14 Jan

Employee Securities Incentive Plan

Disclaimer Fargo Enterprises Limited (to be renamed Odessa Minerals Limite d ) Employee Securities Incentive Plan QV.1 Building 250 St Georges Terrace Perth WA 6000 Australia T +61 8 9488 3700 F +61 8 9488 37 01 www.allens.com.au © Allens Australia 2021 Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page ( i ) Content s 1 Definitions and interpretation 1 1.1 Definitions 1 1.2 Interpret ation 4 1.3 Inconsistencies 5 1.4 Inc ome Tax Assessment Act 5 1.5 Construed against a p arty 5 1.6 Applicable Law 5 1.7 Rounding 6 1.8 Constitution 6 2 Introduction 6 2.1 Purpose 6 2.2 Commencement 6 2.3 Rules are binding 6 3 Eligibility, Invitatio n and Application 6 3.1 Eligibility 6 3.2 Invitation 6 3.3 Form of App lication 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 7 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 Secu rities 8 5.1 Partici pant's rights 8 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 Convertible Securities 10 8 Deliv ery of Shares on exercise of Convertible Securities 10 9 Forfeiture of Convertible Securities 10 9.1 Leaver 1 0 9.2 Fraudulent or dishonest actions 10 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 Employee Securities Incentive Plan 10.11.2021 page ii 9.7 Voluntary forfeiture 11 9.8 Application of Part 2D.2 Division 2 of the Corporations Act 11 10 Effect of Forfeiture of Convertible Securities 12 11 Change of Control 12 12 Rights attaching to Plan Shares 12 12.1 Plan Shares to rank equally 12 12.2 Listing 12 12.3 Div idends 12 12.4 Dividend reinvestment plan 12 12.5 Voting rights 12 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 13 15 Adjustment of Convertible Securities 13 15.1 Reorganisation 13 15.2 Bonus Issue 13 15.3 Rights Issue 14 15.4 No other participation 14 15.5 Rou nding 14 15.6 Application of adjustment 14 16 Administration of the Plan 14 16.1 Board administration 14 16.2 Board powers and discretions 14 16.3 Delegation of Board powers and discretions 15 16.4 Documents 15 16.5 Decisions final 15 17 Trust 15 18 Restrictions on and amendments to the Plan 15 18.1 Compliance with Applicable Laws 15 18.2 A mendment of Plan 16 19 Duration 16 19.1 Termination 16 19 .2 Suspension 17 19.3 Effect of termination / suspension 17 19.4 Cancellation of Convertible Securities 17 20 Miscellaneous 17 20.1 Rights of Participants 17 20.2 Non - exclusivity 17 20.3 Notice 17 20.4 Further assurances 18 20.5 Costs and charges 18 20.6 No representation or warranty 18 20.7 Data protection 18 Employee Securities Incentive Plan 10.11.2021 page iii 20.8 Governing law 19 20.9 Waiver of rights 19 Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 1 Fargo Enterprises Limited (to be renamed Odessa Minerals Limite d ) – E mployee Securities Incentive Plan 1 Def initions and interpretation 1.1 Definitions In these Ru les, unless the context otherwise requires, the following terms and expressions wil l have the follow ing meanings: Ancillary Documentation means all documentation which the Board specifies in an Invitation that an Eligible Participant must enter int o and/or provide in connection with an Application for Securities. Applicable Law means any one or more or a ll, as the context requires of: (a) the Corp orations Act; (b) the Listing Rules; (c) the Constitution; (d) the Income Tax Assessment Act 1936 (Cth) and the Income T ax Asses sment Act 1997 (Cth); (e) any relevant practice note, policy statement, regulatory guid e, class order, d eclaration, guideline, policy, procedure, ruling, judicial interpretation or other guidance note made to clarify, expand or amend (a) , (b) , or (d) a bove; (f) a ny other legal r e quirement (including, without limitation, the rules of the general law, including common law and equity, and any judgment, order, decree, declaratio n or rul ing of a court of competent jurisdiction or government agency binding on a p erson o r the assets of t hat 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 ado pted 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 a nd Inve stments Commissio n. ASIC Class Order 14/1000 means ASIC Class Order (CO 14/1000) which provides relief for employee incentive scheme offers from disclosure, licensin g, adver tising, hawking and on - sale in relation to listed bodies. Associate has the sa me me aning as in secti on 12 of the Corporations Act. Associated Body Corporate has the meaning given to that term in ASIC Class Order 14/1000. ASX means the ASX Limited ( ABN 98 0 08 624 691) trading as the Australian Securities Exchange or the securities e xchang e operated by tha t 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 direc tors of the Company, a committee appointed by the board of directors of the Company a s cons tituted 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 res pect of that particular matter from time to time. Business Day means a day (other th a n a Sa turday, Sunday or public holiday) on which banks Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 2 are open for general banking business in Perth , Australia. Certificate means a certificate evidencing the grant of a Securit y. Change of Control Event means: (a) a cha nge in Control of the Company; (b) where members of the Compa ny approve any compromise or arrangement for the purpose of, or in connection with, a scheme for the reconstruction of the Company or its amalgamation w ith 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, result in any person (either alone or together with its Associat es) owni ng more than fifty per cent (50%) of Issued Capital; (c) where a person becomes the leg al or the ben eficial 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 h as an eq uitable interest in more than fifty per cent (50%) of Issued Capital; and (e) wh ere a T akeover Bid i s 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 Issue d Ca pital) and the Takeo ver Bid becomes unconditional and the bidder (together with its Associates) has a Relevant Interest in more than 50% of Issued Capital, but, for the avo idance o f doubt, does not include any internal reorganisation of the structure, busi ness an d/or assets o f the Group. Company means Fargo Enterprises Limited (ACN 000 031 292 ) (to be renamed Odessa Minerals Limite d ) . Constitution means the constitution of the Compa ny . Control has the same meaning as in section 50AA of the Corporations Act. Convertible Security means a Security exerc isable for Plan Share(s) i n accordance with these Rules, including an Option or Performance Right. Corporations Act means the Corporatio ns Act 2001 (Cth). Derivatives