XXXXX XXXXXX XXXXXXX
L A W Y E R S
SHARE SUBSCRIPTION
AGREEMENT
LIHIR AUSTRALIAN HOLDINGS PTY LIMITED
ACN 121 554 443
BALLARAT GOLDFIELDS N.L.
ACN 006 245 441
17 OCTOBER 2006
Xxxxx 00, Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Telephone: (00) 0000 0000
Fax: (00) 0000 0000 REF. PHM ATH 02 1404 7936
(C) XXXXX XXXXXX XXXXXXX 2006
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document 3
1.3 Business Days 4
2. SUBSCRIPTION FOR PLACEMENT SHARES 4
3. SUBSCRIPTION COMPLETION 4
3.1 Time and Place 4
3.2 Subscriber's obligations 4
3.3 Company's obligations 4
3.4 Quotation of Placement Shares 5
3.5 Use of proceeds 5
4. INFORMATION NOTIFICATION AND ANNOUNCEMENTS 5
4.1 Information Notification 5
4.2 Substantial Holder Notice 5
4.3 Announcements 5
5. CONFIDENTIALITY 5
5.1 Confidentiality 5
6. WARRANTIES AND REPRESENTATIONS 6
6.1 By each party generally 6
6.2 By the Company 7
6.3 On-sale restrictions: Company's representations and warranties 8
6.4 Correction of Information Notification 8
6.5 Subscriber's representations and warranties 8
6.6 Reliance on Representations and Warranties 9
6.7 Warranties not extinguished or affected 9
6.8 Update of disclosures 9
7. NOTICES 9
8. AMENDMENT AND ASSIGNMENT 10
8.1 Amendment 10
8.2 Assignment 10
9. GENERAL 10
9.1 Governing law 10
9.2 Liability for expenses 11
9.3 Giving effect to this document 11
9.4 Waiver of rights 11
9.5 Operation of this document 11
9.6 Assignment 11
9.7 No merger 11
9.8 Counterparts 12
9.9 Attorneys 12
9.10 Construction 12
SCHEDULE
1 APPLICATION FOR PLACEMENT SHARES 13
ii.
SHARE SUBSCRIPTION AGREEMENT
DATE 17 October 2006
PARTIES
LIHIR AUSTRALIAN HOLDINGS PTY LTD ACN 121 554 443 of Level 9, AAMI
Building, 000 Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxxx, 0000, Xxxxxxxxx
(SUBSCRIBER)
BALLARAT GOLDFIELDS N.L. ACN 006 245 441 of 00 Xxxxxxxx Xxxxx Xxxxx, Xx
Xxxxx, Xxxxxxxx, 0000, Xxxxxxxxx (COMPANY)
RECITALS
A. The Subscriber has agreed with the Company to subscribe for the Placement
Shares and pay the Subscription Price, and the Company has agreed to issue
the Placement Shares to the Subscriber, on the terms of this agreement.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
ACT means the Corporations Xxx 0000 (Cth).
ASTC means the ASX Settlement and Transfer Corporation Pty Limited.
ASTC SETTLEMENT RULES means the operating rules of the settlement facility
provided by ASTC.
ASX means Australian Stock Exchange Limited.
AUTHORISATION means:
(a) an authorisation, consent, declaration, exemption, notarisation or
waiver, however it is described; and
(b) in relation to anything that could be prohibited or restricted by
law if a Government Agency acts in any way within a specified
period, the expiry of that period without that action being taken,
including any renewal or amendment.
BALLARAT GOLDFIELDS EAST PROJECT means the current mine development as
described in the announcement by Ballarat Goldfields N.L. to ASX on 7
September 2006 entitled "Ballarat Goldfields East Revised Development
Strategy".
BUSINESS means the business and affairs of the Company.
BUSINESS DAY means a business day as defined in the Listing Rules.
CIRCUMSTANCE has the meaning given to it in clause 6.8.
COMPANY GROUP means Ballarat Goldfields N.L. and its Subsidiaries.
