Exhibit 4(f)
Share Sale and Purchase
Agreement
Rio Tinto Western Holdings Limited
Lihir Gold Limited
Aliens Xxxxxx Xxxxxxxx
Stock Exchange Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Tel 00 0 0000 0000
FAX 00 0 0000 0000
xxx.xxx.xxx.xx
Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 1
1.3 Extent of releases 1
2. CONDITION 1
2.1 Condition 1
2.2 Satisfaction of conditions 1
3. SALE AND PURCHASE OF THE SALE SHARES 1
3.1 Sale and purchase 1
3.2 Title and property 1
3.3 Purchase price 1
4. DEFERRED CONSIDERATION 1
4.1 Deferred Component 1
4.2 Deferred Tax Component 1
4.3 Bank account 1
5. COMPLETION 1
5.1 Completion and Completion Date 1
5.2 Transfer of Sale Shares 1
5.3 Other transactions to occur at Completion 1
5.4 Sequence of actions 1
6. RELEASES AND INDEMNITIES 1
6.1 Releases and indemnities 1
6.2 Monthly reports 1
7. ACKNOWLEDGEMENT 1
8. NON-FOMENTATION 1
9. RIGHTS OF RIO TINTO 1
10. EMPLOYEE MATTERS 1
10.1 Release of Rio Tinto Group employees 1
10.2 Employment of Xxxxxxx Xxxxxxx 1
10.3 Resignation of Xxxxxxxx Xxxxxxx 1
10.4 Meetings with underwriters 1
11. BOARD REPRESENTATION 1
12. WARRANTIES 1
12.1 Warranties by Vendor 1
12.2 Warranties by Purchaser 1
13. RIO TINTO GROUP POLICIES AND INITIATIVES 1
13.1 Rio Tinto Group policies 1
13.2 Rio Tinto initiatives 1
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
14. CONSULTATION WITH RIO TINTO GROUP PERSONNEL, ACCESS TO RECORDS, AND
ACCESS TO DATA, REPORTS AND INFORMATION 1
14.1 Consultation with Rio Tinto Group personnel 1
14.2 Access to records 1
14.3 Access to data, reports and information 1
15. INSURANCE CLAIM 1
16. LIHIR PROJECT INFORMATION 1
17. NON-SOLICITATION 1
18. CONFIDENTIALITY 1
18.1 SEC filing 1
18.2 Undertaking 1
18.3 Permitted disclosure 1
19. ENTIRE AGREEMENT 1
20. AMENDMENT 1
21. ASSIGNMENT 1
22. NO WAIVER 1
23. COSTS AND STAMP DUTY 1
24. MERGER 1
25. FURTHER ASSURANCES 1
26. ABSOLUTE BAR 1
27. SEVERABILITY OF PROVISIONS 1
28. MORATORIUM LEGISLATION 1
29. ENUREMENT 1
30. GOVERNING LAW 1
31. COUNTERPARTS 1
32. NOTICES 1
Page(ii)
Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
DATE 10 October 2005
PARTIES
1. RIO TINTO WESTERN HOLDINGS LIMITED (Company No. 00007132) a company
registered in the United Kingdom whose registered office is 0 Xx.
Xxxxx'x Xxxxxx, Xxxxxx, XX0X 0XX (the VENDOR)
2. LIHIR GOLD LIMITED a company incorporated in Papua New Guinea of Xxxxx
0, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx Xxxxxx and Xxxxxxxx Street, Port
Moresby (the PURCHASER)
RECITALS
A LMC is the manager of the Lihir Project.
B The Vendor is the beneficial owner of the Sale Shares, which comprise
100% of the issued shares in the capital of LMC.
C In furtherance of an agreement by the Purchaser and the Rio Tinto
Group to terminate the existing management arrangements in relation to
the Lihir Project, the Vendor has agreed to sell, and the Purchaser
has agreed to purchase, the Sale Shares on the terms set out in this
Agreement.
D By letter dated 14 September 2005 to the Purchaser's solicitors, Xxxxx
Xxxxxx Xxxxxxx, the Bank of Papua New Guinea granted authority to
execute this Agreement and to give the indemnities set out herein
under the Papua New Guinea Central Banking (Foreign Exchange and Gold)
Regulation.
E On 16 September 2005, the Purchaser released a statement to the
Australian Stock Exchange in relation to the subject matter of this
Agreement and related matters.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
COMPLETION means completion of the sale and purchase of the Sale Shares
under this Agreement, as provided in Clause 5.
COMPLETION COMPONENT has the meaning given in Clause 3.3(a).
COMPLETION DATE means 4 October 2005 or such other date as may be agreed
between the Parties.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
DEED OF ACCESSION AND AMENDMENT means the Deed of Accession and Amendment
dated 17 March 1995 between Kennecott Explorations (Australia) Ltd, Niugini
Mining Limited, LMC and Mineral Resources Lihir Pty Limited.
DEFERRED COMPONENT has the meaning given in Clause 3.3(b).
DEFERRED TAX COMPONENT has the meaning given in Clause 3.3(c).