inclu de: (a) derivatives with in the meaning given in section 761D of the Corpor ations Act (su ch as o ptions, forward con tracts, swaps, futures, warrants, caps and collars); and (b) any other tran saction in financial products which ope rate to limit (in any way) the econo mic risk associated with holding the relevant securities. Eligible Par ticipant means a pers on that: (a) is an 'eli gible participant' (as that term is defined in ASIC Class Order 14/1000) in relation to the Company or an Asso ciated Body Corporate; and (b) h as been determined by the Board to be eligible to participate in the Plan from time to time. Engage ment Arrangement me ans in respect of: (a) an employee of a member of the Group, the terms under which the relevant member of the Grou p has employed that person; Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 3 (b) a direct or of a member of the Group that is not also an employee, the terms u nder which the relevan t member of the Gro up has appointed that director to their office; or (c) a contractor or consultant to a member of the Group, the te rms under which the relevant member of the Group has engaged that contractor or consultant. Exercise Pric e means, in res pect of a Convertible Secu rity, the price to be paid by the Participant (if any) when exercising that Security as specified in the relev ant Invitation. For the avoidance of doubt, the Exercise Price for a Security may be nil. Expiry Date mea ns, in relation to a C onvertible Security , the 'expiry date' which is specified in the Invitation or Vesting Notice (if any). Grant Date means, in rela tion to a Security, the date on whic h that Security is granted to a Participant, as set out on the releva nt Certificate. Group means the Company a nd each of its Associated Bodies Corporate from time to time. Insolvent A person is Insolvent if: (a) it is (o r st ates that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act) ; (b) i t has had a control ler 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 sub ject to any arrangement, assignment, moratorium or composition, prote cted from credi tors un der any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms appro ved by the Company); (d) an application or order has been made (and in the case of the application, it is not stayed, withdr awn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with th at person, which is likely to result in any of (a) , (b) or (c) above); (e) it is taken (under s.459F(1) of th e Corporations Act) to have failed to comply with a statutory deman d); (f) it is subject to an event descri bed 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) somethi ng having a substantially simila r effect to (a) to (g) happens i n connection with that person under the law of any jurisdiction. Invitation means an invita tion to an Eligible Participant to apply for the grant of one or more Securities made in accordance with clause 3.2 o f th ese Rules. Issued Capital means issued Shares from time to time. Leaver means a Participant who ceases to be a n Eligible Participant. Listing Rules means the listing rules, market rules and operating rules of a financial mar ket in respect of which the Comp any's shares are quoted or are the subject of an application for quotation, including but n ot limited to, the official listing rules of the ASX. Market Value means, at any given date, the volume weighted average price pe r Sh are traded on the ASX ov er the f ive (5) trading days immediately preceding that given date, unless otherwise specified in a n Invitation. Nomin ated Party means, in respect of an Eligible Participant: (a) that person 's spouse; Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 4 (b) t hat person's biological or leg ally adopted child of at lea st 18 ye ars of age; (c) a trustee or trustees of a trust set up wholly for the benefit of that Eligible Participant and/or a person mentioned in sub - clauses (a) or (b) above (b ut not including any trust establish ed by the Company under clause 17 ); or (d) a compan y in w hich all of t he issued shares are beneficially held by, and all of the voting rights are beneficially held by: (i) the Eligible Participant; and/or (ii) a person or per sons mentioned in sub - c lauses (a) , (b) or (c) above. Notice of Exercise means a notice give n by or on behalf of the Participant (in a f orm to be determined by the Board fr om 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 releva nt Invitation. Participant means an Eligible Participant who has been granted any Security under this Plan. Pe rformance Right means a right granted under these Rules to acquire one or more shares by transfer or allotment as set out in the relevant Invitati on. Plan means the Fargo Enterprises Limited (to be renamed Odessa Minerals Limite d ) Employee Incentive Plan. Plan Shares means all S hares issued or tr ansferred to a Participant under these Rules, including upon the vali d exercise of a Security. Rules means the r ules of the Plan which are set out i n this document. Security means a security in the capital of the Company granted under the se Rules, includin g a Plan Share, Option, Performance Right or other Convertible Securi ty. Security Interest means a mortgage, cha rge, pledge, lien, encumbrance or ot her third party interest of any nature. Share means a fully paid ordinary share in the cap ital of the Compan y. Shareh older means a holder of a Share. Share Trading Policy means any share trading policy of the Company, a s amended from time to time. Takeover Bid has the meaning given to that term in the Corporations Act. Trustee means the trustee , from time to tim e, of any employee share trust used by the Company to deliver any Pla n Shares arising from the exercise of a Co nvertible Security under these Rules. Vesting Condition means, in relation to a Convertible Security, any conditions to vesting of that Convertib le Securi ty that are set out in the Invitation for that Convertible S ecurity. Vesting Notice means, in relation to a Convertible Security, the notic e given by or on behalf of the Company to a Participant informing him or her that the Conv ertible Security m ay be exe rcised in accordance with the terms of these Rules. 