurisdiction
This deed poll is governed by the law in force in the place specified in the Details.
AMAL irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the courts of that place.
8.7 Further action
AMAL must, at its own expense, execute all deeds and other documents and do
all things (on its own behalf or on behalf of each Scheme Participant) necessary
or expedient to give full effect to this deed poll and the transactions contemplated
by it.
EXECUTED as a deed poll
King & Wood Mallesons Deed Poll 7
Deed Poll
Signing page
DATED: 2018
EXECUTED by ALLIANCE MINERAL )
ASSETS LIMITED ACN 147 393 735 in )
accordance with section 127(1) of the )
Corporations Act 2001 (Cth) by )
authority of its directors: )
)
) ...............................................................
............................................................... ) Signature of director
Signature of director )
)
) ...............................................................
............................................................... ) Name of director
Name of director (block letters)
King & Wood Mallesons Deed Poll 8
Deed Poll
Annexure A - Scheme
King & Wood Mallesons Deed Poll 9
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