Announcement PDF EXULTANT MINING LIMITED ACN 684 147 484 (Company) EMPLOYEE INCENTIVE SECURITIES PLAN i T A B L E O F C O N T E N T S 1. DEFINITIONS AND INTERPRETATION .............................................................................................. 1 1.1 Definitions....................................................................................................................... 1 1.2 Interpretation................................................................................................................. 5 1.3 Inconsistencies .............................................................................................................. 6 1.4 Income Tax Assessment Act ........................................................................................ 6 1.5 Not construed against the Company ........................................................................ 6 1.6 Applicable Law............................................................................................................. 6 1.7 Rounding........................................................................................................................ 6 2. INTRODUCTION .............................................................................................................................. 6 2.1 Purpose .......................................................................................................................... 6 2.2 Commencement .......................................................................................................... 6 2.3 Rules are binding........................................................................................................... 6 3. ELIGIBILITY, INVITATION AND APPLICATION ................................................................................ 6 3.1 Eligibility .......................................................................................................................... 6 3.2 Invitation......................................................................................................................... 6 3.3 Form of Application ...................................................................................................... 7 3.4 Eligible Participant agrees to be bound .................................................................... 7 3.5 Who may apply............................................................................................................. 7 3.6 Acceptance of Application ........................................................................................ 7 3.7 When an Application will not be accepted.............................................................. 7 3.8 Right to nominate ......................................................................................................... 8 3.9 Multiple Invitations ........................................................................................................ 8 4. GRANT OF SECURITIES.................................................................................................................... 8 4.1 Company to grant Securities....................................................................................... 8 4.2 Certificate of Security................................................................................................... 8 5. TERMS OF CONVERTIBLE SECURITIES............................................................................................. 9 5.1 Participant's rights ......................................................................................................... 9 5.2 Restriction of dealing.................................................................................................... 9 5.3 Prohibition on hedging................................................................................................. 9 5.4 Register of Convertible Securities................................................................................ 9 5.5 Listing .............................................................................................................................. 9 6. VESTING OF CONVERTIBLE SECURITIES ......................................................................................... 9 6.1 Vesting............................................................................................................................ 9 6.2 Waiver of Vesting Condition........................................................................................ 9 7. EXERCISE OF CONVERTIBLE SECURITIES........................................................................................ 9 7.1 Exercise of Convertible Securities................................................................................ 9 7.2 Cashless exercise of Options ..................................................................................... 10 7.3 Cash Payment Facility................................................................................................ 10 8. DELIVERY OF SHARES ON EXERCISE OF CONVERTIBLE SECURITIES........................................... 10 9. FORFEITURE OF CONVERTIBLE SECURITIES .................................................................................. 11 9.1 Leaver........................................................................................................................... 11 9.2 Fraudulent or dishonest actions ................................................................................ 11 9.3 Failure to satisfy Vesting Conditions.......................................................................... 11 9.4 Insolvency .................................................................................................................... 11 9.5 Other forfeiture events ............................................................................................... 11 9.6 Discretion to determine that the Convertible Securities are not forfeited ........... 11 9.7 Voluntary forfeiture ..................................................................................................... 12 9.8 Application of Part 2D.2 Division 2 of the Corporations Act .................................. 12 10. EFFECT OF FORFEITURE OF CONVERTIBLE SECURITIES ................................................................ 12 11. CHANGE OF CONTROL................................................................................................................ 12 12. RIGHTS ATTACHING TO PLAN SHARES ........................................................................................ 12 ii 12.1 Plan Shares to rank equally........................................................................................ 12 12.2 Listing ............................................................................................................................ 13 12.3 Dividends ..................................................................................................................... 13 12.4 Dividend reinvestment plan....................................................................................... 13 12.5 Voting rights................................................................................................................. 