1.2 Interpre tation In these Rules, unless othe rwise stated or the contrary intention appear s: (a) the singular includes the plural and vice versa; (b) a gender includes all genders; Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 5 (c) a refer ence to a document , agreeme nt, plan or rules includes that document, agreement, plan or rules as novated, amended, varied , supplemented or replaced from time to time; (d) headings are for convenience only and do not affect the interpretation of these Rules; (e) a reference to any t hing (inc luding any amount) includes any part of that thing and a ref erence to a group of things or per sons includes each thing or person in that gr oup; (f) a reference to any legislation includes any modification or replacement of it and all regulations and s tatutory instruments issued under it and a reference to any provision of any legislation includes any m odification or substitution of it; (g) a referenc e to these Rules includes all recitals, annexures, addendums and schedules to these Rules; (h) a reference to a person in cludes a reference to the person's executors, legal personal representatives, administrators a nd successors or a body corporate including a ny person taking by way of novation and, in the case of a trustee, includes any substitute d or additional tr ustee; (i) th e expression 'person' includes an individual, the estate of an individual, the legal personal representative of an individual, a corporatio n, an authority, an association or a joint venture (whether incorporated or unincorporated ), a partnership a nd a trus t; (j) in these Rules any reference to 'include' means to includ e without limitation; (k) a reference to 'including' (or any similar term) is not t o be construed as implying any limitation; (l) a monetary amount is a reference to Australian dollars; (m) where any word is given a defined meaning, any other part of speech or other g rammatical form in respect of such word or phrase has a corresponding meaning; and (n) 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 I nconsistencies Notwithstanding anything to the contrary in any Engagement Arra n gement with a Participant, but subject at all times to these Rules, if there is any incons istency between th ese Rules and an Engagement Arrangement, these Rules prevail. 1.4 Income Tax Assessment Act This Plan is a plan to which Subdivision 83A - C of the Incom e Tax Assessment Act 1997 (Cth) applies (subject to the conditions in that Act). 1.5 Construed against a party No provisio n or expression in these Rules is to be construed against a party on the basis that the party (or its advisers) was responsible for the dr a fting of these Rules. 1.6 Applicable Law These Rules, the offering and granting of any Securit y and the rights a ttaching to or interests in any Security will at all times be subject to Applicable Law. Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 6 1.7 Rounding Where any calculation or adjustment to be made pu r suant to these Rules produces a fraction of a cent or a fraction of a Security, the fracti on will be elimina ted by ro unding to the nearest whole number. 1.8 Constitution The entitle ments of Eligible Participants under these Rules are subject to the Constitutio n. In the event of any inconsistency between these Rules and the Constitution, the terms o f the Constitution will pre vail. 2 Introduction 2.1 Purpose The purpose of the Plan is to: (a) as sist in the reward, retention and motivation of Eligible Partici pants; (b) link the reward of Eligible Participants to Shareholder value creation; and (c) align the interests of Eligible Particip ants with shareholders of the Group by providing an opportunity to El igible 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 Co mpany and each Participant are bound by these Rules. 3 Eligibility, Inv itation and Application 3.1 Eligibility The Board may from time to time determine t hat an Eligible Participant may participate in the Plan. 3.2 Invitation (a) Following determinatio n that an Eligible Particip ant may participate in the Plan, the Board may at any time a nd from time to time make an Invitation to that Eligible Par ticipant. (b) An Invita tion to an Eligible Participant to apply for Securities may be made on such terms and cond itions as the Boar d decides from time to time, including as to: (i) the number of Securitie s for which that Eligible Participant may apply; (ii) the Grant D ate; (iii) the amount pay able (if any) for the grant of each Security or how such amount is calculated; (iv) the Exercis e Price (if any); (v) the Vesti ng Conditions (if any); (vi) disposal restrictions attaching to t he Plan Shares (if any); (vii) whether cashless exercise of the Se curities is permitt ed under clause 7.2 ; Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 7 (viii) the method by which Share s will be delivere d to the Participant under clause 8 after the valid exercise of the Convertible Security (if relevant); and (ix) any other supplementary terms and conditions. 3.3 Form of Application An Invitation to an Eligible Participa nt must b e accompanied by an Application Form and the Ancillary Docum entation (if any). 3.4 Eligible Participant agrees to be bound Each Eligible Partic ipant is, by submitting a completed Application Form, deem ed to have agreed to be bound by : (a) the terms of the Invitati on and the Application Form; (b) the Ancillary Documentation (if any); (c) these Rules; and (d) the Constitution. 3.5 Who may apply On receipt of an Invita tion, an Eligible Participant may apply for the Securities the subject of the Invitation b y sending the comp leted App lication Form to the Company (or its designated officer as s et out in the Application Form) by the time and date specified in the Invitatio n, unless otherwise determined by the Board. 3.6 Acceptance of Application (a) The Board may accep t an Application f rom an El igible Participant in whole or in part. (b) The Company may not grant a Security to an Eligible Participant unless it has received a duly signe d and completed Application Form together with all applica ble Ancillary Documentation from that Eligible Par ticipant. The Application Form and, where applicable, the Ancillary D ocumentation must be in the form included with the Invitation, and may not be m ade on the basis that it is subject to any terms and condi tions other than those specified in the Invitation . 