DIVIDEND means a dividend of US$2,450,000.00 declared by the Company on 7th
October 2005.
EFFECTIVE CONTROL means the capacity to determine (whether by influence or
by exercise of enforceable rights) the outcome of decisions regarding the
financial or operating policies of the Purchaser.
GENERAL TERMINATION AND RELEASE DEED means the deed of that name between
the Vendor, the Purchaser, LMC and Rio Tinto plc, in the form initialled by
the Parties, to be executed at Completion in accordance with Clause 5.
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GOVERNMENT APPROVALS means the approval of any Governmental Agency,
including approval of the Bank of Papua New Guinea (under the Central
Banking (Foreign Exchange and Gold) Regulation, Chapter No. 138) to the
Transaction.
GUARANTEE means the Guarantee dated 22 May 1995 of the financial
obligations of LMC under the Management Agreement, given by the Vendor to
the Purchaser.
LIHIR PROJECT means the gold mining project on Niolam Island (commonly
referred to as Lihir Island) in Papua New Guinea.
LIHIR PROJECT JOINT VENTURE AGREEMENT means the Joint Venture Agreement
dated 10 May 1990 between Kennecott Explorations (Australia) Ltd and
Niugini Mining Limited, as amended and restated pursuant to the Deed of
Amendment and Restatement of Lihir Project Joint Venture Agreement dated 6
August 1993 between Kennecott Explorations (Australia) Ltd and Niugini
Mining Limited and further amended pursuant to the Deed of Accession and
Amendment.
LIHIR PROJECT MANAGEMENT AGREEMENT means the Lihir Project Management
Agreement dated 6 August 1993 between LMC, Kennecott Explorations
(Australia) Ltd and Niugini Mining Limited as amended pursuant to the Deed
of Accession and Amendment.
LMC means Lihir Management Company Limited, a company incorporated under
the laws of Papua New Guinea, of Xxxxx 0, Xxxxxxx Xxxxx, Xxx Xxxxxxxx
Xxxxxx & Xxxxxxxx Street, Port Moresby, Papua New Guinea.
LOCAL COMMUNITY AGREEMENT means any compensation agreement, relocation
agreement or similar agreement or understanding (including related trust
arrangements) entered into with any local community group by LMC, Kennecott
Explorations (Australia) Ltd, Niugini Mining Limited, the Purchaser or any
other proponent (from time to time) of the Lihir Project.
LOCAL COMMUNITY CLAIMS has the meaning given in Clause 6.1(c)(i).
MANAGEMENT AGREEMENT means the Management Agreement dated 17 March 1995
between the Purchaser and LMC.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
MANAGER means the manager of the Lihir Project.
PARTIES means the parties to this Agreement.
RELATED CORPORATION has the meaning given to that term in the Companies Xxx
0000 (PNG), and in relation to the Vendor, includes any other member of the
Rio Tinto Group.
RIO TINTO means the Rio Tinto Group and the directors, officers, employees,
agents and representatives of each member of the Rio Tinto Group.
RIO TINTO GROUP means each of Rio Tinto Limited and Rio Tinto plc,
incorporated in England and Wales, and any company or other corporate
entity or enterprise which directly or indirectly controls, is controlled
by or is under common control, with Rio Tinto Limited or Rio Tinto plc. For
this purpose, CONTROL means the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies through
ownership of voting securities, contract, voting trust or otherwise.
RIO TINTO RIGHTS has the meaning given under Clause 9.
SALE SHARES means two ordinary shares each fully paid in LMC, together with
the benefit of all rights (including dividend rights but excluding the
Dividend) attached or accruing to those shares at Completion, one share
being registered in the name of the Vendor and the second share being
registered in the name of Rio Tinto Nominees Limited.
SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind or any other
right of, or arrangement with, any creditor to have its claim satisfied in
priority to other creditors with, or from the proceeds of, any asset.
SERVICE means any service of a technical or commercial nature provided by
Rio Tinto to the Purchaser or LMC prior to Completion.
TECHNICAL AND PROCUREMENT SERVICES AGREEMENT means the agreement of that
name between the Purchaser, Technological Resources Pty Limited and Rio
Tinto Services Limited, in the form initialled by the Parties, to be
executed at Completion in accordance with Clause 5.
TECHNICAL SUPPORT AGREEMENT means the Technical Support Agreement dated 30
June 1995 between LMC and Rio Tinto plc under which Rio Tinto plc agrees to
provide technical and support services to LMC in connection with LMC's
obligations under the Management Agreement.
TRANSACTION means the sale of Share Sales by the Vendor to the Purchaser,
the termination of the existing management arrangements in relation to the
Lihir Project and the implementation of various associated arrangements,
including the establishment of a transitional technical and procurement
services arrangement between the Rio Tinto Group and the Purchaser.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The singular includes the plural, and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(d) A reference to a person includes a corporation, trust, partnership,
unincorporated body or other entity, whether or not it comprises a
separate legal entity.
(e) A reference to a Clause is a reference to a clause of this Agreement.