13 13. DISPOSAL RESTRICTIONS ON PLAN SHARES ............................................................................... 13 13.1 Disposal restriction....................................................................................................... 13 13.2 Participant's undertaking ........................................................................................... 13 13.3 Expiry of restriction ...................................................................................................... 13 13.4 Share entitlements ...................................................................................................... 13 14. IRREVOCABLE POWER OF ATTORNEY ......................................................................................... 14 15. ADJUSTMENT OF CONVERTIBLE SECURITIES................................................................................ 14 15.1 Reorganisation ............................................................................................................ 14 15.2 Bonus Issue of Shares .................................................................................................. 14 15.3 Rights Issue ................................................................................................................... 14 15.4 No other participation................................................................................................ 14 15.5 Rounding...................................................................................................................... 14 15.6 Application of adjustment ......................................................................................... 14 16. ADMINISTRATION OF THE PLAN................................................................................................... 15 16.1 Board administration .................................................................................................. 15 16.2 Board powers and discretions ................................................................................... 15 16.3 Delegation of Board powers and discretions .......................................................... 15 16.4 Documents .................................................................................................................. 15 16.5 Decisions final .............................................................................................................. 15 17. EMPLOYEE SHARE TRUST............................................................................................................... 15 18. WITHHOLDING .............................................................................................................................. 15 19. RESTRICTIONS ON AND AMENDMENTS TO THE PLAN ................................................................ 16 19.1 Compliance with Applicable Laws........................................................................... 16 19.2 Amendment of Plan ................................................................................................... 16 20. DURATION..................................................................................................................................... 17 20.1 Termination .................................................................................................................. 17 20.2 Suspension ................................................................................................................... 17 20.3 Effect of termination / suspension............................................................................. 17 20.4 Cancellation of Securities .......................................................................................... 17 21. MISCELLANEOUS .......................................................................................................................... 17 21.1 Rights of Participants .................................................................................................. 17 21.2 Non-exclusivity............................................................................................................. 18 21.3 Notice........................................................................................................................... 18 21.4 Further assurances ...................................................................................................... 18 21.5 Costs and charges...................................................................................................... 18 21.6 No representation or warranty .................................................................................. 18 21.7 Data protection .......................................................................................................... 19 21.8 Governing law............................................................................................................. 19 21.9 Waiver of rights............................................................................................................ 19 1 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In these Rules, unless the context otherwise requires, the following terms and expressions will have the following meanings: Ancillary Documentation means all documentation which the Board specifies in an Invitation that an Eligible Participant must enter into and/or provide in connection with an Application for Securities. Applicable Law means any one or more or all, as the context requires of: (a) the Corporations Act (including the ESS Regime); (b) the Listing Rules; (c) the Constitution; (d) the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth); (e) any relevant practice note, policy statement, regulatory guide, class order, declaration, guideline, policy, procedure, ruling, judicial interpretation or other guidance note made to clarify, expand or amend (a), (b), or (d) above; (f) any other legal requirement (including, without limitation, the rules of the general law, including common law and equity, and any judgment, order, decree, declaration or ruling of a court of competent jurisdiction or government agency binding on a person or the assets of that person) that applies to the Plan; and (g) in respect of acquisition or disposals of any Shares, any formal policy relating to dealings in Shares adopted by the Board from time to time, including the Share Trading Policy. Application means, in respect of a Security, an application for that Security made by an Eligible Participant in response to an Invitation. Application Form means an application form attached to, or enclosed with, an Invitation. ASIC means the Australian Securities and Investments Commission. Associate has the same meaning as in section 12 of the Corporations Act. Associated Body Corporate means an associated entity of the Company, where the associated entity is a body corporate (as that term is used in the ESS Regime). ASX means the ASX Limited (ABN 98 008 624 691) trading as the Australian Securities Exchange or the securities exchange operated by that entity, as appropriate. ASX Holding Lock has the same meaning as 'Holding Lock' in Chapter 19 of the Listing Rules. Board means the board of directors of the Company, a committee appointed by the board of directors of the Company as constituted from time to time, or, in respect of a particular matter, any person who is provided with delegated authority by the board of directors of the Company in respect of that particular matter from time to time. Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Perth, Australia. Certificate means a certificate evidencing the grant of a Security. Change of Control Event means: (a) a change in Control of the Company; (b) where members of the Company approve any compromise or arrangement for the purpose of, or in connection with, a scheme for the reconstruction of the Company or its amalgamation with any other body corporate or bodies corporate (other than a scheme that does not involve a change in the ultimate beneficial ownership of the Company), which will, upon becoming effective, 2 result in any person (either alone or together with its Associates) owning more than fifty per cent (50%) of Issued Capital; (c) where a person becomes the legal or the beneficial owner of, or has a Relevant Interest in, more than fifty per cent (50%) of Issued Capital; (d) where a person becomes entitled to acquire, hold or has an equitable interest in more than fifty per cent (50%) of Issued Capital; and (e) where a Takeover Bid is made to acquire more than fifty per cent (50%) of Issued Capital (or such lesser number of Shares that when combined with the Shares that the bidder (together with its Associates) already owns will amount to more than 50% of Issued Capital) and the Takeover Bid becomes unconditional and the bidder (together with its Associates) has a Relevant Interest in more than 50% of Issued Capital, but, for the avoidance of doubt, does not include any internal reorganisation of the structure, business and/or assets of the Group. Cleansing Notice means a written notice by the Company to ASX pursuant to section 708A(5) of the Corporations Act in a form that is sufficient to permit secondary trading on the ASX of the Plan Shares to which it relates. Company means Exultant Mining Limited (ACN 684 147 484). Constitution means the constitution of the Company. Control has the same meaning as in section 50AA of the Corporations Act. Convertible Security means a Security exercisable for Plan Share(s) in accordance with these Rules, including an Option or Performance Right. Corporations Act means the Corporations Act 2001 (Cth). Corporations Act Exemption means the exemption from various disclosure requirements under the Corporations Act for offers of securities made by a company under an employee share scheme as set out in the ESS Regime. Derivatives include: (a) derivatives within the meaning given in section 761D of the Corporations Act (such as options, forward contracts, swaps, futures, warrants, caps and collars); and (b) any other transaction in financial products which operate to limit (in any way) the economic risk associated with holding the relevant securities. Eligible Participant means a person that is: (a) a ‘primary participant’ (as that term is defined in the ESS Regime) in relation to the Company or an Associated Body Corporate; and (b) has been determined by the Board to be eligible to participate in the Plan from time to time. Engagement Arrangement means in respect of: (a) an employee of a member of the Group, the terms under which the relevant member of the Group has employed that person; (b) a director of a member of the Group that is not also an employee, the terms under which the relevant member of the Group has appointed that director to their office; or (c) a contractor or consultant to a member of the Group, the terms under which the relevant member of the Group has engaged that contractor or consultant. ESS Regime means Division 1A of Part 7.12 of the Corporations Act which comes into effect on 1 October 2022. 3 Exercise Price means, in respect of a Convertible Security, the price to be paid by the Participant (if any) when exercising that Security as specified in the relevant Invitation. For the avoidance of doubt, the Exercise Price for a Security may be nil. Expiry Date means, in relation to a Convertible Security, the 'expiry date' which is specified in the Invitation or Vesting Notice (if any). Grant Date means, in relation to a Security, the date on which that Security is granted to a Participant, as set out on the relevant Certificate. Group means the Company and each of its Associated Bodies Corporate from time to time. 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 has had a controller appointed or is in liquidation, in provisional liquidation, under administration, wound up or has had a receiver 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 Company); (d) an application or order has been made (and in the case of the 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 likely to result in any of (a), (b) or (c) above); (e) it is taken (under s.459F(1) of the Corporations Act) to have failed to comply with a statutory demand); (f) it is subject to an event described in section 459C(2)(b) or section 585 of the Corporations Act; (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. Invitation means an invitation to an Eligible Participant to apply for the grant of one or more Securities made in accordance with clause 3.2 of these Rules. Issued Capital means issued Shares from time to time. Leaver means a Participant who ceases to be an Eligible Participant. Listing Rules means the listing rules, market rules and operating rules of a financial market in respect of which the Company's shares are quoted or are the subject of an application for quotation, including but not limited to, the official listing rules of the ASX. Market Value means, at any given date, the volume weighted average price per Share traded on the ASX over the five (5) trading days immediately preceding that given date, unless otherwise specified in an Invitation. Nominated Party means, in respect of an Eligible Participant: (a) a spouse, parent, child or sibling of the Eligible Participant; (b) another body corporate controlled by the Eligible Participant, or a person mentioned in subclause (a); (c) a body corporate that is the trustee of a self-managed superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993) where the Eligible Participant is a director of the body corporate; or 4 (d) a person prescribed in relation to the Eligible Participant by the regulations for the purposes of section 1100L(1)(b)(iv) of the Corporations Act. Notice of Exercise means a notice given by or on behalf of the Participant (in the form determined by the Board from time to time) to exercise a Convertible Security in accordance with clause 7.1. Option means an option granted under these Rules to acquire one or more Shares by transfer or allotment, as set out in the relevant Invitation. Participant means an Eligible Participant who has been granted any Security under this Plan. Performance Right means a right granted under these Rules to acquire one or more Shares by transfer or allotment as set out in the relevant Invitation. Plan means