3.7 When an Application will not be accepted Unless otherwise determine d by the Board, an Application will not be accepted if at the time the Company received the duly signed and completed Application Form together with all Ancillary Docume ntation: (a) the appli cant is n ot an Eligible Participant; (b) notice of termination of the app licant's Engagement Arrangement has been given (whether by the applicant or by one or more members of the Group); or (c) t he Board has determined that the applicant is no lo nger eligible to p articipat e in the Plan. 3.8 Right to nominate (a) Unless otherwise expressly permitted in the Invitation, an Eligible Participant may only submit an Applica tion in the Eligible Participant's name and not on behalf of any other person. (b) If an Eligi ble Participant is permitte d in the Invitation, the Eligible Participant may, by notice in writing to the Board, nominate a Nominated Party in whose favour the Eligib le Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 8 Participant wishes to renounce the I nvitation in order for the Nominated Party to be gr anted the Securiti es the su bject of the Invitation. (c) The Board may in its discretion res olve not to allow a renunciation of an Invitation in favour of a Nominated Part y without giving any reason for that de cision. For the avoidance of doubt, the Board will not facilitate the renuncia tion of the Invitation as set out in clause 3.8(b) in favour of the Nominated Party where to do so would be inconsistent with: (i) ASIC Class Order 14/1000; or (ii) any covenant or other provisi on set out in an e xemption or modification granted from time to time by ASIC in respect of the Plan or which applies to the Plan pursuant to ASIC's power to exempt or modify the Corporations Act. (d) If the Board resolves to allow a renunciation of an I nvitati on in favour of a Nominated Party: (i) the Board may impose any such conditions that it thi nks fit in respect of that renunciation; and (ii) the Eligible Participant must proc ure that the permitted Nominated Party accepts the Invitation made to the Eligible Partici pant and that both the Elig ible Participant and the Nominated Party agree to be bound b y the Rules and execute any documents required by the Company in order to recei ve the grant and to give effect to these Rules. (e) If Securities are granted to a Nominated P arty nominated by an Eligib le Participant, then to the extent necessary to give effect to the intent of these Rules, the Eligible Participant will continue to be trea ted as the Participant. 3.9 Multiple Invitations The Board may invite an Eligible P articipant to apply for any n umber and type of Security, notwithstanding that the Eligible Partici pant has previously been invited to apply for Securities. 4 Grant of Securities 4.1 C ompany to grant Securities Following receipt of a duly completed and signed Application Fo rm together with a ll applic able Ancillary Documentation, the Company will, to the exten t that it has accepted such Application, grant the Participant the relevant num ber and type of Securities, subject to the terms and conditions set out in the Invitation, these Rules and t he Ancill ary Documentation. 4.2 Certificate of Security Following the gra nt of a Security, the Company will issue to the Participant a Certificate. 5 Term s of Convertible Securities 5.1 Participant's rights Prior to a Convertible Security being exe rcised in accordan ce with c lause 7 : (a) a Parti cipant does not have any interest (legal, equitable or otherwise) in any Share the subject of the Convertible Security other than those expressly set out in these Rules; and (b) a Participant is not e ntitled to: Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 9 (i) notice of, or to vote or attend at, a meeting of the shareholders of the Company; and (ii) receive any dividends declared by the Com pany, by virtue of holding the Convertible Security. 5.2 Restriction of dealing Unless determi ned otherwise by t he Board in its absolute discretion, or the relevant dealing is effec ted by force of law on death or legal incapacity to the Participant's legal per sonal representative, a Participant may not sell, assign, transfer, grant a Security Inter est over, collater al ise a m argin loan against, utilise for the purposes of short sellin g, enter into a Derivative with reference to, or otherwise deal with a Converti ble Security that has been granted to them. The Convertible Security is forfeited immediat ely on purported s al e, assi gnment, transfer, dealing or grant of a Security Interest ot her than in accordance with these Rules. 5.3 Prohibition on hedging A Participant m ust not enter into any arrangement for the purpose of hedging their economic exposure to a Convertible Secur it y that has been granted to them. For the avoidance of doubt, a Part icipant includes any contractor or consultant to a member of the Group. 5.4 Registe r of Convertible Securities Each Convertible Security granted under these Rules will be re gistered in the ap pr opriate register of the Company. 5.5 Listing Unless determined otherwis e by the Board in its absolute discretion, a Convertible Security granted under the Plan will not be quoted on the ASX or any other recognised exchange. 6 Vesting of Conve rtible Securitie s 6.1 Vesting A Convertible Security will vest when a Vesting Notice in res pect of that Convertible Security is given to the Participant. 6.2 Waiver of Vestin g Condition A Vesting Condition for a Convertible Security may, subject to Applicable Laws , be waived by the Board by written notice to the relevant Participant and on such term s and conditions as determined by the Board and set out in that notice. 7 Exercis e of Convertible Securities 7.1 Exercise of Convertible Securities (a) A Convertible Security may n ot be exercised u nless and until that Convertible Security has vested in accordance wi th clause 6 , or such earlier date o n which the Participant is entitled to exercise that Convertible Security in accordance wi th these Rules. (b) To exercise a Convertible Sec urity, the Participant must: (i) deliver a sig ned Notice of Exercise; and (ii) subject to clause 7.2 , pay the Exercise Price (if any) to or as directed by the Company, at any t ime prior to the e arlier of : Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 10 (iii) any date specified in the Vesting Notice; and (iv) the Expiry D at e. For the avoidance of doubt and subject to clause 7.2 , the total Exercise Price payable by the Participant on exercise of their Convertible Securiti es is the Exercise Price multiplied by the number of Convert ible Securities being exercised by that Partic ipant, rounded up to the nearest cent. (c) If the Participant does not deliver a signed Notice of Exercise and (subject to clau se 7.2 ) pay the Exercise Price to or as dir ected by the Company in relation to a Convertible Security by the requisite dat e, that Con vertible Security will automatically be forfeited. 