(f) A reference to a party to this Agreement or another agreement or
document includes the party's successors, permitted substitutes and
permitted assigns (and, where applicable, the party's legal personal
representatives).
(g) A reference to an agreement or document (including a reference to this
Agreement) is to the agreement or document as amended, supplemented,
novated or replaced, except to the extent prohibited by this Agreement
or that other agreement or document, and includes the recitals and
schedules to that agreement or document.
(h) A reference to legislation or to a provision of legislation includes a
modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(i) A reference to dollars or $ is to the currency of the United States of
America.
(j) A reference to a right or obligation of any two or more people
comprising a single party confers that right, or imposes that
obligation, as the case may be, on each of them severally and each two
or more of them jointly. A reference to that party is a reference to
each of those people separately (so that, for example, a
representation or warranty by that party is given by each of them
separately).
(k) A reference to conduct includes an omission, statement or undertaking,
whether or not in writing.
(l) Mentioning anything after includes, including, for example, or similar
expression does not limit what else might be included.
1.3 EXTENT OF RELEASES
In this Agreement, unless the context otherwise requires:
(a) a release from costs, claims, actions, demands, proceedings and
liabilities by or in favour of a corporation extends to any Related
Corporation of the corporation and to the directors, officers,
employees, agents and representatives from time to time of the
corporation and any such Related Corporation; and
(b) a release from costs, claims, actions, demands, proceedings and
liabilities by or in favour of a person who is an officer of a
corporation applies to that person personally and in that person's
capacity as such officer.
2. CONDITION
2.1 CONDITION
This Agreement is subject to, and conditional upon:
(a) obtaining the authority of the Bank of Papua New Guinea under the
Papua New Guinea Central Banking (Foreign Exchange and Gold)
Regulation (in a form satisfactory to the Vendor and the Purchaser) in
relation to the indemnities and guarantees to be given by the
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
Purchaser and LMC (as applicable) in this Agreement, the General
Termination and Release Deed and the Technical and Procurement
Services Agreement; and
(b) a resolution approving the Transaction having been duly passed by the
directors of the Purchaser, it being understood that Xxxx X'Xxxxxx and
Xxxx Xxxx will not participate in the passing of such resolution.
2.2 SATISFACTION OF CONDITIONS
The Parties acknowledge that the conditions set out in Clause 2.1 have been
satisfied.
3. SALE AND PURCHASE OF THE SALE SHARES
3.1 SALE AND PURCHASE
The Vendor, as legal and beneficial owner, agrees to sell the Sale Shares
free from all Security Interests, and the Purchaser agrees to buy the Sale
Shares, on the terms set out in this Agreement.
3.2 TITLE AND PROPERTY
Title to and property in the Sale Shares will, subject to the provisions of
this Agreement, pass to the Purchaser on Completion.
3.3 PURCHASE PRICE
The purchase price for the Sale Shares will be:
(a) two Kina, payable at Completion (the COMPLETION COMPONENT); plus
(b) a deferred amount equal to the sum of:
(i) LMC's total cash holding as at Completion less any amount of the
Dividend remaining unpaid as at Completion; and
(ii) all moneys owing by the Purchaser to LMC as at Completion,
including all outstanding or accrued management fees owing to LMC
by the Purchaser under the Management Agreement for the period up
to and including the Completion Date; less
(iii) all moneys accrued or owing by LMC to the Purchaser as at
Completion,
(the DEFERRED COMPONENT); plus
(c) an additional deferred amount equal to the net income tax credit
available to LMC as at the Completion Date (after taking into account
any income tax liability referable to the period from 1 January 2005
to the Completion Date), as disclosed by the pro forma tax return
referred to in Clause 4.2 below, such credit being comprised largely
of the amounts referable to 2005 provisional income tax instalments
paid by LMC (the DEFERRED TAX COMPONENT).
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4. DEFERRED CONSIDERATION
4.1 DEFERRED COMPONENT
The Deferred Component must be determined on the basis of audited accounts
for LMC prepared as at the Completion Date. The Purchaser must arrange for
such accounts to be prepared and audited as soon as possible following
Completion. The Deferred Component must be paid by the Purchaser to the
Vendor by electronic funds transfer in immediately available funds to the
bank account nominated in Clause 4.3 within seven days after the date on
which the auditor of LMC has issued an audit opinion in respect of the
accounts.
4.2 DEFERRED TAX COMPONENT
The Deferred Tax Component must be determined on the basis of a pro forma
tax return for LMC prepared in respect of the period from 1 January 2005 to
the Completion Date. The Purchaser must arrange for such pro forma tax
return to be prepared by its tax accountants as soon as possible after
Completion, and for a tax return for the 2005 tax year to be lodged by LMC
as soon as possible after 31 December 2005. The Deferred Tax Component must
be paid to the Vendor by electronic funds transfer in immediately available
funds to the bank account nominated in Clause 4.3 on or before the earlier
of:
(a) seven days after receipt by LMC of any tax refund in respect of the
2005 tax year, or any application, to any tax liability of LMC, the
Purchaser or any of its Related Corporations, of any part of a tax
credit due to LMC in respect of any of the provisional income tax
instalments referred to in Clause 3,3(c); and
(b) 30 September 2006.