CONFIDENTIALITY AGREEMENT means the Confidentiality Agreement between
Ballarat Goldfields N.L. and Lihir Gold dated 14 August 2006.
CONSTITUTION means the constitution of the Company at the date of this
document.
GOVERNMENT AGENCY means any Australian or foreign government or
governmental, semi-governmental, administrative, fiscal, regulatory or
judicial body, department, commission, authority, tribunal agency or
entity.
INFORMATION NOTIFICATION means a notice that complies with subsections
708A(5)(e), (6),(7)and(8)of the Act.
INTELLECTUAL PROPERTY means all present and future rights conferred by
statute, common law or equity in or in relation to copyright, trade marks,
designs, patents, circuit layouts, business and domain names, inventions,
know-how, Confidential Information and other results of intellectual
activity in the industrial, commercial, scientific, literary or artistic
fields, whether or not registrable, registered or patentable.
LIHIR GOLD means Lihir Gold Limited ARBN 069 803 998.
LISTING RULES means the Listing Rules of the ASX.
MATERIAL ADVERSE EFFECT means an event which individually, or when
aggregated with all such other events, is reasonably likely to have a
material adverse effect on the business, financial position or prospects
of Ballarat Goldfields N.L. and its subsidiaries including its mining
operations and, in particular the Ballarat Goldfields N.L. East Project.
MERGER IMPLEMENTATION AGREEMENT means the agreement between Lihir Gold,
Lihir Australian Holdings Pty Ltd and Ballarat Goldfields N.L. dated 17
October 2006 proposing a Ballarat Goldfields N.L. Scheme of Arrangement.
PLACEMENT SHARES means 149 million fully paid ordinary shares in the
capital of the Company.
RELEVANT INTEREST has the same meaning as given by sections 608 and 609 of
the Act.
SCHEME means the scheme of arrangement under Part 5.1 of the Act between
Ballarat Goldfields N.L. and its members, which if implemented will give
effect to the merger between Lihir Australian Holdings Pty Ltd and
Ballarat Goldfields N.L. pursuant to the Merger Implementation Agreement.
SUBSCRIPTION COMPLETION means the completion of the subscription for and
allotment and issue of the Placement Shares as provided for in clause 3.
2.
SUBSCRIPTION DATE means the date which is 5 Business Days after the date
of this Agreement.
SUBSCRIPTION PRICE means $41.72 million for the Placement Shares or $0.28
per Placement Share.
WARRANTY OR WARRANTIES means the warranties, undertakings and
representations set out in clause 6.
1.2 RULES FOR INTERPRETING THIS DOCUMENT
Headings are for convenience only, and do not affect interpretation. The
following rules also apply in interpreting this document, except where the
context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) (LEGISLATION) legislation (including subordinate legislation)
is to that legislation as amended, re-enacted or replaced, and
includes any subordinate legislation issued under it;
(ii) (DOCUMENTS/AGREEMENTS) a document or agreement, or a provision
of a document or agreement, is to that document, agreement or
provision as amended, supplemented, replaced or novated;
(iii) (PARTIES) a party to this document or to any other document or
agreement includes a permitted substitute or a permitted
assign of that party;
(iv) (DOLLARS) or $ is a reference to the lawful currency of
Australia;
(v) (PERSONS) a person includes any type of entity or body of
persons, whether or not it is incorporated or has a separate
legal identity, and any executor, administrator or successor
in law of the person; and
(vi) (PARTS OF THINGS) anything (including a right, obligation or
concept) includes each part of it.
(b) (NUMBER) A singular word includes the plural, and vice versa.
(c) (GENDER) A word which suggests one gender includes the other
genders.
(d) (PARTS OF SPEECH) If a word is defined, another part of speech has a
corresponding meaning.
(e) (EXAMPLES) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes something
else, the example does not limit the scope of that thing.
(f) The word AGREEMENT includes an undertaking or other binding
arrangement or understanding, whether or not in writing. ()
3.