7.2 Cashless exercise of Convert ible Securities At the time of exercise of the Convertible Securities, subject to Board approval at that time, the Participant may elect not to be required to provide payment of the Exercise Price for the number of Convertible Securities specified in a Not ice of Exercise bu t that on exercise of those Convertible Securities the Company will t ransfer or allot to the Participant that number of Shares equal in value to the positive d ifference between the then Market Value of the Shares at the time of exercise a nd the Exercise Pr ice that would otherwise be payable to exercise those Convertible Sec urities (with the number of Shares rounded down to the nearest whole Share). 8 De livery of Shares on exercise of Convertible Securities As soon as practicable after the va lid exercise of a Convertib le Security by a Participant in accordance with clause 7 , the Company will: (a) issue, allocate or cause to be transferred to that Participant the num ber of Shares to which the Participant is entitled under these Rul es; and (b) issue a substitute Certificate for any remaining une xercised Convertible Securities held by that Participant. 9 Forfeiture of Convert ible Securities 9.1 Leaver Where a Participant who holds Convertible Securities becomes a Leav er, all unvested C onvertibl e Securities will automatically be forfeited by the Particip ant, unless the Board otherwise determines in its discretion to permit some or all of the Convertible Securiti es to vest. 9.2 Fraudulent or dishonest actions Where the Board determines that a Particip ant has: (a) acted fraudulently or dishonestly; or (b) acted neglige ntly; or (c) acted in contravention of a Group policy, including but not limited to the any one or more of the fol lowing: (i) anti - bribery and anti - corruption policy; (ii) board char ter; (iii) continuous di sclosure policy; (iv) code of conduct; Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 11 (v) securities trading policy, and in p articular, where a Participant engages in trading during a blackout period or o therwise trades in a manner tha t may contravene the insider trading provisions in the Corp orations Act; (vi) soci al media policy; and (vii) statement of values; or (d) wilfully breached his or her duties to the Group, including but not limited to breaching a material ter m of an employment, executive s ervices or consultancy agreement (or equivalent), the Board may in its discre tion deem all unvested Convertible Securities held by that Participan t to have been forfeited. 9.3 Failure to satisfy Vesting Conditions Unless otherwis e stated in the Invitation or d etermined by the Board, a Convertible Security which has no t yet vested will be forfei ted immediately on the date that the Board determines (actin g reasonably and in good faith) that any applicable Vesting Conditions have not been met or cannot be met by t he relevant date. 9.4 Insolvency Unless otherwise stated in the Invitation or det ermined b y the Board, a Convertible Security held by a Participant in accordance with these Rules will be forfeited immediately on the date that the Participant becomes Insolvent. 9.5 Other forfeiture events Unless the Board otherwise determi nes, or as otherwi se set ou t in these Rules, any Convertible Securities which have not yet vested will be automatically forfeited on the Expiry Date. 9.6 Discretion to de termine that the Convertible Se curities are not forfeited Notwithstanding clauses 9.1 to 9.5 (inclusive), the Board may decide (on any conditions which it thinks fit) t hat some or all of the Participant's Convertible Securities will not be forfeited at that time, but will be forfeited a t the time and subject to the conditions it may specify by written notice to the Participant. 9.7 Voluntary forfeiture A Participant may by w ritten notice to the Company voluntarily forfeit their Convertible Securities for no consi deration. 9.8 Applicat ion of Pa rt 2D.2 Division 2 of the Corporations Act (a) This clause 9.8 applies to all termination payments to which Part 2D.2 Division 2 of the Corporations Act applies. (b) Notwithstanding any other p rovision of these Rules, in the absence of shareholder approval, the Company is not req uired to provide, or procure the provision, of any benefit under these Rules wh ich is not permitted by Part 2D.2 Division 2 of the Corporations Act. (c) Any benefits require d to be provided t o a Parti cipant in accordance with these Rules will , by operation of this clause, be reduced to ensure compliance with Part 2D.2 of the Corporations Act and the provision of such reduced benefit shall constitute full satisfaction of the o bligations of each member o f the Group. In the event of overpayment t o a Participant, t he Participant must, on receiving written notice from the Board, Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 12 immediately re pay any monies or benefits specified in such notice to ensure compliance with Part 2D.2 of the Corporations Act. (d) Wher e clause 9.8(b) applies, the Company may s eek or not seek shareholder approval in its discretio n. 10 Effect of Forfeiture of Convertible Securities Where a Convertible Security has been fo rfeited in accorda nce with these Rules: (a) the Convertible Security will automatically lap se; (b) the Participant o r the Participant's agent or attorney must sign any transf er documents required by the Company to effect the forfeiture of that Convertible Security ; and (c) the Company will not be liable for any damages or other amounts to the Participan t in respect of that Convertible Security. 11 Change of Control Notwithstanding an y other provisions of the Rules, if a Change of Control Event occurs, or the Board determi nes that such an e vent is l ikely to occur, the Board may in its discretion determine th e manner in which any or all of the Participant's Convertible Securities will b e dealt with, including, without limitation, in a manner that allows the Participant to pa rticipate in and/o r benefit from any transaction arising from or in connection with the Change of C ontrol Event. 12 Rights attaching to Plan Shares 12.1 Plan Shares to rank e qually All Plan Shares will rank pari passu in all respects with the Shares of the same cl ass for the time b eing on i ssue except for any rights attaching to the Shares by refere nce to a record date prior to the date of the allotment or transfer of the Plan Shares. 12.2 Listing If Plan Shares are in the same class as Shares which are listed on the AS X, the Company wil l apply f or quotation of the Plan Shares issued (or any unquoted Plan Shares transferred) within the time required by the Listing Rules after the da te of allotment. 