4.3 BANK ACCOUNT
The details of the bank account nominated by the Vendor are as follows:
Bank XX Xxxxxx Chase Bank, New York
Swift Id: XXXXXX00
ABA Routing No: 000000000
A/c Name: Rio Tinto Finance plc
A/c No: 9102772986
5. COMPLETION
5.1 COMPLETION AND COMPLETION DATE
Completion of the sale and purchase of the Sale Shares must take place at
the offices of Rio Tinto Limited, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx on the
Completion Date at 11 am or at such other time and place as the Parties may
agree.
5.2 TRANSFER OF SALE SHARES
At Completion:
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(a) the Vendor will deliver to the Purchaser:
(i) an instrument of transfer of one Sale Share in registrable form
in favour of the Purchaser and duly executed by the Vendor; and
(ii) an instrument of transfer of the second Sale Share in registrable
form in favour of the Purchaser and duly executed by Rio Tinto
Nominees Limited,
together with the share certificates for the Sale Shares;
(b) the Purchaser will pay the Completion Component to the Vendor;
(c) the Purchaser will execute the instrument of transfer referred to in
paragraph (a);
(d) the Purchaser will nominate two persons to be directors of LMC and
will deliver a consent to act as a director signed by each such
person; and
(e) the Vendor will procure the convening of a meeting of the directors of
LMC at which:
(i) the executed instrument of transfer of the Sale Shares and the
share certificate to which it relates will be tabled;
(ii) the directors will resolve that, subject only to stamping, the
transfer be approved, the old share certificate be destroyed and
a new share certificate be issued in the name of the Purchaser;
(iii) the consents to act as a director referred to in paragraph (d)
will be tabled;
(iv) the directors will resolve that the two persons nominated under
paragraph (d) be appointed as directors of LMC;
(v) resignations of each director other than the directors referred
to in sub-paragraph (iv) will be tabled; and
(vi) the directors will resolve that the resignations referred to in
sub-paragraph (v) be accepted with effect from the closure of the
meeting.
5.3 OTHER TRANSACTIONS TO OCCUR AT COMPLETION
Following the holding of the meeting of the directors of LMC referred to in
Clause 5.2(e):
(a) the Purchaser will execute the Technical and Procurement Services
Agreement;
(b) the Purchaser will procure the convening of a meeting of the directors
of LMC at which the directors will resolve that the General
Termination and Release Deed be executed by LMC;
(c) the Purchaser will execute, and will procure LMC to execute, the
General Termination and Release Deed;
(d) the Vendor will procure Technological Resources Pty Ltd and Rio Tinto
Services Limited to execute the Technical and Procurement Services
Agreement; and
(e) the Vendor will execute, and will procure Rio Tinto plc to execute,
the General Termination and Release Deed.
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5.4 SEQUENCE OF ACTIONS
All actions taken as required at Completion by Clauses 5.2 and 5.3 will be
deemed to be taken in the order set out therein and Completion will be
deemed to have occurred at the time all such actions are completed.
6. RELEASES AND INDEMNITIES
6.1 RELEASES AND INDEMNITIES
With effect on and from Completion:
(a) the Purchaser releases and indemnifies Rio Tinto from and in respect
of all costs, claims, actions, demands, proceedings and liabilities of
any description incurred by LMC or Rio Tinto in relation to the Lihir
Project in connection with, or in any way related to, the Lihir
Project Joint Venture Agreement, the Lihir Project Management
Agreement, the Management Agreement, the Technical Support Agreement,
the Guarantee and the Services unless such costs, claims, actions,
demands, proceedings and liabilities result from wilful default
involving a conscious breach or fraud by LMC or Rio Tinto prior to
Completion;
(b) without limiting the effect of other releases in favour of Rio Tinto,
the Purchaser releases Rio Tinto from all liabilities that it has or
might have by reason of any claim or allegation that, at any time
prior to Completion. Rio Tinto exercised Effective Control of the
Purchaser in relation to the management or conduct of the Lihir
Project, except to the extent that the claim or allegation is based
on, or a direct consequence of, a finding of:
(i) breach of directors' duties;
(ii) oppression of minority shareholders; or
(iii) fraud; and
(c) without limiting the effect of other releases and indemnities in
favour of Rio Tinto, the Purchaser:
(i) releases Rio Tinto from all costs, claims, actions, demands,
proceedings and liabilities of any description incurred by Rio
Tinto (LOCAL COMMUNITY CLAIMS) arising under, or in any way
relating to, Local Community Agreements; and
(ii) indemnifies Rio Tinto in respect of any sums which Rio Tinto
becomes liable to pay by reason of any judgment, award of
damages, arbitral award, settlement or compromise in respect of
Local Community Claims arising under or in any way connected with
Local Community Agreements, provided that:
(A) Rio Tinto will not compromise or settle any Local Community
Claims without obtaining the prior written consent of the
Purchaser; and
(B) the Purchaser's liability to indemnify Rio Tinto pursuant to
this Clause extends only to claims which relate to or arise
in connection with the Lihir Project.