(g) The words SUBSIDIARY, HOLDING COMPANY and RELATED BODY CORPORATE
have the same meanings as in the Act.
(h) (TIME) Unless the contrary intention appears a reference in this
agreement to time is a reference to Australian Eastern Standard
time.
1.3 BUSINESS DAYS
If the day on or by which a person must do something under this document
is not a Business Day:
(a) if the act involves a payment that is due on demand, the person must
do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day.
2. SUBSCRIPTION FOR PLACEMENT SHARES
On the Subscription Date the Subscriber must subscribe for and pay the
Subscription Price for the Placement Shares, and the Company must allot
and issue the Placement Shares to the Subscriber.
3. SUBSCRIPTION COMPLETION
3.1 TIME AND PLACE
Subscription Completion must take place on the Subscription Date at the
offices of Xxxxx & XxXxxxxx, Xxxxx 00, 000 Xxxxxxx Xxxxxx Xxxxxxxxx at
llam or at any other date, time or place that the parties agree in
writing.
3.2 SUBSCRIBER'S OBLIGATIONS
At Subscription Completion the Subscriber must:
(a) give to the Company a duly executed application for the Placement
Shares in the form of schedule 1 or in any other form the Company
may agree to accept; and
(b) pay the Subscription Price for the Placement Shares in cash, by
telegraphic transfer, by bank cheque or in any other form that the
Company may agree to accept as payment.
3.3 COMPANY'S OBLIGATIONS
At Subscription Completion the Company must:
(a) allot and issue the Placement Shares to the Subscriber;
(b) enter the name of the Subscriber in the register of members of the
Company in respect of the Placement Shares and give the Subscriber a
holding statement showing the Subscriber as the holder of the
Placement Shares; and
4.
(c) take all other steps required under the Constitution, ASTC
Settlement Rules, the Listing Rules and the Act to constitute and
evidence the Subscriber as the holder of the Placement Shares.
3.4 QUOTATION OF PLACEMENT SHARES
On or as soon as possible after Subscription Completion the Company must
apply to ASX for official quotation of the Placement Shares.
3.5 USE OF PROCEEDS
The Company must use the proceeds of the issue of the Placement Shares
solely for the Ballarat Goldfields East Project and for no other purpose.
4. INFORMATION NOTIFICATION AND ANNOUNCEMENTS
4.1 INFORMATION NOTIFICATION
Contemporaneously with Subscription Completion, the Company must issue the
Information Notification to ASX which states that, in accordance with
clause 6.3(f), there is no excluded information of the kind referred to in
clauses 708A(6)(e), (7) and (8) of the Act.
4.2 SUBSTANTIAL HOLDER NOTICE
Subscriber will lodges a substantial holder notice in respect of the
Placement Shares in accordance with Part 6C.1 of the Act.
4.3 ANNOUNCEMENTS
The Company will, upon execution of this Agreement, make an announcement
to ASX of the investment by the Subscriber in the Company (on terms
previously agreed with the Subscriber). Subject to that announcement,
neither party will make any public announcement in relation to the
investment by the Subscriber in the Company without the prior consent of
the other party or as required by law.
5. CONFIDENTIALITY
5.1 CONFIDENTIALITY
Any information relating to the Company, its assets, businesses, financial
affairs and operations which is disclosed or comes to the attention of the
Subscriber in connection with this document is and will be taken to be
confidential information for the purposes of the Confidentiality
Agreement.
5.