12.3 Dividends A Participant will be entitled to any dividends declared and di stributed by the C ompany on the Plan Shares which, at the closing date for determining entitle ment to such dividends, are standing to the account of the Participant ( or a Trustee for and on behalf of the Participant). 12.4 Dividend reinvestment plan A Participa nt may participate in any d ividend reinvestment plan operated by the Company in respect of Pla n Shares held by the Participant (or a Trustee for and on behalf of the Participant). Shares issued under any dividend reinvestment plan operated by the Company w ill be subject to the same terms and conditions as the Plan Shares held by the Particip ant (or a Trustee for and on behalf of the Participant) unless the Board determ ines otherwise. 12.5 Voting rights A Participant may exercise any voting rights attaching to Pl an Shares held by the Parti cipant (or a Trustee for and on behalf of the Participant). Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 13 13 Di sposal Restrictions on Plan Shares 13.1 Disposal restriction If the Invitation pro vides that any Plan Shares are subject to any restrictions as to the disposal or other dea ling by a Particip ant for a period, the Board may implement any procedure it deems appr op riate to ensure the compliance by the Participant with this restriction, incl uding but not limited to imposing an ASX Holding Lock (where applicable) on the Plan Share s or using an empl oyee shar e trust to hold the Plan Shares during the relevant restrict io n period. 13.2 Participant's undertaking For so long as a Plan Share is subject to any disposal restrictions under this Plan, the Participant will not: (a) transfer, encumber o r otherwise dispos e of, or have a Security Interest granted over that Plan Share; or (b) ta ke any action or permit another person to take any action to remove or circumve nt the disposal restrictions without the express written consent of the Company. 13.3 Expiry of restriction Subje ct at all times to the Share Trading Policy, upon the expiry of any d isposal restrictions over a Plan Share, the Company will take all action necess ary to ensure that the Participant can deal with that Plan Share. 13.4 Share entitlements For t he avoidance of do ubt, the imposition of a disposal restriction on a Plan Share held by a Participant will not affect the Participant's entitlement to receive a notic e of, or to vote or attend at, a meeting of the members of the Company, and to receive any dividends declare d by the Company during the relevant disposal restriction period on t hat Plan Share. If an employee share trust arrangement is implemented in respec t of this Plan, the Board may implement such procedures it deems appropriate to give effec t to the intent of this cla use 13.4 . 14 Irrevo cable Power of Attorney In order to e nsure compliance with these Rules, each Pa rticipant must grant an irrevocable power of attorney (in the form set out in the Invitati on or such other f orm deter mined by the Board) to any person nominated from time to tim e by the Board. 15 Adjustment of Co nvertible Securities 15.1 Reorganisation If there is a reorganisation of the issued share capital of the Company (including any subdivision, c onsolidation, redu ction, re turn or cancellation of such issued capital of the Company), the rights of each Participant holding Convertible Securities will be changed to the extent necessary to comply with the Listing Rules applicable to a reorganisation of capital at the ti me of the reorganisation. 15.2 Bonus Issue (a) If Shares are issued by the Com pany pro rata to shareholders ge nerally by way of bonus issue (other than an is sue in lieu of dividends or by way of dividend reinvestment), the holder of Convertible Se curities is entitl ed, upon exercise of the Convertible Securities, to receive, in addit ion to the Shares in respect of which the Convertible Securities are Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 14 exercised and without the payment of any further consideration, an allotment of as many additional S hares as would hav e been is sued to a shareholder who, on the date for determining entit lements under the bonus issue, h eld Shares equal in number to the Shares in res pect of which the Convertible Securities are exercised. (b) Additional Shares to which the hol der of Convertible Securiti es becomes so entitled will, as from the time Shares are iss ued pursuant to the bonus issue and until those additional Shares are allotted, be regarded as Shares in respect of which the Convertible Securities are exercised for th e purposes of subs equent ap plications of clause 15.2(a) , and any adjustments which, after the time just mentioned, are mad e under clause 15.1 to the number of Shares wi ll also be made to the addi tional Shares. 15.3 Rights Issue Unless otherwise determined by t he Board, a holder of Convertible Securities does not have the right to partici pate in a pro rata issue of Shares made b y the Company or sell renounceable rights. 15.4 No oth er participation S ubject to clauses 15.1 to 15.3 (inclusive), during the curre ncy of any Convertible Securities and prior to their exercise, the holders of Convertible Securities are not entitled to particip ate in any new issue of Shares of the Company as a result of their holding of Convertible Securities. 15.5 Rounding Until a Converti ble Security is exercised, all calculations adjusting the number of Shares must be carried out to include al l fractio ns, but when a Convertible Security is exercised and is sett led in Shares the number of Shares to be issued or transferred to the Participa nt is rounded down to the next lowest whole number. 15.6 Application of adjustment (a) In the appli cation of this cla use 15 , the Board may (as far as possible) make whatever adjustments it deems necessary or desirable to ensure that the consequences of that application are fair as between the Participants and the holders of oth er securi ties in the Company, subject to the Listing Rules and ot her Applicable Laws. (b) Unless otherwise provided in these Rules, a Participant has no right to: (i) change the Exercise Price; or (ii) change the number of Shares over which the Conver tible Security can be exerc ised. 16 Administration of the Plan 16.1 Board administration The Pl an will be administered by the Board. For the avoidance of doubt, the Board may make further provisions for the operation of the Plan which are consistent with these Rul es. 16.2 Board powers a nd discre tions Any power or discretion which is conferred on the Boar d by these Rules may be exercised in its sole and absolute discretion. The Boar d does not, in exercising any power or discretion under these Rules, owe any fiduciary or other obligations to any El igible Participant or Participant. Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 15 16.3 Dele gation of Board power s and discretions Any power or discretion which is conferred on the Board by th ese Rules (including, without limitation, the power to invite Eligible Participants to par ticipate in the Pl an and to determine the terms and conditions of the Securities) may b e delegated by the Board to: (a) a committee consisting of such directors, other of ficers or employees of the Group, or any combination of such persons as the Board thinks f it; (b) a member of th e Group; or (c) a third party, for such periods and on such conditions as the Board thinks fit. 16.4 Documents The Company may from time to time require an E ligible Participant invited to participate in the Plan or a Participant or a person nomina ted by an Eligible Particip ant under clause 3.8 to complete and re turn such other documents as may be required by law to b e completed by that person or entity, or such other documents which the Company considers should, for legal, taxation and/or administrative reasons, be completed by that Eligibl e Participant, Particip ant or person in order to give effect to the intent of t he Plan. 16.5 Decisions final Every exercise of a discretion by the Board (or its delegates) an d any decision by the Board (or its delegates) regarding the interpretation, effect or application of these Ru les and all calculations and determination made by the B oard under these Rules are final, conclusive and binding in the absence of manifest error. 17 Trust The Board m ay, in it s discretion, use an employee share trust or other mechanism for the purposes of holding Shares and Plan Shares before or after the exercis e of a Convertible Security or delivering any Plan Shares arising from exercise of a Conve rtible Security un der these Rules on such terms and conditions as determined by the Boa rd. For the avoida nce of doubt, the Board may do all things necessary for the e stablishment, administration, operation and funding of an employee share trust. 18 Restrictio ns on and amendmen ts to the Plan 18.1 Compliance with Applicable Laws (a) Notwithstanding these Rules or any terms of a Security, no Security may be offered, granted, vested o r exercised, and no Share may be issued or transferred, if to do so would contravene any A pplicable Laws. (b) In particul ar, the Company must have reasonable grounds to believe, whe n making an Invitation, that the total number of Plan Shares that may be issued , or acquired upon exercise of Convertible Securities offered, under an Invitation, when a ggregated with the number o f Shares issued or that may be issued as a result of offers made in r eliance on ASIC Class Order 14/1000 at any time during the previous 3 year period under: (i) an employee incentive scheme covered by ASIC Class Oder 14/1000; or (ii) an ASIC exempt arrang ement of a similar kind to an employee incentive scheme, but disregar ding any offer made or securities issued in the capital of the Company by way o f or as a result of: Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 16 (iii) an offer to a person situated at the time of receipt of the offer out side Australia; (iv) an offer th at did not need disclosure to investors because of section 7 08 of the Corporations Act (exempts the requirement for a disclosure document f or the issue of securities in certain circumstances to investors who are deemed to have su fficient investmen t knowled ge to make informed decisions, including professional invest ors, soph isticated investors and senior managers of the Company); or (v) a n offer m ade under a disclosure document, would exceed 5% (or such other maximum permitted under an y Applicable Law) of the to tal number of Shares on issue at the date of the Invitation. 18.2 Amendmen t of Plan (a) Subject to clause 18.2(b) , the Board may: (i) at any time amend any provisions of these Rules, including (with out limitation) th e terms a nd conditions upon which any Securities have been granted un der the Plan; and (ii) determine that any amendments to th ese Rules be given retrosp ective effect, immediate effect or future effect. (b) No amendment to any provision of these R ules may be made i f the ame ndment materially reduces the rights of any Participant as t hey existed before the date of the amendment, other t han an amendment: (i) introduc ed primarily: (A) for the purposes of complying with or conforming to present or future legisl ation governing or regulati ng the Plan or like plans; (B) to correct any manifest error or mistake; (C) to allow the implementation of an employee s hare trust arrangement pur suant to clause 17 ; (D) to enable the Plan or any member of the Grou p to comp ly with its constituent documents, and any other Applicable Laws; and/or (E) to take into consideration possible adverse taxation implications in respect of the Plan including changes to applicable taxation legislation or the interpr etation of that le gislation by a court of competent jurisdiction or any rulings from ta xation authorities administering such legislation; or (ii) agreed to in writing by a ll Participant(s). (c) As soon as reasonably practicable after making any amendment to any pro vision of these Ru les, the Board will give notice of the amendment to each Participant affected by the amendment. Failure by the Board to notify a Participant of any amendment will not invalidate the amendment as it applies to that Participant. 19 Duration 19.1 Te rmination The Plan Continue s in operation until the Board decides to end it. Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 17 19.2 Suspension The Board may from time to time suspend the operation of the Plan for a fixed period or indefinitely, and may end any suspension. 19.3 Effect of termination / suspension If the Plan is termin ated or s uspended for any reason, that termination or suspension must not prejudice the accrued rights of the Participants. 19.4 Cancellation of Converti ble Securi ties Notwithstanding any other provisions of these Rules, but subject at all tim es to any Applicab le Laws a nd regulations, if a Participant and the Company (acting by the Board) agree in writing that some or all of the Securities granted to that Participan t are to be cancelled on a specified date or on the occurrence of a particular e vent, then those S ecurities may be cancelled in the manner agreed between the Company a nd the Participant. 