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6.2 MONTHLY REPORTS
The Vendor will procure the relevant member of the Rio Tinto Group to
provide the Purchaser with a monthly report on the status of any Local
Community Claim referred to in Clause 6.1(c)(ii) and will update such
report if there is a material change in the status of such Local Community
Claim. The Vendor will also procure the relevant member of the Rio Tinto
Group to provide the Purchaser with reasonable access, upon reasonable
notice, to relevant advice and documents in relation to any such Local
Community Claim.
7. ACKNOWLEDGEMENT
The Purchaser acknowledges that it is not aware of:
(a) any breach of the Management Agreement by LMC;
(b) any wilful default involving a conscious breach or fraud by LMC or Rio
Tinto; or
(c) any other matters or circumstances that might give rise to a claim
against Rio Tinto in connection with the Management Agreement, the
Technical Support Agreement, the Guarantee, the Services or the Lihir
Project generally.
8. NON-FOMENTATION
The Purchaser agrees that it will not procure, encourage or assist in any
manner whatsoever, whether directly or indirectly, any other person in
relation to any claim against Rio Tinto in connection with:
(a) any act or omission of the Rio Tinto Group as a shareholder of LMC or
the Purchaser;
(b) any act or omission of any director, officer, employee, agent or
representative of the Rio Tinto Group, including while seconded to, a
director of, or otherwise providing services to, LMC or the Purchaser;
or
(c) the Management Agreement, the Technical Support Agreement, the
Guarantee, the Services or the Lihir Project,
save that it is acknowledged and agreed that nothing in this Clause 8
precludes the Purchaser from joining any member of the Rio Tinto Group as a
party in any proceeding if it is otherwise entitled to do so.
9. RIGHTS OF RIO TINTO
Under this Agreement, the Purchaser has given certain releases,
indemnities, acknowledgements and undertakings in favour of Rio Tinto (RIO
TINTO RIGHTS). The Purchaser acknowledges that:
(a) the Rio Tinto Rights are held by the Vendor on trust for the benefit
of each member of the Rio Tinto Group and its respective directors,
officers, employees, agents and representatives; and
(b) where applicable, each member of the Rio Tinto Group and its
respective directors, officers, employees, agents and representatives
may directly enforce the Rio Tinto Rights against the Purchaser.
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10. EMPLOYEE MATTERS
10.1 RELEASE OF RIO TINTO GROUP EMPLOYEES
Subject to the prior agreement of Xxx Xxxxxxxx and Xxxx Xxxxxx to the
transfer of their employment to the Purchaser, with effect on and from
Completion:
(a) the Vendor will procure that Xxx Xxxxxxxx and Xxxx Xxxxxx will be
released from employment with the Rio Tinto Group; and
(b) the Purchaser will enter into new employment arrangements with each of
Xxx Xxxxxxxx and Xxxx Xxxxxx.
10.2 EMPLOYMENT OF XXXXXXX XXXXXXX
The Parties note that Xxxxxxx Xxxxxxx is currently employed by the
Purchaser. The Vendor will procure that the Rio Tinto Group will offer
employment to Xxxxxxx Xxxxxxx on the earlier of his cessation of employment
with the Purchaser and 1 January 2007, such offer to remain open for not
less than 60 days.
10.3 RESIGNATION OF XXXXXXXX XXXXXXX
On or before Completion, the Vendor will procure the resignation of
Xxxxxxxx Xxxxxxx as a director of Niugini Mining (Australia) Pty Limited.
10.4 MEETINGS WITH UNDERWRITERS
The Vendor agrees not to object to Xxxx Xxxx representing the Purchaser at
meetings with the Purchaser's insurance underwriters expected to take place
in mid-October 2005 on the understanding that Xxxx Xxxx will be acting at
the direction of the Purchaser and not at the direction of any member of
the Rio Tinto Group.
11. BOARD REPRESENTATION
With effect on and from Completion:
(a) provided that the Rio Tinto Group holds at least 14% of the issued
voting shares in the Purchaser and is the largest single shareholder
in the Purchaser, the Purchaser will use all reasonable endeavours to
ensure that, subject to shareholder approval, one nominee of the Rio
Tinto Group will be a member of the board of the Purchaser, it being
agreed that such reasonable endeavours include ensuring that the
appointment of a nominee of the Rio Tinto Group would not breach any
provisions of the Constitution of the Purchaser;
(b) unless the Purchaser otherwise agrees, the Rio Tinto Group will not
re-nominate any individual whose proposed appointment as a director
has previously failed to receive shareholder approval and, in such
circumstances, will not nominate another individual until the next
meeting of shareholders; and
(c) the current nominee of the Rio Tinto Group will continue to be Xxxx
X'Xxxxxx.
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12. WARRANTIES
12.1 WARRANTIES BY VENDOR
The Vendor represents and warrants solely to the Purchaser that, in respect
of itself, each of the following statements is true and correct in all
material respects as at the Completion Date.
(a) (STATUS) It is a corporation duly incorporated and validly existing
under the laws of the place of its incorporation specified in this
Agreement.