6. WARRANTIES AND REPRESENTATIONS
6.1 BY EACH PARTY GENERALLY
Each party represents and warrants that:
(a) (STATUS) it is a company duly incorporated in Victoria;
(b) (POWER) it has full legal capacity and power:
(i) to own its property and to carry on its business; and
(ii) to enter into this document and to carry out the transactions
that it contemplates;
(c) (CORPORATE AUTHORITY) it has taken all corporate action that is
necessary or desirable to authorise its entry into this document and
its carrying out the transactions that it contemplates;
(d) (AUTHORISATIONS) it holds each Authorisation that is necessary or
desirable to:
(i) execute this document and to carry out the transactions that
it contemplates;
(ii) ensure that this document is legal, valid, binding and
admissible in evidence; or
(iii) enable it to properly carry on its business,
and it is complying with any conditions to which any of these
Authorisations are subject;
(e) (DOCUMENTS EFFECTIVE) this document constitutes its legal, valid and
binding obligations, enforceable against it in accordance with its
terms (except to the extent limited by equitable principles and laws
affecting creditors' rights generally), subject to any necessary
stamping or registration;
(f) (NO CONTRAVENTION) neither its execution of this document nor the
carrying out by it of the transactions that it contemplates, does or
will:
(i) contravene any law to which it or any of its property is
subject or any order of any Government Agency that is binding
on it or any of its property;
(ii) contravene any Authorisation;
(iii) contravene any undertaking or instrument binding on it or any
of its property; or
(iv) contravene its constitution;
(h) (NO LITIGATION) no litigation, arbitration, mediation, conciliation
or administrative proceedings are taking place, pending, or to its
knowledge or to the knowledge of
6.
any of its officers after due inquiry, threatened which, if
adversely decided, could have a Material Adverse Effect on it its
ability to perform its obligations under this document;
(i) (NO CONTROLLER) no receiver or receiver and manager or mortgagee in
possession is currently appointed or acting in relation to any of
its property; and
(j) (NO TRUST) it is not entering into this document as trustee of any
trust or settlement.
6.2 BY THE COMPANY
The Company represents and warrants to the Subscriber, as an inducement to
the Subscriber to enter into this document, and it is a condition of this
agreement that at the date of this document:
(a) (SOLVENCY) the Company is able to pay its debts as and when they
fall due;
(b) (STATUS) it is a company limited by shares under the Act and listed
on ASX;
(c) (EVENTS) nothing has happened since 30 June 2006 within the
Company's knowledge which has a Material Adverse Effect on the
Company Group except for such information which is in the public
domain;
(d) (CONSTITUTION) the Constitution is in the form of the copy
previously provided by the Company to the Subscriber with no further
amendment or variation;
(e) (SHARE ISSUES) other than as disclosed in Annexure A, there are no
agreements, arrangements or understandings in force or securities
issued which call for the present or future issue of, or grant to
any person the right to require the issue of any shares or any other
equity securities in the Company (including options);
(f) (DISCLOSURES) the information about the Company, its Business and
assets disclosed to the Subscriber before the date of this agreement
is true, complete and accurate and is not misleading in any material
respect;
(g) (DISCLOSURE) the Company has complied with its obligations under
Listing Rule 3.1;
(h) (IP) all the Intellectual Property which is used by the Company does
not infringe the rights of any third party and the Company has not
been notified of any claim for infringement of any third party
rights in relation to Intellectual Property; and ((i)(NO BREACH)
this agreement and Subscription Completion do not conflict with or
result in a breach of any obligation (including any statutory,
contractual or fiduciary obligation) or constitute or result in any
default under any provision of its Constitution or any material
provision of any agreement, deed, writ, order, injunction,
judgement, law, rule or regulation to which it is a party or is
subject or by which it is bound;
(j) (COMPLIANCE WITH LAWS) the Company and its subsidiaries have
complied in all material respects with all material Australian and
foreign laws and regulations applicable to them and have all
material licenses, permits and franchises necessary for them to
conduct their respective businesses as presently being conducted;
and
7.
(k) (PERMITS AND APPROVALS) the Company and its subsidiaries have all the
mining licenses, environmental approvals (including a properly assessed
and approved Environmental Effects Statement), planning permits , approved
work plans and other consents necessary for the development and mining of
the Ballarat Goldfields East Project.