20 Miscellaneous 20.1 Rights of Participants Nothing in these Rules : (a) con fers on any person any right or expectation to become a Participant, or the right to be invited to appl y for, or be offered or to receive any Securities; (b) confers on any per son the right to continue as an employee or officer of any member of the Group (as t he case may be); (c) affects the rights of any member of the Group to terminate the Engag ement Arrangement of an Eli gible Participant; (d) forms part of any contract of service bet ween an Eligible Participant and any member of the Group; (e) may be used to increa se ri ghts of compensation or damages in any action brought against a member of the Group i n respect of an En gagement Arrangement; (f) confers any legal or equitable right on an Elig ible Participant whatsoever to take action against any member of the Group in r espec t of their Engagement Arrangement; or (g) confers on an Eligible Participant any rights t o compensation or damages i n consequence of the termination of their Engagement Arrange ment by any member of the Group for any reason whatsoever including ceasing to have rights under the Plan as a result of such termination. 20.2 Non - exclusivity (a) This Plan is n ot the sole means by which all members of the Group intend to provide incentives to Eli gible Participants. Nothing in this Plan is intended to restrict any member of the G roup from remunerating or otherwise rewarding employees or directors of any member of the Group outside the Plan . (b) Participation in the Plan does not affect, and is not affe cted by, participation in any other incentive or other scheme operated by any m ember of the Group unless the terms of that other scheme provide otherwise. 20.3 Notice (a) Any not ice or other commu nication under or concerning the Plan is validly given: Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 18 (i) to a Particip ant, if delivered personally to the addressee or sent by prepaid post to the Pa rtici pant's last known residential address, or sent to the Participant by facsimile or ema il at the Particip ant's pla ce of work; and (ii) to the Company, if delivered or sent by prep aid post addressed to the company secretary at the Company's registered office (or a ny other address the Board specifies), or as otherwise notified by the Company from t ime to time. (b) Deliv ery of no tices Subject to clause 20.3(a) , a notice or other communication will be deemed to have been se rved: (i) if delivered by hand, at the time of delivery; (ii) if sent by facsimile or electronic ma il, on receipt of a success ful transmission notice, return receipt or such other confir mation by which the sender can reasonably verify delivery; or (iii) if posted, and pr ovided it is properly addressed and stamped , 48 hours after mailing in Australia and 7 day s after mailing ou tside Aus tralia. 20.4 Further assurances All parties that have agreed to b e bound by these Rules must do all things reasonably necessary to give full eff ect to this Plan and the transactions conte mplated by this Plan. 20.5 Costs and charges (a) The Com pany will be respo nsible fo r any brokerage, commission, stamp duty or other costs payab le in relation to the issue or transfer of Plan Shares to or on behalf of a Par ticipant. (b) Each Participant will be responsi ble for all costs associated with the disposal of a Plan Share by that Par ticipant. 20.6 No representation or warranty (a) The Company makes no representation or warranty as to the value of Securities or with respect to an y tax matters affecting any Eligible Partic ipant or Participant in connection with the Pla n. (b) Neither the Com pany, nor any of its directors, officers or employees are liable for anything done or omitted to be done by such person or any other person with res pect to price, time, quantity or other cond itions and circumstances of the issue or acquis ition of Shares he reunder, with respect of any fluctuations in the market price of Shar es, or in any other manner related to the Plan. 20.7 Data protection By participatin g in the Plan, the Participant consents to the holding and processing of personal data pro vided by the Parti cipant fo r the purposes of the Plan. These purposes include, but are not limited to: (a) administering and maintaining records held in respect to a Part icipant; (b) providing information to members o f the Group, registrars, brokers or third party administrators of the Plan (if any) or advisers of the Board; and Employee Securities Incentive Plan NRHP 517353373v1 121029617 10.11.2021 page 19 (c) providing informatio n to corporate advisers or potential future third party purchasers in connectio n with a sale of shares in a member of the Group, or the business and assets of a member o f the Group. 20.8 Gover ning law (a) This Plan is governed by the laws of Western Australia, Aust ralia. (b) Each Participant submits to the non - exclusive jurisdiction of the courts of Western Australia, Australia, and the c ourts competent to determine appeals from those courts, with resp ect to an y proceedings that may be brought in connection with these R ules. 20.9 Waiver of rights (a) A waiver of any right, power, authority, discretion or r emedy arising upon a breach of or default u nder these Rules must be in writing and signed by the party grant ing the w aiver, and may be subject to such terms and conditions as de termined by the party granting the waiver. (b) A failure or delay in the exercise, or partial exercise, of a right, power, aut hority, discretion or remedy arising from a bre ach of or default under the se Rules, does not prevent the exercise of or result in a wa iver of that right, power, authority, discretion or remedy. (c) A party is not enti tled to rely on a delay in the exercise or non - exercise of a right, power, authority, disc retion or remedy a rising fr om a breach of these Rules or default under these Rules as c onstituting a waiver of that right, power, authority, discretion or remedy. (d) A p arty may not rely on any conduct of another party as a defence to the exercise of a right, power, authority, discreti on or remedy by that other party. (e) A waiver is only effective in the specific instance and for the specific purpose for which it is given an d subject to any specific terms and conditi ons as specified in the waiver. (f) This clause may not itself be wai ved excep t in writing.
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