(b) (POWER) It has the power to enter into and perform its obligations
under this Agreement, to carry out the transactions contemplated by
this Agreement and to carry on its business as now conducted or
contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary corporate action
to authorise the entry into and performance of this Agreement and to
carry out the transactions contemplated by this Agreement.
(d) (DOCUMENTS BINDING) This Agreement is its valid and binding obligation
enforceable in accordance with its terms, subject to any necessary
stamping and registration.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it of this
Agreement and each transaction contemplated under this Agreement did
not, and will not, violate in any respect a provision of:
(i) a law or a judgment, ruling, order or decree of a Governmental
Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets.
(f) (TITLE) The Vendor is the beneficial owner of the Sale Shares, free of
Security Interests, and has full power and authority to transfer the
Sale Shares to the Purchaser in accordance with the terms of this
Agreement.
(g) (SALE SHARES) The Sale Shares are fully paid and constitute the entire
issued share capital of LMC.
12.2 WARRANTIES BY PURCHASER
The Purchaser represents and warrants to the Vendor that, in respect of
itself, each of the following statements is true and correct in all
material respects as at the Completion Date.
(a) (STATUS) It is a corporation duly incorporated and validly existing
under the laws of the place of its incorporation specified in this
Agreement.
(b) (POWER) It has the power to enter into and perform its obligations
under this Agreement, to carry out the transactions contemplated by
this Agreement and to carry on its business as now conducted or
contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary corporate action
to authorise the entry into and performance of this Agreement and to
carry out the transactions contemplated by this Agreement.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(d) (DOCUMENTS BINDING) This Agreement is its valid and binding obligation
enforceable in accordance with its terms, subject to any necessary
stamping and registration.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it of this
Agreement and each transaction contemplated under this Agreement did
not and will not violate in any respect a provision of:
(i) a law or a judgment, ruling, order or decree of a Governmental
Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets.
13. RIO TINTO GROUP POLICIES AND INITIATIVES
13.1 RIO TINTO GROUP POLICIES
The Purchaser acknowledges that it has previously adopted the Rio Tinto
Group policies, entitled "Business Integrity Guidance", "Human Rights
Guidance" and "The way we work", and that it will take steps to formulate
and implement, within a reasonable period after Completion, its own
corporate policies with respect to the matters covered by such Rio Tinto
Group policies.
13.2 RIO TINTO INITIATIVES
With effect from Completion, the Purchaser will cease to be involved in any
Rio Tinto Group initiatives, including the Improving Performance Together
(IPT) program.
14. CONSULTATION WITH RIO TINTO GROUP PERSONNEL, ACCESS TO RECORDS, AND ACCESS
TO DATA, REPORTS AND INFORMATION
14.1 CONSULTATION WITH RIO TINTO GROUP PERSONNEL
For a period of two years following Completion, the Vendor will procure
that personnel of the Rio Tinto Group will, on reasonable notice and within
reasonable limits, be available to answer questions relating to the history
of, and activities undertaken by, LMC and the Lihir Project, provided that
all such answers will be given at no charge to the Purchaser but otherwise
on the basis that they constitute the provision of services under the
Technical and Procurement Services Agreement.
14.2 ACCESS TO RECORDS
After Completion, the Purchaser will provide the Rio Tinto Group with
reasonable access, upon reasonable notice, to information and records of
LMC to enable the Rio Tinto Group to comply with any legal, accounting, tax
or regulatory requirements.
14.3 ACCESS TO DATA, REPORTS AND INFORMATION
On request by the Purchaser, the Vendor will, upon reasonable notice and
within reasonable limits, provide the Purchaser with data, reports and
other technical or operating information generated in the performance of
any services of a technical or operating nature provided by the Rio Tinto
Group
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
to the Purchaser prior to Completion, to the extent that such data, reports
and information are reasonably able to be retrieved by the Vendor or the
Rio Tinto Group. Such provision of information does not include any right
for the Purchaser to use or access any of the systems that were used for
the purposes of providing the abovementioned services. The Purchaser agrees
to reimburse the Vendor for all reasonable expenses of the Rio Tinto Group
in providing any such data, reports and/or information, and the Vendor
reserves the right to charge the Purchaser for the reasonable costs of the
time spent by Rio Tinto Group directors, officers, employees, agents and
representatives in meeting the Purchaser's request.
15. INSURANCE CLAIM
Nothing in this Agreement is to be taken to prejudice any rights of the
Purchaser in relation to an existing business interruption insurance claim
which the Purchaser is making against its insurers.
16. LIHIR PROJECT INFORMATION
The Vendor undertakes that, for a period of two years following Completion,
it will procure the Rio Tinto Group to:
(a) keep in strict confidence all confidential information in relation to
the Lihir Project held by it and provided by the Purchaser or LMC to
the Rio Tinto Group prior to Completion in connection with the
provision of management or technical services by the Rio Tinto Group;
and
(b) without the prior consent of the Purchaser, not disclose such
confidential information to any third party unless required to do so
by law or regulation.