6.3 ON-SALE RESTRICTIONS: COMPANY'S REPRESENTATIONS AND WARRANTIES
For the purposes of sections 707 and 708A of the Act, the Company
represents and warrants to the Subscriber, as an inducement to the
Subscriber to enter into this document, and as a condition of this
Agreement at the date of this document:
(a) the Company is not issuing the Placement Shares for the purpose of
the Subscriber selling or transferring them, or granting issuing or
transferring interests in, or options over them within 12 months
after their issue;
(b) there is no ASIC determination pursuant to subsection 708A(2) of
the Act in force in respect of the Company;
(c) the Company satisfies each of the preconditions to the case 1
exemption set out in subsection 708A(5)(a) - (d) of the Act;
(d) the Company will issue an Information Notification to the ASX
contemporaneously with Subscription Completion;
(e) as at the date of the Information Notification, the Company has, and
will have, complied with:
(i) the provisions of Chapter 2M of the Act as they apply to the
Company; and
(ii) section 674 of the Act; and
(f) there is no excluded information of the kind referred to in clause
708A(6)(e), (7) and (8) of the Act.
6.4 CORRECTION OF INFORMATION NOTIFICATION
The Company will comply with subsection 708A(9) of the Act to correct any
defective Information Notification should it become aware of a defect
within 12 months of the date of issue of the Placement Shares.
6.5 SUBSCRIBER'S REPRESENTATIONS AND WARRANTIES
The Subscriber represents and warrants to the Company, as an inducement to
the Subscriber to enter into this document, and as a condition of this
Agreement at the date of this document that:
(a) it is aware that no disclosure document has been prepared in
connection with the proposed issue of the Placement Shares; and
8.
(b) it is not acquiring the Placement Shares for the purpose of selling
or transferring them, or granting, issuing or transferring interests
in, or options over, them within 12 months after their issue.
6.6 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Company acknowledges that the Subscriber has entered into this
agreement and has agreed to subscribe for the Placement Shares in reliance
on the representations and warranties in clauses 6.1, 6.2 and 6.3.
6.7 WARRANTIES NOT EXTINGUISHED OR AFFECTED
The Warranties are not extinguished or affected by any investigation made
by or on behalf of a Subscriber into the affairs of the Company or by any
other event or matter unless:
(a) the Subscriber has given a specific written waiver or release; or
(b) the claim relates to a thing done or not done after the date of this
agreement at the request or with the approval of the Subscriber.
6.8 UPDATE OF DISCLOSURES
If, after the date of this agreement, the Company becomes aware of
anything (CIRCUMSTANCE) which would cause a Warranty to be not true and
accurate, or to be misleading in a material respect it will promptly give
a notice to the Subscriber detailing the nature and effect of the
Circumstance.
7. NOTICES
Any communication under or in connection with this agreement:
(a) must be in writing;
(b) must be addressed as shown below:
BALLARAT GOLDFIELDS N.L.
Address: 00 Xxxxxxxx Xxxxx Xxxxx
Xx Xxxxx, Xxxxxxxx 0000, Xxxxxxxxx
Fax No: 03 5331 7927
For the attention of: the Managing Director
LIHIR AUSTRALIAN HOLDINGS PTY LTD
Address: Level 9, AAMI Building
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 0000, Xxxxxxxxx
Fax No: 07 3318 9203
9.
For the attention of: Investor Relations Manager
(or as otherwise notified by that party to the other party from time
to time);
(c) must be signed by the party making the communication or by a person
duly authorised by that party;
(d) must be delivered or posted by prepaid post to the address, or sent
by fax to the number of the addressee, in accordance with clause
7(b); and
(e) will be deemed to be received by the addressee:
(i) (in the case of prepaid post) on the third business day after
the date of posting;
(ii) (in the case of fax) at the local time (in the place of
receipt of that fax) which then equates to the time at which
that fax is sent as shown on the transmission report which is
produced by the machine from which that fax is sent and which
confirms transmission of that fax in its entirety, unless that
local time is not a Business Day, or is after 5.00pm on a
Business Day, when that communication will be deemed to be
received at 9.00am on the next Business Day; and
(iii) (in the case of delivery by hand) on delivery at the address
of the addressee as provided in clause 7(b), unless that
delivery is not made on a Business Day, or after 5.00pm on a
Business Day, when that communication will be deemed to be
received at 9.00am on the next Business Day.