this Employee Incentive Plan. Plan Shares means all Shares issued or transferred to a Participant under these Rules, including upon the valid exercise of a Security. Relevant Interest has the same meaning as in section 9 of the Corporations Act. Rules means the rules of the Plan which are set out in this document. Security means a security in the capital of the Company granted under these Rules, including a Plan Share, Option, Performance Right or other Convertible Security. Security Interest means a mortgage, charge, pledge, lien, encumbrance or other third party interest of any nature. Share means a fully paid ordinary share in the capital of the Company. Shareholder means a holder of a Share. Share Trading Policy means any share trading policy of the Company, as amended from time to time. Special Circumstances means: (a) a Participant ceasing to be an Eligible Participant due to death or Total or Permanent Disability of a Participant; or (b) any other exceptional or extraordinary circumstances as determined by the Board to constitute “Special Circumstances”. Takeover Bid has the meaning given to that term in the Corporations Act. Tax means any tax, levy, charge, franchise, impost, duty, fee, rate, deduction, compulsory loan or withholding, which is assessed (or deemed assessed), levied, imposed or collected by any government or governmental, semi-governmental or judicial entity or authority and includes, for the avoidance of doubt, capital gains tax, fringe benefits tax, income tax, value added tax, goods and services tax, sales or use tax, training guarantee levy, profits tax, undistributed profits tax, payroll or employment tax, group tax, PAYG or PAYE withholding tax, land tax, import or customs duty, excise, municipal rates, and any interest, fine, penalty, charge, fee or any other amount assessed (or deemed assessed) on or in respect of any of the above, and Taxes has a corresponding meaning. Total and Permanent Disability means that the Participant has, in the opinion of the Board, after considering such medical and other evidence as it sees fit, become incapacitated to such an extent as to render the Participant unlikely ever to engage in any occupation with the Company or its Associated Bodies Corporate for which he or she is reasonably qualified by education, training or experience. Trustee means the trustee, from time to time, of any employee share trust used by the Company to deliver any Plan Shares arising from the exercise of a Convertible Security under these Rules. Vesting Condition means, in relation to a Convertible Security, any conditions to vesting of that Convertible Security that are set out in the Invitation for that Convertible Security. 5 Vesting Notice means, in relation to a Convertible Security, the notice given by or on behalf of the Company to a Participant informing him or her that the Convertible Security may be exercised in accordance with the terms of these Rules. 1.2 Interpretation In these Rules: (a) headings are for convenience only and do not affect the interpretation of any part of these Rules; (b) specifying anything after the words “include” or “for example” or similar expressions does not limit what else is included; and, unless the context otherwise requires: (c) an obligation or liability assumed by, or a right conferred on, two or more parties binds or benefits all of them jointly and each of them severally; (d) the expression person includes an individual, the estate of an individual, a corporation, an authority, an association or joint venture (whether incorporated or unincorporated), a partnership and a trust; (e) a reference to any document (including these Rules) is to that document as varied, novated, ratified or replaced from time to time; (f) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it; (g) words importing the singular include the plural (and vice versa) and words indicating a gender include every other gender; (h) references to clauses, schedules or annexures are references to clauses, schedules, exhibits and annexures to or of these Rules and a reference to these Rules includes any schedule or annexure to these Rules; (i) references to a party or parties are references to the Company (on the one hand) and a Participant (or their Nominated Party) (on the other hand); (j) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; (k) a reference to time is to Western Standard Time as observed in Perth, Western Australia; (l) if a period of time is specified and dates from a given day or the day of an event, it is to be calculated exclusive of that day; (m) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (n) if an act prescribed under these Rules to be done by a Party on or by a given day is done after 5.00pm on that day, it is taken to be done on the next day; (o) where an action is required to be undertaken on a day that is not a Business Day it shall be undertaken on the next Business Day; (p) a reference to a payment is to a payment by bank cheque or such other form of cleared funds the recipient otherwise allows in the relevant lawful currency specified; 6 (q) a reference to $ or dollar is to the lawful currency of the Commonwealth of Australia; and (r) any capitalised terms in these Rules that are not defined in clause 1.1 have the meaning given to them in the Corporations Act. 1.3 Inconsistencies If there is any inconsistency between these Rules and an Invitation, the Invitation will prevail. 1.4 Income Tax Assessment Act This Plan is a plan to which Subdivision 83A-C of the Income Tax Assessment Act 1997 (Cth) applies (subject to the conditions in that Act) except to the extent an Invitation provides otherwise. 1.5 Not construed against the Company No provision or expression in these Rules or any Invitation, Application Form or other Ancillary Document is to be construed against the Company on the basis that the Company (or its advisers) was responsible for the drafting of these Rules or that document. 1.6 Applicable Law These Rules, the offering and granting of any Security and the rights attaching to or interests in any Security will at all times be subject to Applicable Law. 1.7 Rounding Where any calculation or adjustment to be made pursuant to these Rules produces a fraction of a cent or a fraction of a Security, the fraction will be eliminated by rounding to the next lowest whole number. 2. INTRODUCTION 2.1 Purpose The purpose of the Plan is to: (a) assist in the reward, retention and motivation of Eligible Participants; (b) link the reward of Eligible Participants to Shareholder value creation; and (c) align the interests of Eligible Participants with shareholders of the Group by providing an opportunity to Eligible Participants to receive an equity interest in the Company in the form of Securities. 2.2 Commencement The Plan will commence on a date determined by the Board. 2.3 Rules are binding The Company and each Participant are bound by these Rules. 3. ELIGIBILITY, INVITATION AND APPLICATION 3.1 Eligibility The Board may from time to time determine that an Eligible Participant may participate in the Plan. 3.2 Invitation (a) Following determination that an Eligible Participant may participate in the Plan,