Relevant confidential information does not include information or material:
(c) that is already in the public domain or comes into the public domain
otherwise than by wrongful disclosure by the Rio Tinto Group; or
(d) received by the Rio Tinto Group from a third party that is entitled to
so provide the information or material.
Where relevant confidential information is in the possession of the Rio
Tinto Group which the Rio Tinto Group wishes to dispose of, the Rio Tinto
Group will notify the Purchaser of the general nature of such information
and will give the Purchaser a reasonable opportunity to review and take
possession of that information. If the Purchaser fails to review and take
possession of the information within a reasonable period of time, the Rio
Tinto Group shall be entitled to destroy such information.
17. NON-SOLICITATION
Save as provided in Clause 10, each Party undertakes to the other Party
that, for a period of two years following Completion, neither it nor any of
its Related Corporations will, without the consent of the other Party,
engage, induce or attempt to induce (either as an employee, contractor or
otherwise) an employee of the other Party provided that this undertaking
shall not apply in relation to any employee of a Party who contacts the
other Party or any of its Related Corporations in
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
response to an employment advertisement placed by the other Party or any of
its Related Corporations in the print or electronic media.
18. CONFIDENTIALITY
18.1 SEC FILING
It is acknowledged that, in accordance with regulatory requirements, a copy
of this Agreement will be filed with the US Securities and Exchange
Commission.
18.2 UNDERTAKING
Without limiting Clause 16 and subject to Clauses 18.1 and 18.3, each Party
undertakes to the other Party that it, its Related Corporations, and its
servants and agents will keep entirely secret and confidential, all
information relating in any way to the negotiation of this Agreement or to
any correspondence, exchanges or negotiations in respect of the
administration of this Agreement.
18.3 PERMITTED DISCLOSURE
The undertakings of each Party under Clause 18.2 do not apply to the extent
that disclosure of the relevant information is:
(a) required by applicable law;
(b) required by any recognised stock exchange on which the Vendor's shares
or the shares of any member of the Rio Tinto Group are listed;
(c) made to such of its officers and professional advisers and those of
its Related Corporations as may be necessary for ordinary business
purposes, provided that the relevant Party must use its best
endeavours to ensure all matters disclosed are kept confidential; or
(d) made with the prior written consent of the other Party.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties with
respect to its subject matter. It sets out the only conduct relied on by
the Parties and supersedes all earlier conduct and prior agreements and
understandings between the Parties in connection with its subject matter.
20. AMENDMENT
This Agreement may be amended only by another agreement executed by both
Parties.
21. ASSIGNMENT
The rights and obligations of a Party under this Agreement cannot be
assigned, encumbered or otherwise dealt with except with the prior written
consent of the other Party, which consent may not be unreasonably withheld.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
22. NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by a Party operates as a waiver. A single or partial exercise of any
right, power or remedy does not preclude any other or further exercise of
that or any other right, power or remedy. A waiver is not valid or binding
on the Party granting that waiver unless made in writing.
23. COSTS AND STAMP DUTY
Each Party must bear its own costs arising out of the negotiation,
preparation and execution of this Agreement. All stamp duty (including
fines, penalties and interest) which may be payable on or in connection
with this Agreement and any instrument executed under or any transaction
evidenced by this Agreement must be borne by the Purchaser. The Vendor
agrees to reimburse to the Purchaser an amount up to US$7000 in respect of
an assessment of stamp duty payable on the transfer of the Sale Shares
which is attributable to the Deferred Tax Component. The Vendor will pay
such reimbursement to the Purchaser promptly upon receiving a copy of the
assessment.
24. MERGER
The rights and obligations of the Parties will not merge on the completion
of any transaction contemplated by this Agreement. They will survive the
execution and delivery of any assignment or other document entered into for
the purpose of implementing any such transaction.
25. FURTHER ASSURANCES
Each Party agrees to do all things and execute all deeds, instruments,
transfers or other documents as may be necessary or desirable to give full
effect to the provisions of this Agreement and the transactions
contemplated by it, whether before or after the Completion Date.
26. ABSOLUTE BAR
This Agreement may be pleaded and tendered by any Party as an absolute bar
and defence to any proceeding brought or made by another Party in breach of
the terms of this Agreement.
27. SEVERABILITY OF PROVISIONS
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions to this Agreement nor affect the validity or enforceability of
that provision in any other jurisdiction.
28. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation that at any time
directly or indirectly:
(a) lessens, varies or affects in favour of any Party any obligation under
this Agreement; or
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(b) delays, prevents or prejudicially affects the exercise by any Party of
any right, power or remedy conferred by this Agreement,
is excluded from this Agreement.
29. ENUREMENT
The provisions of this Agreement will enure for the benefit of and be
binding on the Parties and their respective successors and permitted
substitutes and assigns and (where applicable) legal personal
representatives.
30. GOVERNING LAW
This Agreement is governed by the laws of Victoria. Each Party submits to
the exclusive jurisdiction of courts exercising jurisdiction there, and
waives any right to claim that those courts are an inconvenient forum.
31. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
32. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given or made
under this Agreement:
(a) must be in writing and signed by a person duly authorised by the
sender;
(b) must be delivered to the intended recipient by prepaid post (if posted
to an address in another country, by registered airmail) or by hand or
fax to the address or fax number below or the address or fax number
last notified by the intended recipient to the sender:
(i) to the Purchaser: Lihir Gold Limited
XX Xxx 000
Xxxx Xxxxxxx
Attention: Company Secretary
Fax No: (x000) 000 0000,
with a copy to: (x000)000 0000
(ii) to the Vendor: Rio Tinto Western Holdings Limited
c/- Rio Tinto Limited
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 0000
Attention: General Counsel
Fax No: x00 0 0000 0000; and
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(c) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, two business days after the date
of posting (if posted to an address in the same country) or seven
business days after the date of posting (if posted to an address
in another country); and
(iii) in the case of fax, on receipt by the sender of a transmission
result report from the despatching machine showing the relevant
number of pages and the correct destination fax machine number or
name of recipient and indicating that the transmission has been
made without error,
but if the result is that a Notice would be taken to be given or made on a
day that is not a business day in the place to which the Notice is sent or
at a time later than 4pm (local time), it will be taken to have been duly
given or made at the commencement of business on the next business day in
that place.
Each attorney executing this Agreement states that he or she has no notice of
the revocation or suspension of his or her power of attorney.
EXECUTED as an agreement.
SIGNED for and on behalf of LIHIR
GOLD LIMITED by its duly
authorised representative in the
presence of:
/s/ Celine Bita /s/ Xxxx Xxxxxx
------------------------------------- ----------------------------------------
Witness Signature Authorised Representative Signature
CELINE BITA XXXX XXXXXX
Print Name Print Name
SIGNED for and on behalf of RIO TINTO
WESTERN HOLDINGS LIMITED by its
attorney in the presence of:
------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
------------------------------------- ----------------------------------------
Print Name Print Name
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
DATE 10th October 2005
PARTIES
1. RIO TINTO WESTERN HOLDINGS LIMITED (Company No. 00007132) a company
registered in the United Kingdom whose registered office is 0 Xx.
Xxxxx'x Xxxxxx, Xxxxxx, XX0X 0XX (the VENDOR)
2. LIHIR GOLD LIMITED a company incorporated in Papua New Guinea of
Xxxxx 0, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx Xxxxxx and Xxxxxxxx Street,
Port Moresby (the PURCHASER)
RECITALS
A LMC is the manager of the Lihir Project
B The Vendor is the beneficial owner of the Sale Shares, which comprise
100% of the issued shares in the capital of LMC.
C In furtherance of an agreement by the Purchaser and the Rio Tinto
Group to terminate the existing management arrangements in relation
to the Lihir Project, the Vendor has agreed to sell, and the
Purchaser has agreed to purchase, the Sale Shares on the terms set
out in this Agreement.
D By letter dated 14 September 2005 to the Purchaser's solicitors,
Xxxxx Xxxxxx Xxxxxxx, the Bank of Papua New Guinea granted authority
to execute this Agreement and to give the indemnities set out herein
under the Papua New Guinea Central Banking (Foreign Exchange and
Gold) Regulation.
E On 16 September 2005, the Purchaser released a statement to the
Australian Stock Exchange in relation to the subject matter of this
Agreement and related matters.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
COMPLETION means completion of the sale and purchase of the Sale Shares
under this Agreement, as provided in Clause 5.
COMPLETION COMPONENT has the meaning given in Clause 3.3(a).
COMPLETION DATE means 4 October 2005 or such other date as may be agreed
between the Parties.
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Share Sale and Purchase Agreement Allens Xxxxxx Xxxxxxxx
(c) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, two business days after the date
of posting (if posted to an address in the same country) or seven
business days after the date of posting (if posted to an address
in another country); and
(iii) in the case of fax, on receipt by the sender of a transmission
result report from the despatching machine showing the relevant
number of pages and the correct destination fax machine number or
name of recipient and indicating that the transmission has been
made without error,
but if the result is that a Notice would be taken to be given or made on a
day that is not a business day in the place to which the Notice is sent or
at a time later than 4pm (local time), it will be taken to have been duly
given or made at the commencement of business on the next business day in
that place.
Each attorney executing this Agreement states that he or she has no notice of
the revocation or suspension of his or her power of attorney.
EXECUTED as an agreement.
SIGNED for and on behalf of LIHIR
GOLD LIMITED by its duly authorised
representative in the presence of:
------------------------------------- ----------------------------------------
Witness Signature Authorised Representative Signature
------------------------------------- ----------------------------------------
Print Name Print Name
SIGNED for and on behalf of RIO TINTO
WESTERN HOLDINGS LIMITED by its
attorney in the presence of:
/s/ Xxxxxxx De Lawcey Xxxxxxx /s/ Xxxxxxx Xxxxxx Xxxxx Xxxxxx
------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
XXXXXXX DE LAWCEY XXXXXXX XXXXXXX XXXXXX XXXXX XXXXXX
Print Name Print Name
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