8. AMENDMENT AND ASSIGNMENT
8.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
8.2 ASSIGNMENT
A party may only dispose of, declare a trust over or otherwise create an
interest in its rights under this document with the consent of each other
party.
9. GENERAL
9.1 GOVERNING LAW
(a) (LAW) This document is governed by the law in force in Victoria.
(b) (JURISDICTION) Each party submits to the non-exclusive jurisdiction
of the courts exercising jurisdiction in Victoria, and any court
that may hear appeals from any of those courts, for any proceedings
in connection with this document, and waives any right it might have
to claim that those courts are an inconvenient forum.
10.
9.2 LIABILITY FOR EXPENSES
(a) (EXPENSES) Subject to paragraph (b), each party must pay its own
expenses incurred in negotiating, executing and registering this
document.
(b) (STAMP DUTY) The Subscriber and Company must indemnify each other
party against, and must pay each other party on demand the amount
of, any duty that is payable on or in relation to this document and
the transactions that it contemplates.
9.3 GIVING EFFECT TO THIS DOCUMENT
Each party must do anything (including execute any document), and must
ensure that its employees and agents do anything (including execute any
document), that any other party may reasonably require to give full effect
to this document.
9.4 WAIVER OF RIGHTS
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) (CONDUCT) 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) (ONE OCCASION) 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) (further EXERCISE) the exercise of a right does not prevent any
further exercise of that right or of any other right.
9.5 OPERATION OF THIS DOCUMENT
(a) (RIGHTS PRESERVED) Any right that a person may have under this
document is in addition to, and does not replace or limit, any other
right that the person may have.
(b) (SEVERANCE) Any provision of this document which is unenforceable or
partly unenforceable is, where possible, to be severed to the extent
necessary to make this document enforceable, unless this would
materially change the intended effect of this document.
9.6 ASSIGNMENT
No party may assign its rights or obligations under this Agreement without
the written consent of the other parties.
9.7 NO MERGER
No provision of this Agreement merges in or by virtue of Subscription
Completion.
11.
9.8 COUNTERPARTS
This document may be executed in counterparts. If so, the signed copies
are treated as making up the one document and the date on which the last
counterpart is executed will be the date of the Agreement.
9.9 ATTORNEYS
Each person who executes this document on behalf of a party under a power
of attorney declares that he or she is not aware of any fact or
circumstance that might affect his or her authority to do so under that
power of attorney.
9.10 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.
12.
SCHEDULE 1
(Clause 3.2)
APPLICATION FOR PLACEMENT SHARES
To: Ballarat Goldfields N.L.
Lihir Australian Holdings Pty Ltd (APPLICANT) applies and agrees to subscribe
for 149 million fully paid ordinary shares in the capital of Ballarat Goldfields
N.L. (APPLICANT'S SHARES). Accompanying this application is the Subscription
Price in the amount of $41.72 million. The applicant agrees to be bound, on
allotment of the applicant's shares to it, by the terms of the constitution of
Ballarat Goldfields N.L. and requests that its name be entered in the register
of members of Ballarat Goldfields N.L. in respect of the applicant's shares and
for a holding statement to be issued to it.
DATED
13.
EXECUTED as an agreement.
EXECUTED by LIHIR AUSTRALIAN
HOLDINGS PTY LTD:
/s/ Xxxxxx Xxxxxxx /s/ A Hood
----------------------------- --------------------------------
Signature of director Signature of director/secretary
XXXXXX XXXXXXX A Hood
Name Name
EXECUTED by BALLARAT
GOLDFIELDS N.L.:
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------- --------------------------------
Signature of director Signature of director/secretary
XXXXXXX XXXXXXXX XXXXXXX XXXXXXXX
Name Name
14.
